Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C124801
Marchiano, P.J.
In this case one drug dealer murdered another. According to the evidence, defendant Terrell Love shot the unarmed victim twice and then stood over him and delivered a “kill shot” to his head. A jury convicted him of second degree murder and the attempted murder of the victim’s girlfriend, whom he shot while she sat in a nearby car. Defendant primarily contends the trial court violated his Fifth Amendment right not to testify, and his Sixth Amendment right to counsel, by “effectively conditioning” the admission of certain expert testimony on defendant’s testifying on his own behalf. We disagree and affirm.
I. FACTS
The murder and attempted murder in this case took place in March of 1995. Defendant was originally convicted in December 1999. We affirmed the judgment of conviction. (People v. Love (Sept. 25, 2002, A090513) [nonpub. opn.].) The judgment was set aside after a grant of federal habeas relief. (Love v. Yates (N.D.Cal. 2008) 586 F.Supp.2d. 1155, 1190.) Defendant was retried and convicted in 2009. The facts set forth in this opinion are from defendant’s second trial.
Under applicable standards of appellate review, we must view the facts in the light most favorable to the judgment of conviction, and presume in support of the judgment the existence of every fact which the jury could reasonably find from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Neufer (1994) 30 Cal.App.4th 244, 247.)
The People’s Case
The victim, Sean Johnson, sold drugs on Hayes Street in Oakland. His girlfriend, Collette McDaniels, testified that in the early evening of March 3, 1995, Johnson picked her up and drove her to an apartment on Hayes Street. McDaniels and one or two women who were at the apartment went down the street to a liquor store for beer. On their way back, they saw defendant pinning Johnson to the trunk of a parked car, holding a gun to his head. McDaniels described the weapon as a black semiautomatic handgun with a 10-inch barrel. McDaniels, who had no difficulty seeing defendant’s face, heard him tell Johnson, “[Y]ou are going [to] die tonight.”
Johnson told McDaniels to go inside the apartment. She saw three to five people across the street who were encouraging defendant’s threatening Johnson. She went inside the apartment. Johnson came in a few minutes later, and was upset. Apparently, he told her defendant was angry because Johnson was selling drugs in front of defendant’s grandparents’ house. Johnson called some friends on the telephone. Two men described as Johnson’s “home boys, ” “T.” (aka “Red Card”) and “Mario, ” arrived at the apartment. Johnson pulled out a gun, that was apparently a double-barreled shotgun with an eight-inch barrel and a small handle, and gave it to one of the “home boys.”
Later that evening, Johnson drove McDaniels, Red Card, and Mario to the Vintage Inn on Seminary Avenue. Either Red Card or Mario had the shotgun. They spoke to a man named “Chaka” in front of the Vintage Inn, but Chaka told Johnson he was too drunk to do anything for him.
Johnson dropped off Mario and Red Card and drove off with McDaniels. After circling the block, Johnson stopped and got out of the car at the intersection of Fortune Way and Seminary. Johnson told McDaniels to park the car. She parked three car lengths down Fortune Way, facing the intersection with Seminary, as well as the Vintage Inn, which was on the far side of Seminary.
As she sat in the parked car, McDaniels saw defendant drive a car up Fortune Way, park, and get out. She saw defendant and Johnson approach each other in the street. Johnson raised his hands up to show they were empty, and said, “Man, I ain’t got no gat [i.e., gun]. Let’s talk about this....” Defendant replied, “Too bad. You should have thought about that before you came up here.” Defendant then shot Johnson.
McDaniels testified she was looking directly at defendant when he shot Johnson with what appeared to be a semiautomatic handgun. Johnson was about 15 feet from defendant when he fired two shots. The victim fell to the ground. Defendant walked up to Johnson, kicked him to turn him over so that he was face up, and then fired a third shot into his head at close range.
