Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F11439
HULL, Acting P. J.Defendant Armand Marcello Powers was charged with murder, but a jury found him guilty of voluntary manslaughter with the use of a deadly weapon. The court sentenced him to prison for seven years.
Defendant appeals contending the trial court (1) abused its discretion when it refused to delete certain portions of his videotaped statement made to the police and shown to the jury, and (2) prejudicially erred by instructing the jurors on mutual combat. As to the first assignment of error, we need not decide whether the court abused its discretion when it admitted the evidence because even if it did, the error was harmless. As to the second assignment of error, it does not appear from the record that defendant and his victim engaged in mutual combat as defined by CALCRIM No. 3471. Nonetheless, if there was error in giving the instruction, it, too, was harmless. We affirm the judgment.
Facts and Proceedings
Defendant lived with his mother. The victim, Julian Maisonett, lived around the corner from them. Maisonett had been friends with defendant and his mother for over 10 years and defendant sometimes worked for Maisonett in the latter’s yard business.
During the morning of August 16, 2007, defendant worked with Maisonett and returned home at noon. At approximately 3:00 p.m., J.S. and Maisonett were sitting on the latter’s porch drinking alcohol and smoking pot when defendant approached. According to J.S., defendant and Maisonett argued over money that defendant claimed Maisonett owed him. J.S., who had brought his young son with him, left after a few minutes because he did not want the child hearing the argument.
Later that afternoon, Maisonett drove his truck to defendant’s residence, honked the horn and defendant went outside. A.S., who was visiting with her neighbor D.L., heard defendant and Maisonett arguing outside of the truck. A.S. saw defendant grab Maisonett by the front of his shirt, push him into the truck’s cab and slam the door. Because A.S. was “a little bit far away” she could not see whether defendant had anything in his hands or if defendant put his hands inside the truck.
D.L. also heard defendant and Maisonett arguing. According to D.L., she saw defendant standing outside the truck and Maisonett sitting inside. The truck’s door was open and defendant was “hitting at something inside the door” with his right hand, swinging “[s]everal” times. Maisonett drove off and defendant stood there momentarily, and then went inside his house.
According to defendant’s mother, when defendant came back into the house he told her that Maisonett had tried to stab him and “had cut [defendant’s] hand.” Defendant’s mother denied telling a police officer that defendant told her “[Maisonett] got stuck.”
Maisonett’s neighbor, M.C., saw Maisonett arrive home and remain in his truck for about 45 minutes. He had his head back and appeared to be taking a nap. At one point, M.C. looked out the window and saw Maisonett lying on the ground at the back of his truck.
Police officers and medical personnel arrived at approximately 6:30 p.m. Maisonett was unresponsive and was transported to a hospital where he died several days later. The cause of death was brain damage due to a stab wound penetrating about an inch and a quarter from his skin into his heart.
The police learned of the argument between Maisonett and defendant and went to defendant’s home that evening. Defendant was lying on a couch and several kitchen-type knives were on the floor. On top of the television was a steak knife with blood on it. Defendant admitted arguing with Maisonett over $160 he claimed Maisonett owed him for landscaping work.
Defendant also admitted getting into a fight with Maisonett when the latter drove to defendant’s home. Defendant claimed that while Maisonett was in the truck he pulled a knife and tried to stab defendant. Defendant grabbed the knife blade, the two struggled over the knife, and defendant got it away from Maisonett. Defendant, who had some small cuts to the webbing and middle finger on his left hand, stated that if Maisonett was cut, he must have cut himself during the struggle.
Defendant told the officers he was unsure of what happened to the knife, and more than once denied that the knife on the television was the knife he had taken from Maisonett. Instead, defendant claimed that knife belonged to his mother. Defendant later admitted it was possible that the knife on the television was the knife he had taken from Maisonett and that it probably had Maisonett’s fingerprints on it. DNA testing established that it was Maisonett’s blood on the blade and defendant’s blood on the handle. A latent print was lifted from the knife’s blade near the handle, but there was insufficient detail to make a comparison.
That same night, defendant was interviewed at the police station. A videotape of the interview was played for the jury and a transcript was provided to them.
