Opinion
F083675
05-08-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSE RANGEL, Defendant and Appellant.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. French and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F19904080 F. Brian Alvarez, Judge.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. French and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, P. J.
INTRODUCTION
Defendant Jose Rangel shot and killed Augustine Alvarado Trujillo on the side of a road as Trujillo's wife and son watched. A jury convicted defendant of second-degree murder and child abuse and found true the allegation that defendant personally discharged a firearm. The trial court sentenced defendant to a total term of 40 years to life in prison.
Defendant contends on appeal that (1) the evidence is insufficient to disprove that he killed in self-defense; (2) the prosecution violated his constitutional right to due process and state discovery rules by the late production of five reports that included ballistics and evidence that Trujillo possessed a knife at the time of his death; (3) the prosecutor committed misconduct in closing argument when she stated that defendant contrived his testimony in response to defendant's review of discovery and the testimony of witnesses in the courtroom; (4) the prosecutor committed misconduct in closing argument when she argued that defendant was poor and killed Trujillo because Trujillo did not share a taco with defendant, and that these comments were based upon cultural bias and violated the California Racial Justice Act of 2020 (RJA; Pen. Code, § 745);(5) the trial court's exclusion of Trujillo's blood-alcohol content during cross-examination of a forensic pathologist violated defendant's rights to due process and confrontation; (6) the trial court erred in permitting the prosecution to impeach defendant with the conduct underlying his Washington misdemeanor conviction for harassment because it is not a crime of moral turpitude and the probative value of the conviction was outweighed by its prejudicial effect; (7) the trial court erred when it denied defendant's motion to preclude reference to Trujillo as "the victim"; (8) the trial court was unaware of its discretion to strike the firearm enhancement necessitating that we remand for resentencing; and, in supplemental briefing, (9) the trial court erred in failing to sua sponte instruct the jury that defendant had the right to defend his property against harm (CALCRIM No. 5.06).
Undesignated statutory references are to the Penal Code.
We agree that defendant should be resentenced because the trial court was unaware of its discretion to substitute a lesser firearm enhancement but otherwise affirm the judgment.
PROCEDURAL BACKGROUND
The District Attorney of Fresno County filed an information on May 25, 2021, charging defendant with murder (§ 187, subd. (a); count 1), child abuse (§ 273a, subd. (a); count 2), criminal threats (§ 422; count 3), and assault with a firearm (§ 245, subd. (a)(2); count 4). The information also alleged defendant personally discharged a firearm (§ 12022.53, subd. (d)) as to count 1, used a firearm (§ 12022.5, subd. (a)) as to count 3, and possessed one prior "strike" conviction within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Defendant pleaded not guilty and denied the allegations.
Prior to trial, the trial court granted the prosecutor's motion to dismiss counts 3 and 4 and the prior strike conviction allegation (having discovered that the conviction was actually a misdemeanor). On October 20, 2021, after a 12-day trial, the jury acquitted defendant of premeditated murder but convicted him of second degree murder and child abuse and found true the firearm enhancement.
The trial court sentenced defendant on November 18, 2021, to 15 years to life in prison, plus a consecutive term of 25 years to life as to count 1 and a concurrent term of two years as to count 2. The court also ordered defendant to pay $ 7,500 to the California Victim Compensation Board as victim restitution (§ 1202.4, subd. (f)), a $300 restitution fine (§ 1202.4, subd. (b)), a $300 suspended parole revocation restitution fine (§ 1202.45), $60 in criminal conviction assessments (Gov. Code, § 70373), and $80 in court operations assessments (§ 1465.8).
Defendant timely appealed on December 15, 2021.