McDaniels screamed and sounded the car horn. Defendant approached the car, came up to McDaniels’ closed window, and pointed the gun at her. McDaniels ducked down on the seat. Defendant shot at her through the window, showering her with glass. The bullet struck her in the buttocks, causing her long-term injury.
McDaniels testified that when she first saw the man driving up Fortune Way and approaching Johnson, she did not know the person was defendant―but she recognized defendant when he came up to the parked car and pointed the gun at her. She also picked defendant’s picture from a display of six photographs shown to her at the hospital after she was shot. Before the first preliminary hearing in this matter, she picked defendant from a six-person live lineup.
On cross-examination, McDaniels testified that Johnson, Red Card and Mario were members of the gang known as the Black Guerilla Family (BGF). Johnson’s BGF nickname was “Scar Face.” She did not know if Chaka was a BGF member.
Lisa Travillian, Johnson’s cousin, testified that she, McDaniels, and a third woman walked from the apartment building to the liquor store the afternoon of the day of the killing. As they walked back to the apartment, the women saw Johnson arguing with some men in the street. One of the men said, “Don’t disrespect, don’t disrespect.” Johnson replied, “I am not going nowhere.” One of the men said he was going to get his brother. Travillian and her companions went into one of the apartments in the building.
At some point, Travillian went back out into the street, where Johnson was still arguing with several men. A man she identified as defendant appeared with a black semiautomatic handgun which was about 11 inches long. Travillian knew Johnson did not have a gun because he just got back from court; she had never seen him with a gun. Johnson told Travillian to go inside the apartment. Defendant and the victim began “tussling.” A man across the street said, “Shoot him man, just shoot him.” Johnson later came into the apartment, and seemed “shocked” and “scared.”
Johnson’s body was found on Fortune Way about 44 feet from the intersection with Seminary. There was a spent slug in Johnson’s clothing. Police officers found three.45 shell casings near McDaniels’ car, and two more.45 casings between the car and Johnson’s body. They also found a live round nearby. In another area, apparently across the intersection or further down one of the streets, police officers found four additional shell casings.
A criminalist testified the five.45 shell casings found in the area of McDaniels’ car were fired from the same.45 gun, and the live round was ejected from that same weapon. The four shell casings found in the other area across the intersection were fired from the same.45 gun, but not the same gun which fired the five shells found near McDaniels’ car.
The autopsy physician testified that Johnson had three entry wounds: through and through wounds to the torso and head and a grazing wound on the inner forearm. The head wound was consistent with a.45 bullet and the weapon could not have been farther away than 18 to 24 inches when the head shot was fired. The head wound was fatal and the torso wound was likely to have been. Johnson’s hands bore no smoke, powder, or stippling, suggesting that he had not fired a gun.
Chaka, whose real name was Milton Pringle, also testified for the People. Pringle and Johnson were both members of BGF at the time of the shooting.
Some time between 11:00 p.m. and midnight on the night of the murder, Pringle was near the entrance of the Vintage Inn. He saw defendant there, and 10 to 15 minutes later he saw Johnson with Mario, Red Card, and Pringle’s nephew Horel. Red Card brought Johnson and Horel to Pringle and asked Pringle to mediate a dispute which Pringle thought was between Johnson and Horel. Apparently, neither man said anything to Pringle, and they both walked away down Seminary. Defendant walked across Seminary toward Fortune Way. Red Card or Mario told Pringle something was going to happen as a result of the “misunderstanding” between Johnson and defendant. Pringle assumed this meant a fight, a stabbing or a shooting.
About 20 to 25 seconds later, Pringle heard shots from down Fortune Way. He heard five or six shots, and then after a pause, two or three more.
Pringle was arrested for another crime six months after the shooting. He saw defendant at the courthouse. Defendant asked him to tell defendant’s attorney that he was not present at the murder scene. Pringle also got two letters in jail from defendant, in which defendant told him he would put money on Pringle’s books in the jail in exchange for Pringle telling an investigator that he witnessed the shooting and defendant was not the shooter.