During the interview, which occurred over a four-hour period at the police station, defendant essentially confirmed what he had already told the officers. Namely, that he and Maisonett had argued over money that Maisonett owed him; that Maisonett had attempted to stab him; that he had grabbed the knife by the blade and they struggled, which caused his hand to be cut; that he had gotten the knife from Maisonett, but was initially confused about what he did with it; that the knife on the television was the knife in question; and that if Maisonett had been cut, Maisonett must have cut himself during the struggle.
Discussion
I
The Motion to Exclude Portions of the Police Interview
Defendant contends the trial court abused its discretion and violated his right to due process when it denied his motion, made pursuant to Evidence Code sections 352 and 1101, to exclude portions of the transcript of his interview with the officers where he is seen venting his frustration and anger with the officers by cursing and railing at them because of the length of time they had detained him. He also contends that his counsel was constitutionally ineffective for having failed to move to delete similar passages throughout the transcript.
We note that defendant’s motion was oral and referred only to the transcript of the interview. Nevertheless, we presume the parties understood the motion to include corresponding scenes from the videotape, as it would make no sense to exclude one and not the other. Consequently, references to either the videotape or the transcript are meant to include both.
The People argue that defendant has forfeited his due process and Evidence Code section 1101 arguments by having failed to raise them in the trial court, and that his counsel was not ineffective for having failed to move to exclude additional portions of the interview. We reject the People’s forfeiture claim, but we need not decide whether the trial court erred in admitting the evidence because, even if it did, the error was not prejudicial.
Prior to trial, defendant moved to delete portions of pages 107 to 113 of the transcript of the videotape wherein defendant shows anger and frustration with the police for his lengthy detention. Typical of the passages defendant found objectionable are the following where he has been left alone in the interview room and says, “What the fuck are you doing, man? Fuck. How many detectives does it take to fucking screw in a light bulb? No phone call. No nothing. You guys are violating my fucking rights. Period.”
Counsel argued that while defendant’s displays of anger at the victim were “fair game, ” portions showing his anger and vulgarity at the police for detaining him for over three hours after he had cooperated with them were “unduly prejudicial, ” “minimally probative, ” and “put him in a bad light.”
The People responded that evidence was admissible for three reasons. First, since the videotape showed defendant invoking his right to an attorney, the jury was entitled to know why the detective re-advised him of his Miranda rights before continuing the interview. Second, defendant’s lack of cooperation with the detectives was inconsistent with his claim of self-defense. And third, his anger at the detectives was circumstantial evidence of how he was acting “just a few hours before that” when he confronted Maisonett.
The court rejected outright the People’s “lack of cooperation argument, ” noting defendant had no obligation to cooperate with the police. The court did not directly address defendant’s arguments, but simply stated the evidence was admissible because its “probative value substantially outweighs the prejudice of the client.”
A. Defendant Did Not Forfeit His Due Process Argument
“If the trial objection fairly informs the court of the analysis it is asked to undertake, no purpose is served by formalistically requiring the party also to state every possible legal consequence of error merely to preserve a claim on appeal that error in overruling the objection had that legal consequence.” (People v. Partida (2005) 37 Cal.4th 428, 437.) More specifically, where a defendant objects in the trial court that the evidence was more prejudicial than probative under Evidence Code section 352, and argues that ground on appeal, he may also argue “that this error had the legal consequence of violating his due process rights.” (Id. at p. 439; see also id. at pp. 438-439.) Here defendant argued the evidence was inadmissible pursuant to Evidence Code section 352; consequently, defendant’s due process argument is not forfeited.
B. Defendant Did Not Forfeit His Section 1101 Argument
In People v. Carpenter (1999) 21 Cal.4th 1016, the defendant invoked an Evidence Code section 352 argument at trial, arguing that the evidence “merely showed he was a ‘criminal’ and a ‘bad person, ’” but did not expressly refer to Evidence Code section 1101. (Id. at p. 1053.) The court responded that the “specific nature of the objection was sufficiently clear to preserve the issue.” (Ibid.) Here, defendant’s argument that his “unsavory, offensive language... puts him in a bad light” is sufficiently similar to the argument advanced in Carpenter that the issue is preserved for appeal.