FACTS
I. Prosecution evidence.
A. Juan Guzman
At approximately 12:50 a.m. on June 17, 2019, Fresno County Deputy Sheriff Juan Guzman responded to a shooting in Three Rocks. Dispatch had notified him that a man had been shot in the chest. The scene of the shooting was a large dirt lot located between two mobile home residences, one of which belonged to Trujillo's father. Guzman noted that it was very dark, Trujillo's truck was still running, and the headlights were still on. Trujillo had three gunshot wounds to his chest and one to his neck. Guzman assisted Trujillo's wife, N.A., in administering CPR. However, Trujillo was pronounced dead at 1:07 a.m. by the emergency technicians who had arrived. Guzman did not see any weapons around Trujillo's body.
B. G.A.
G.A., the 16-year-old son of Trujillo, testified that on the day Trujillo died, G.A. accompanied Trujillo, N.A. (G.A.'s mother), and G.A.'s sister to G.A.'s grandfather's property in Three Rocks. Mario C., G.A.'s uncle, also lived there. Approximately 15 to 20 family members were also present on the property to celebrate Father's Day (June 16, 2019), including Trujillo's brothers and sisters and their children. Trujillo drove with G.A. to the property in Trujillo's truck and hauling a horse trailer while N.A. drove a second vehicle to transport G.A.'s sister who was in a wheelchair.
Trujillo assisted other family members to ride the horse during the gathering. G.A. spent a lot of time playing soccer with his cousins, ate for an hour or two, and talked. G.A. did not remember whether any of the adults were drinking alcohol that day, although they did at other times. No one shot a firearm during the party or engaged in target practice.
G.A. thought that they left his grandfather's house at 2:00 a.m. or 3:00 a.m. Just after leaving in separate cars, N.A. called Trujillo and G.A. heard Trujillo tell N.A. that he did not want to drive and, because G.A. did not have a license, Trujillo intended to drive back to the grandfather's property, leave the horse and trailer, and drive with N.A. and G.A.'s sister. Trujillo pulled to the side of the road, and G.A. saw a car on their left. G.A. saw a man approach Trujillo's truck door. Trujillo lowered the window and greeted the man from inside the truck. G.A. had never seen the man before, and Trujillo did not appear to know the man either.
G.A. did not hear much of the conversation because of road noises from a nearby highway and the truck's air conditioning. However, it did not appear to G.A. that the conversation was tense. Trujillo and the man discussed that the man had problems with Mario, G.A.'s uncle. Trujillo told the man that he did not want problems with anyone in the family. Neither individual seemed angry, and the conversation did not appear heated. Approximately three to five minutes later, Trujillo got out of the truck and the man took a step back because "he probably thought [Trujillo] was going to do something to him, but [Trujillo] just wanted to talk, that's it." Trujillo did not turn off the truck or the headlights.
G.A. described the conversation as normal in tone until the man got mad and reacted. Trujillo did not behave aggressively. After refreshing his memory from a detective's report, G.A. explained that Trujillo told the man that he did not want any problems with anyone, and the man responded that he did not want to have problems with Mario. Trujillo replied that he wanted to clear things up a bit so that there would be no problems after he left. After approximately one or two minutes, the man told Trujillo, "I do not want to shoot you, but if I have to I will." The man pulled out a weapon that he possessed, shot Trujillo, and ran away. The man did not display the firearm until just before he fired it at Trujillo.
G.A. never saw Trujillo with any kind of weapon that evening and did not know whether Trujillo owned a gun, but later, G.A. admitted he had seen Trujillo with firearms at other times. However, G.A. did not know that Trujillo possessed a firearm or ammunition in the truck. He never saw either Trujillo or the man hit or touch each other while conversing. The man did not go back to his own truck to retrieve anything before firing the weapon.
G.A. testified that N.A. had stopped her vehicle near the truck and, after the shooting, she ran to Trujillo and instructed G.A. to drive her vehicle and his sister back to his grandfather's property.