Pringle testified at some length about the BGF. He confirmed he had been a BGF member the night of the shooting. The BGF had a constitution, by laws, and a code of ethics. BGF members were required to take an oath which Pringle, with obvious reluctance, recited from the witness stand: “If I should break my stride or falter at my comrade’s side, this oath shall kill me.... If I should submit to greed and lust or misuse the people’s trust, this oath shall kill me. If I be slow to take a stand and show fear to any man, this oath shall kill me. If I become lax in discipline and in time refuse my hand, this oath shall kill me. Long live the spirit of Comrade Jesse George Jackson, long live the BGF.”
When Pringle was told he had to recite the oath, he said: “I already know what’s coming. If I break the oath, I will break anything, then. My word ain’t nothing.”
Pringle testified that BGF members are required to help other members retaliate for assaults and threats against members, or for interference with a member’s drug dealing activity. Such retaliation could be verbal and did not necessarily include violence.
Mario, whose full name was Mario Gaines, testified he was currently a minister and had left behind his involvement with drugs and alcohol. In addition to his trial testimony, the People admitted his testimony from the preliminary hearing and a tape recording of an interview with police officers on March 22, 1995, which was played for the jury.
Gaines testified that on the day of the murder he was called to the Hayes Street apartment and Johnson’s brother drove him there. The brother dropped him off on the street behind the apartment and told him to climb the fence. Inside the apartment, Gaines found Johnson “uptight” and upset. Johnson told Gaines he had been told not to sell drugs in front of someone’s grandmother’s apartment, and that he wanted to go and talk to the man who had threatened him. Johnson told Gaines the man who threatened him had been armed. Johnson said he wanted to resolve the matter peaceably because he had just got out of jail and did not want to go back.
At the preliminary hearing, Gaines testified Johnson had given him a 9mm handgun, and Gaines said he saw a sawed-off shotgun―presumably the same weapon seen by McDaniels―in the apartment. At trial, he testified Johnson gave him the handgun, but later testified it was Johnson’s brother who gave him the handgun. He also testified that he had only a general recollection that there was another gun in the apartment.
Johnson drove Gaines, Red Card, and McDaniels toward Seminary and Bancroft. Gaines testified at trial and the preliminary hearing that neither Johnson nor Red Card were armed while in the car. About three blocks from the Vintage Inn Johnson dropped off Gaines and Red Card, so they could follow Johnson “and kind of cold trail to see what was going on.” Presumably, this is the point where McDaniels drove the car to the parking space.
The three men walked to the Vintage Inn where Johnson explained the situation to Pringle (aka Chaka). Red Card talked to Pringle about mediating the dispute between Johnson and defendant. Pringle said he couldn’t talk to defendant because defendant was stupid and hard headed.
Johnson walked away, across Seminary and down Fortune Way. Gaines saw Johnson walk down the center of Fortune Way, with his hands up at shoulder level with his palms forward. Johnson had nothing in his hands. He did not have a gun. Gaines heard Johnson say to a man, “I want to talk.” Gaines saw the person that Johnson spoke to walk over to a car parked on Fortune Way, reach through the driver’s window, then come back. In his interview with police, Gaines said he saw the person point a gun at Johnson and start shooting. Someone then started firing at Gaines from another area across the street. Gaines started running, but he did have a chance to see the armed man walk up to McDaniels’ car and point the gun at it.
At trial, Gaines testified he could not remember seeing the person doing anything, including pointing something, after he came back from bending into the car.
At the preliminary hearing, Gaines testified defendant was not the shooter. At trial, he testified he did not get a good look at the shooter with regard to his height, weight, build, clothing, or age.
Two investigators for the district attorney’s office testified they had interviewed a man named Lloyd Morris, who told them he saw defendant shoot Johnson. Morris told one investigator he witnessed the “kill shot” to the head, and that he never saw Johnson with a gun.