C. The Error, If Any, was Harmless
Defendant argues that his vulgar outbursts directed to the police for unduly prolonging his detention should have been excluded because they simply displayed obnoxious behavior and were not relevant or had minimal relevance to any issue in the case. The People counter that “the evidence showed [defendant’s] demeanor in the hours after the stabbing and explained why [defendant] was later re-advised of his Miranda rights. In particular, [defendant’s] demeanor, and the level of his anger, served to undermine his claim that any stabbing of the victim was the result of a mere accident which occurred as [defendant] attempted to disarm the victim.” Under the circumstances, we are not required to decide who has the better argument, because, if error occurred, “[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. [Citations.]” (People v. Partida, supra, 37 Cal.4th at p. 439.) On appeal, the defendant bears the burden of showing error and resulting prejudice. (People v. Coley (1997) 52 Cal.App.4th 964, 972.)
Here, the unchallenged and properly admitted portions of the videotape were replete (we count at least 27 such outbursts) with instances of defendant’s display of anger and vulgarity when he was describing his feelings about Maisonett, how the fight occurred, and how he defended himself. Thus, had the challenged portions of the videotape been deleted, defendant’s image would have fared no better. Consequently, the error was harmless under any standard.
D. Ineffective Assistance of Counsel
Defendant contends that his counsel was constitutionally ineffective for failing to request that additional vulgar, but irrelevant, portions of the videotape be deleted. Such portions include, for example, instances where defendant is “making silly noises with his mouth, ” “utters an irritated ‘fuck’ and then pops his jaw numerous times and groans.” He also is shown yelling at the officers through the wall of the room: “You guys can’t keep me in here forever. Mother fuckers. After nineteen hours, I’m suing the mother fuckers.... God damn rookies, man. Fuck. Hello? Can I get justice or else can I fucking go to sleep already, man? Fuck. [Whistles.] Hello? Guess I have no right as an American, huh? Just I got to sit here and suffer, huh, in this stinking ass room? I’m suing you guys. Fuck you guys. [Pounds table.] What the fuck. Am I the only person in this bitch? What the fuck? Take... God damn man. You guys really suck. [Displays middle finger to camera.] [Pounds table.] I’m going to bash my whole head in if you guys don’t let me out.... What am I in Mexico? [Pounding music on wall and table.] [Pounds table.] Not good. You guys going to let me out of here pretty soon or what? I got to sit here all day?”
Defendant argues that “[n]one of this behavior is relevant to the issues in the case, ” but instead “portrays [him] as foolish, impatient and obnoxious, ” and therefore counsel should have moved to exclude additional portions of the interview. He does not establish ineffective assistance of counsel.
To establish ineffective assistance of counsel, the defendant must show not only that his counsel’s representation fell below an objective standard of reasonableness, but also show that in the absence of the defect there is a reasonable probability that a result more beneficial to the defendant would have occurred. (People v. Lewis (1990) 50 Cal.3d 262, 288.) “‘If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.’” (In re Alvernaz (1992) 2 Cal.4th 924, 945.)
Defendant’s contention fails for the same reasons he was unable to establish prejudice in his previous argument. Namely, that even with the additional deletions from the videotape suggested by appellate counsel the jury would still have before it multiple instances of the same crude language and angry conduct by defendant, which was properly admitted. Since defendant’s image would have been the same with or without the deleted portions, the outcome of the trial would have remained unaffected by the error. Hence, defendant has failed to demonstrate constitutionally ineffective assistance of counsel.
II
Mutual Combat
Defendant contends the trial court prejudicially erred when it instructed the jury per CALCRIM No. 3471 mutual combat because there was not substantial evidence to support such instruction. He also contends the definition of mutual combat provided by the instruction was prejudicially misleading. The People respond that defendant’s failure to object to the instruction forfeits the issue for appeal; that there was substantial evidence to support the instruction; and that even if the instruction’s definition of mutual combat did not comply with that set forth in People v. Ross (2007) 155 Cal.App.4th 1033, upon which defendant relies, the error was harmless.
We agree with defendant that the court erred in giving the instruction, but reject his claim that the definition of mutual combat could have misled the jury not to consider his self-defense claim. We also reject the People’s forfeiture argument and their position that substantial evidence supported the giving of the instruction. Finally, we conclude the instructional error was harmless.
A. Forfeiture
Citing People v. Guerra (2006) 37 Cal.4th 1067, and People v. Farnam (2002) 28 Cal.4th 107, the People contend that defendant’s failure to object to the trial court’s giving of CALCRIM No. 3471 has been forfeited.