The Defense Case
Defendant testified as follows. He was 27 at the time of the shooting in 1995. He had been convicted of possession for sale of drugs in 1989, and assault with a deadly weapon (a baseball bat) in 1990. In 1995, he sold drugs on the street in the Seminary and Hayes area, or by page. He admitted it was possible he told police officers he made about $500 a day selling crack cocaine.
To enhance readability, we recite defendant’s testimony without such qualifiers as “defendant claimed that, ” or “according to defendant, ” with the understanding that defendant’s seemingly unqualified statements of fact may not be true, given the jury’s rejection of defendant’s testimony by the guilty verdicts, rejecting his defenses.
On the day of the shooting, his brother Mershell called him and told him Johnson and others were selling drugs in front of defendant’s grandmother’s house. Mershell had confronted the sellers, and they had become “belligerent” and “disrespectful.” Mershell was upset. Defendant said he would come by and talk to Johnson because he and Johnson were friends.
He parked his car at the scene of the shooting and talked to Johnson, telling him he heard there was a misunderstanding between Johnson and Mershell. Defendant had prior conversations with Johnson about selling drugs in front of his grandmother’s house, which he thought was disrespectful.
Johnson became “belligerent, hostile, and angry” and told defendant he did not “give a fuck” about Mershell. He told defendant, “Your brother don’t own these streets. I am BGF, and I can sell my drugs anywhere I want to and I don’t give a fuck.” Defendant became frustrated and punched Johnson twice. They “tussled.” Johnson grabbed defendant and defendant pushed Johnson away. Johnson ran away along the side of the apartment complex. This incident only lasted about 10 seconds. Defendant did not have a gun.
About 11:00 that night, defendant went to the Vintage Inn. He took a gun with him, but left it in his car because he thought he would be frisked going into the Vintage Inn. He left about 11:30. A woman told him some men outside were looking for him. He remembered the incident with Johnson and was scared because he knew Johnson belonged to the BGF. As he walked to his car he noticed Pringle.
Defendant walked across Seminary and down Fortune Way, where apparently his car was parked. He heard someone call out that they wanted to talk to him. He looked over his shoulder and saw Johnson and two others. He kept walking toward his car. Johnson again said he wanted to talk to him, and said he did not have a gun. Johnson held his left hand up in the air, but his right arm was hidden behind his back.
As defendant reached his car, a man standing next to Johnson began shooting, firing four to six shots. Defendant ducked and went into his car to retrieve his gun. He crouched against the car and waited until the shooting stopped. He saw Johnson coming toward him holding a sawed-off shotgun in his outstretched arm. Defendant pointed his gun at Johnson, advanced toward him, and fired two or three times. Defendant tried to wound Johnson, not kill him. Defendant initially said he was no closer than 28 feet to Johnson, then narrowed the distance to 16 feet, then 3 or 4 feet.
After Johnson fell, defendant turned toward his car to leave. But he was still concerned about the man next to Johnson who had shot at defendant. Then a man standing on a corner started shooting at him. Defendant noticed McDaniels’ car and saw there was someone in it. He couldn’t tell if it was a man or a woman, but he ran toward the car thinking the person was another BGF member. As he reached the car, it looked like the person was leaning over as if to get a weapon, so defendant fired one shot into the car. He then ran back to his car, got in, and drove away. He threw his.45 handgun into a garbage bin.
Defendant admitted he had asked Pringle to say he was not the shooter. He also admitted two prior assaults. He hit his ex-girlfriend’s sister with a baseball bat because she interfered with a fight between defendant and his ex-girlfriend and she owed him money. And while in jail in 1998 he and two other inmates fought with a fourth inmate, and defendant kicked him in the ribs. Furthermore, defendant admitted he had told police officers he was known as the type of person who “don’t take no shit.”
Daniel Vasquez is a former warden of San Quentin State Prison and a criminal justice consultant with over 30 years experience in the California Department of Corrections (CDC). He testified for defendant as an expert in gangs and gang operations, both in and out of prison. He testified that BGF members are sworn in with a “blood in and blood out” oath. This means “you are usually willing to spill blood to be part of... BGF, and your blood will be spilled if you try to drop out.” This entry oath is a separate oath from the one quoted above, which requires that a BGF member may forfeit his life if he falters or doesn’t kill an enemy. Members must be sophisticated criminals, and they refer to each other as “brother” or “comrade.” If a BGF member is attacked or insulted his fellow gang members will retaliate. If someone interfered with a BGF member doing his trade―i.e., drug dealing―on his “turf” in the streets, they “might be warned or... might just be directly attacked.” The BGF plans attacks on enemies, and operates in groups for superiority of force.
Rebuttal
Oakland Police Officer Andrew Barton also testified as a gang expert. He testified BGF was “more decentralized and disorganized” on Oakland streets in the 1990’s than it had been in the 1980’s, and that a request for help from a disrespected gang member could be refused depending on the rank of the member within the gang hierarchy and other factors.
The jury convicted defendant of the second degree murder of Johnson, the attempted murder of McDaniels, and possession of a firearm by a felon. The trial court sentenced defendant to 61 years to life.
II. DISCUSSION
The main issue in this case is defendant’s claim that the trial court violated his Fifth Amendment right not to testify and his Sixth Amendment right to counsel, by “effectively conditioning” the admission of Vasquez’ expert gang testimony on defendant’s testifying on his own behalf. Defendant also raises three evidentiary and instructional issues. We reject defendant’s contentions for the reasons stated below.
Alleged Conditioning of Vasquez’ Testimony on Defendant’s Testifying
After defendant identified Vasquez as a prospective defense witness, the People filed a motion in limine to exclude defendant from referring to any expert witness testimony, for instance during voir dire or his opening statement, prior to a hearing under Evidence Code section 402: “The People can only guess that Mr. Vasquez’s testimony would be about the Black Guerilla Family, a prison gang to which the victim purportedly belonged. Without any showing of relevance it is impossible to weigh the relevance against the potential for prejudice to the People pursuant to Evidence Code section 352.”
Subsequent statutory citations are to the Evidence Code.
At the hearing on the motion, defense counsel stated Vasquez would testify that Johnson, Pringle, Gaines, and Red Card―a group counsel described as “this little group that went out to kill Mr. Love”―were members of BGF, “and that’s documented in the discovery.” Vasquez would also testify about the BGF and related matters based on his experience as warden of San Quentin State Prison.
Counsel argued the group’s BGF membership was probative because of his theory of the case: “after the... altercation on Hayes Street... Johnson went around and, shall we say, gathered up a number of his comrades from the [BGF] and proceeded over to Fortune and Seminary where they went to locate and kill” defendant.
The prosecutor argued that without evidence of defendant’s knowledge of the BGF memberships of the group, there would be little relevance to the defense of self-defense: “I think we are a bit premature and I certainly can’t make [defendant] testify.” The prosecutor was also concerned that defense counsel would talk about Vasquez in his opening statement “and how he is going to tell [the jury] what horrible, horrible people the various witnesses are....”
The trial court agreed the key point was defendant’s knowledge: “So there would be no probative value for any expert testifying about BGF anything unless it is relevant on the issue, first, of self-defense and the defendant saying, yeah, I know they were all members of the BGF....” The court also expressed concern that references to expert testimony about BGF prior to the testimony of the People’s witnesses who were or had been gang members would amount to “character assassination” and a suggestion that “they’re bad actors because they’re members of the BGF.”
The trial court granted the motion to exclude reference to expert gang testimony in the defense opening statement, saying that to admit Vasquez’ testimony the court needed more information about defendant’s knowledge of the BGF memberships and offers of proof of the nature of the BGF witnesses’ testimony. The court would then have to make a determination under section 352.