Defendant responds that because the instruction adversely affected his substantial rights, namely, his Sixth Amendment right to have his defense of self-defense considered, the instruction is not forfeited. (See People v. Noble (2002) 100 Cal.App.4th 184, 189 [error affecting defendant’s substantial rights not forfeited by failure to object to the instruction].) Even if forfeited for failure to object, defendant obtains review of the instruction pursuant to his argument that such a failure to object constituted ineffective assistance of counsel. Consequently, we shall review defendant’s contention.
B. Harmless Error
The trial court instructed the jury on self-defense, pursuant to CALCRIM No. 505, and the parties voice no complaint with that instruction. The court also instructed the jury on mutual combat, pursuant to CALCRIM No. 3471, with which defendant takes issue. CALCRIM No. 3471 provides: “A person who engages in mutual combat or who is the initial aggressor has a right to self-defense only if: [¶] 1. He actually and in good faith tries to stop fighting; [¶] 2. He indicates, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wants to stop fighting and that he has stopped fighting. [¶] AND [¶] 3. He gives his opponent a chance to stop fighting. [¶] If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight. [¶] A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense.” (Italics in original.)
Here, there was no evidence whatsoever of a preexisting agreement between defendant and Maisonett to fight. Nor was there any evidence, implied or otherwise, of such an agreement being reached during the fight. The only evidence was that either defendant or Maisonett started the fight and the other reacted in self-defense. Because there was no evidence supporting a mutual combat theory, it was error for the court to instruct on it. (People v. Guiton (1993) 4 Cal.4th 1116, 1129 [“It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case”].)
However, the error is harmless: “If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground.” (People v. Guiton, supra, 4 Cal.4th at p. 1129.) Since there was no evidence of a mutual combat, the jury would have no factual basis for applying the mutual combat instruction and thus would not have applied it. Having not applied the instruction, the jury could not have been misled by it. There remained, however, a legally correct theory which was factually supported by the evidence, to wit, that defendant committed voluntary manslaughter, which was the verdict rendered by the jury. Consequently, the error was harmless.
Defendant also complains that the instruction on mutual combat “while not technically incorrect, is misleading and confusing” and may have prevented the jury from reaching his claim of self-defense. He argues as follows: “The instruction states: ‘A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose.’ The language that combat becomes ‘mutual’ when ‘it continues by mutual consent’ suggests that the mere fact that a party continues to engage in a fight initiated by another makes the combat mutual. The added language that the consent may be [implied] exacerbates the problem. Jurors may believe the act of continuing to fight could constitute an implied consent to mutual combat. Thus, the instruction may be misconstrued to apply to the common understanding of mutual combat, which is much broader than the legal definition premised on dueling-type agreements.” (Italics are defendant’s.)
The argument fails for two reasons. First, as we previously pointed out, because there was no evidence of mutual combat the jury would not have applied the instruction and therefore would not have been misled by it.
Second, defendant’s reading of the instruction is not reasonable. “An instruction can only be found to be ambiguous or misleading if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words. (People v. Frye (1998) 18 Cal.4th 894, 957.)” (People v. Campos (2007) 156 Cal.App.4th 1228, 1237.)
Here, the instruction was given in the context of when a person is entitled to claim self-defense. The instruction states that a person may not claim self-defense if that person is engaged in “mutual combat.” The instruction defines “mutual combat” to be a fight where both parties have agreed, expressly or impliedly, either to commence a fight or, if they are already fighting, to continue to do so. The instruction cannot be reasonably read, as urged by defendant, to “suggest” the combat may become “mutual combat” simply because the person fights back and continues to do so. Rather, the instruction requires proof of an agreement to commence the fight or to continue it if already in progress. Continuing to fight in response to an attack is not such proof. Consequently, the jury would not have been misled even if they applied the instruction.
III
Penal Code Section 4019
The recent amendments to Penal Code section 4019 do not operate to modify defendant’s entitlement to additional presentence custody credit as he was committed for a serious felony. (Pen. Code, §§ 1192.7, subd. (c)(1), 4019, former subds. (b)(2) & (c)(2) [as amended by Stats. 2009, 3d Ex. Sess. 2009-2010, ch. 28, § 50], 2933, subd. (e)(3) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].)
Disposition
The judgment is affirmed.
We concur: BUTZ, J., CANTIL-SAKAUYE, J.