Defense counsel promised at the motion hearing that he would not refer to a gang expert in voir dire or his opening statement, and seemed to promise, at the urging of the trial court, that he would not refer to BGF. But at the outset of his opening statement, defense counsel referred to Johnson as an ex-felon and a member of BGF, which he identified as a “violent prison gang” whose members “engage in community criminal activity in furtherance of their goals” when released from prison. Counsel outlined his theory of the case that, after the initial Hayes Street altercation, Johnson rounded up several BGF “comrades” and went after defendant in retaliation, with the intent to kill him. Counsel stressed that Johnson’s “comrades” acted out of “loyalty” to assist Johnson “in an endeavor to go kill” defendant because Johnson was told he could not establish a territory on Hayes Street to sell dope to support himself, having just got out of prison.
The trial court and the prosecutor apparently concluded that it was permissible for defense counsel to mention BGF in his opening statement because, by that time, it was clear lay witnesses would be testifying in reference to the gang.
After the testimony of McDaniels, Travillian, and a few other witnesses, but just before the testimony of Pringle, the court and the parties again discussed the issue of Vasquez’ testimony. Apparently, the prosecutor had requested a section 402 hearing in light of McDaniels’ testimony that Johnson, Gaines and Red Card were BGF members. The court asked defense counsel to explain the relevance and probative value of the testimony. Counsel again stated his premise that Vasquez’ testimony was probative on the issue of BGF retaliation for someone trying to exclude a member from selling drugs in his territory, and “the fact that this was a collection of BGF guys pulled together by... Johnson to go over and kill” defendant.
After a lengthy discussion with defense counsel, the court ruled that Vasquez’ testimony, at that point in the case, would be more prejudicial than probative under section 352. The court noted, correctly, there had yet to be any evidence of self-defense and the probative nature of the BGF testimony would depend on defendant’s knowledge: “[Y]our client hasn’t gotten up and said because what does become probative on a self-defense is what was in the mind of the individual at the time he acted purportedly under self-defense and what was his intent and state of mind, ... And if [defendant] says BGF, well, then... the issue for me at that point becomes not one of is it relevant that they’re in the BGF, but it is whether or not... under [section] 352, we want to bring an expert witness in to essentially say, [h]ere is how they operate, that’s what they do. And as far as I am concerned, if [defendant] knows what they do and how they operate, that’s kind of probative. But I am not ruling on that yet because that’s not before me.” The court again expressed concern that Vasquez’ testimony would be “improper character evidence” and an “improper impeachment tool” of prosecution witnesses―the jury would think they were “bad people” because they belonged to BGF.
The court told defense counsel he could raise the issue at a later point in the case. The court also told counsel that even if defendant testified, his testimony might not be sufficient to allow Vasquez’ testimony.
After the testimony of Pringle and Gaines and several other witnesses, the People rested. Defense counsel again raised the issue of Vasquez’ testimony, stating he wanted the court’s decision on whether to allow the testimony before he decided whether defendant should testify. The court responded: “[L]et me just make it very clear, whatever my ruling is about Vasquez, I am not in any way, shape, or form at all in my mind intimating, stating, thinking even about whether [defendant] testifies.” The court stated it was viewing Vasquez’ testimony as a separate issue, involving, in part, as-yet-undisclosed CDC records―which, presumably, Vasquez would explain to the jury―which might impeach Gaines by showing that he was in fact a BGF member, despite his denial on the stand. The court said, “I am not at all considering whether the defendant testifies or not. That is solely his right to and solely his right not to. So whatever I rule regarding Mr. Vasquez has nothing to do with whether I view the defendant having the right to testify or not testify and he has absolutely that right.”
The trial court elaborated: “[I]f [defendant] were to testify and [defendant] were to say that one of the reasons―if he put forth the self-defense, which you have indicated that he is likely to do, and certainly it is probative, the things [defendant] would have had in his mind at the time he acted ostensibly in self-defense, then if one of those factors were the fact that he thought these people were BGF and this is how BGF does and acts, then that certainly would bring that issue before the Court.
“[¶] I never ever said that that was absolutely a predicate, however, to my deciding whether or not Mr. Vasquez would or would not be allowed to testify. It would simply be that if your client did testify to that effect, then that would be a factor I would definitely consider in deciding whether or not Mr. Vasquez would testify. I can’t tell you, nor would I even know how you are going to present your defense case. And clearly since the defendant has an absolute right not to testify, I could never predicate my decisions about your other witness on whether he did or didn’t testify. I was simply outlining that if, in fact, that were the testimony, assuming he waived his... Fifth Amendment right not to testify, and did testify, that I would consider that in determining whether Mr. Vasquez could testify....”
Defense counsel declined the court’s offer for an immediate ruling, and asked that the matter be continued so he could obtain the CDC records. Counsel made it clear that the CDC records would affect his decision whether to have defendant testify.
CDC was willing to produce the records, but was concerned about the scope of their disclosure.
Subsequently, after in camera review, the trial court granted limited discovery of some of the CDC records. After that, defendant testified. Because defendant testified that Johnson told him he was a member of BGF, and that made him scared when the woman in the Vintage Inn told him a group of men were looking for him and made him think a BGF member was in McDaniels’ car, the trial court ruled there was sufficient evidence of defendant’s state of mind to allow Vasquez’ testimony about BGF and the way they operate. Such testimony, especially about BGF operations―presumably including retaliation―would corroborate defendant’s fear that Johnson and his friends were coming after him and would be pertinent to the defense of self-defense. Vasquez then testified.
Defendant now claims the trial court effectively conditioned the admission of Vasquez’ expert testimony on defendant waiving his Fifth Amendment privilege against self-incrimination and taking the stand. As we have pointed out in the factual recitation above, that is simply not the case. The trial court considered the relevance, and the probity versus prejudice, of Vasquez’ testimony as a separate issue from whether defendant would testify.
Moreover, the realities of this case impelled defendant to decide to testify to attempt to establish his claim of self-defense. While the parties agree that self-defense or imperfect self-defense can be shown from the People’s case without the defendant testifying, that was not the case here. The People’s case showed defendant had an altercation with Johnson in which he held a gun to his head. Johnson then gathered some friends, some of whom were armed, but approached defendant unarmed and with his hands in the air―after which defendant gunned him down and then delivered a kill shot to his head while he lay on the ground wounded. This is not a self-defense scenario. Defendant had to testify to his fear of Johnson, and of his knowledge of BGF’s custom of retaliation, to attempt to show he feared imminent harm. (See, e.g., People v. Minifie (1996) 13 Cal.4th 1055, 1068.)
This case is readily distinguishable from Brooks v. Tennessee (1972) 406 U.S. 605 (Brooks), on which defendant relies. In that case, a state rule of procedure required that a defendant testify as the first defense witness or not at all. (Id. at p. 606.) The United States Supreme Court held the rule unduly burdened the Sixth Amendment privilege and a defendant’s right to counsel. (Brooks, supra, at pp. 611−613.) No such burden is present on the facts of this case. The trial court did not condition the admission of Vasquez’s testimony on defendant testifying.
Defendant also claims the trial court effectively conditioned the giving of instructions on perfect and imperfect self-defense on defendant testifying. But defendant does not articulate an argument to support this assertion in his opening brief. In any case, under the circumstances of this case, defendant’s testimony was necessary to provide the evidentiary support for those instructions.
Character Evidence
Defendant contends the trial court improperly admitted evidence of his character for violence, i.e. the assault on a woman with a baseball bat and the assault on a fellow jail inmate. Defendant is incorrect.
A defendant, particularly one claiming self-defense, can introduce evidence of the character of the victim to prove conduct of the victim in conformity with that character. (§ 1103, subd. (a)(1).) But if a defendant introduces evidence of the victim’s character for violence, the prosecution may introduce evidence of the defendant’s character for violence. (§ 1103, subd. (b).)
After defendant testified that Johnson was “belligerent, hostile, and angry” during the initial Hayes Street confrontation and that Johnson was a member of BGF, the prosecution sought to introduce the above-referenced evidence of defendant’s violent character. The trial court agreed because of defendant’s testimony that Johnson was “belligerent, hostile, and angry” during the Hayes Street altercation before the shooting incident.
Defendant contends this testimony was not character evidence. We are inclined to disagree. Such adjectives describe a character for violence. That, in turn, ties directly to defendant’s alleged fear later in the day when he was told people were looking for him. While the character evidence is set fairly close in time to the shooting incident, we know of no reason why that should make it inadmissible under these facts. (Cf. People v. Myers (2007) 148 Cal.App.4th 546, 552−553 [evidence of victim’s violent conduct at the time of the charged offense, as opposed to an earlier time, inadmissible under § 1103, subd. (b)].)
Furthermore, defendant’s testimony that Johnson was a BGF member was also evidence of a character for violence in the context of other testimony. The jury knew BGF was a violent gang whose members enforce their will with violent means. The jury knew of the “blood oath, ” by which any prospective member must shed someone’s blood―surely a violent act―to be admitted to BGF. The jury knew of the other oath testified to by Pringle.
Any error in admitting the evidence of defendant’s character would be harmless. From the testimony of McDaniels, the jury knew defendant violently attacked Johnson during the Hayes Street incident earlier in the day. Defendant’s own testimony showed he advanced into gunfire to shoot Johnson, suggesting a character trait for violence. And defendant admitted he “don’t take no shit.”
Alleged Instructional Error
Defendant contends the trial court erred by giving instructions on self-defense by an aggressor (CALJIC No. 5.54) and contrived self-defense (CALJIC No. 5.55). He argues the jury would have been confused regarding his defense of self-defense by thinking defendant was the aggressor because of the Hayes Street altercation hours before the shooting. But we conclude any error would be harmless. These instructions are standard in self-defense cases, and the trial court instructed the jury that whether some instructions would apply “will depend upon what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist. Do not conclude that because an instruction has... been given, I am expressing an opinion as to the facts.” Jurors are assumed to have followed all of the instructions.
All CALJIC references are to the Judicial Council of California Criminal Jury Instructions (Spring 2011 ed.).
Defendant also contends that certain language in CALJIC No. 5.17 confused the jury. That instruction deals with imperfect self-defense, i.e., when a defendant kills with an actual but unreasonable belief that he must defend himself from imminent peril. This is a mistake of fact. But a mistake of law does not qualify a defendant for the defense of imperfect self-defense, as pointed out by our Supreme Court. (In re Christian S. (1994) 7 Cal.4th 768, 779, fn. 3.) Thus, CALJIC No. 5.17 informs the jury that the defense of imperfect self-defense “is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary’s use of force, attack or pursuit.”
Defendant claims the jury would think that because he was the aggressor in the earlier Hayes Street altercation, the jury might conclude that Johnson was legally justified in attacking defendant and defendant would not qualify for the defense of imperfect self-defense. But the language would only apply if the facts showed that Johnson had a reasonable belief that defendant was about to use deadly force upon him and, because of that belief, attacked defendant. The Hayes Street altercation was too far removed from the time of the shooting to have a realistic impact on Johnson’s belief as to what was transpiring at that time. The jury found that Johnson did not attack defendant. The jury was clearly instructed on the basic principles of self-defense and heard, and believed, evidence that defendant gunned down an unarmed man. We see no error.
III. DISPOSITION
The judgment of conviction is affirmed.
We concur: Margulies, J., Dondero, J.