C. N.A.
Trujillo's wife, N.A., testified that the family had gathered on June 16, 2019, to celebrate Father's Day at her father-in-law's property. N.A.'s sister-in-law also lived there with her husband, Mario, and their children. N.A. testified that Trujillo and G.A. drove there in a truck with the horse trailer so that family members could ride their horse. The children played while the adults grilled, cooked, and conversed. Trujillo and Mario drank beer. Rodrigo R., N.A.'s cousin, also arrived at the party to eat. Rodrigo spoke with Trujillo and Mario.
While Trujillo and Mario had previously shot firearms during a New Year's celebration, they did not shoot guns that day. N.A. did not see anyone with firearms that day, although Trujillo did own a .38-caliber handgun, a .22-caliber rifle, and another rifle for hunting. The handgun and the hunting rifle were stored inside a locked nightstand in their closet.
N.A. testified that Trujillo decided to leave the property just before midnight and loaded the horse into the trailer. Trujillo carried their daughter to N.A.'s car and loaded her wheelchair into the trunk. N.A. suggested that Trujillo should not drive because he had been drinking earlier. Trujillo was not drunk and did not usually drive after drinking, but he did not want to leave his truck and the horse at the property. Trujillo drove the truck with G.A. while N.A. drove her daughter in the car. While driving away, N.A. called Trujillo and suggested again that he leave the truck and trailer at Trujillo's father's residence because Trujillo had been drinking and she was concerned that he would be stopped by law enforcement. Trujillo pulled over to turn the truck around near a gate, and N.A. stopped her car approximately 50 feet behind him.
N.A. saw a man she had never seen before approach Trujillo's truck near the area of the gate from behind a tree. The man's vehicle was parked nearby. The man approached Trujillo until he was five feet from the truck door. Trujillo's window was down, and N.A. could see his hand. N.A. was still on the phone with Trujillo, and she heard Trujillo greet the man by wishing him a good night. N.A. saw Trujillo get out of the truck and reach out as if to shake hands with the man. N.A. noticed that the man stepped back as if he thought Trujillo might hurt him and appeared to be under the influence of drugs. Trujillo appeared friendly and happy, did not raise his voice, and was not aggressive. When the man stepped back, he took out a gun and fired at Trujillo several times. Just before firing, the man loudly stated that no one was going to get him into trouble. The man never left the conversation or went to his vehicle before firing the gun. The man then ran away.
After the shooting, N.A. directed her son to drive her daughter back to her fatherin-law's residence and called her sister-in-law for help. N.A. ran to help Trujillo who had fallen to the ground and was leaning against the truck. She called 911 and received instruction on administering CPR to Trujillo. A deputy arrived and took over administering CPR.
Trujillo did not behave aggressively toward the man, nor did Trujillo ever hit the man or physically contact him in any way. Trujillo did not have a weapon.
D. Mario C.
Trujillo's brother, Mario, knew defendant because he had worked with him approximately 12 years earlier. Defendant stayed at the cow corral and would pass by Mario's house on occasion. On Father's Day, the family was gathered and N.A.'s cousin, Rodrigo, dropped by and spoke with Mario and Trujillo. Rodrigo said that defendant "had something against [Mario]," and advised Mario to be careful because defendant was armed. Mario said that he would speak with defendant on a later day.
Approximately five minutes after Trujillo and his family left that evening, Mario heard five or six gunshots. G.A. ran to the house, and Mario ran to where Trujillo was on the ground.
E. Robert Mehling
Fresno County Deputy Sheriff Robert Mehling responded to the shooting. The shooting had occurred adjacent to an area containing livestock pens. Mehling learned defendant's identity from the vehicle registration in a truck parked there. He was also present when defendant was found hiding in a tree the next day.
F. Gary Haslam
Gary Haslam, a detective with the Fresno County Sheriff's Office, assisted with processing the scene for evidence. While observing Trujillo's body, he noticed stippling on the wounds that indicated Trujillo was shot from close proximity. Haslam saw shell casings near Trujillo's body, bullet strikes in the driver's side door of Trujillo's truck, and a cowboy hat on the ground with a bullet hole in it. A bullet penetrated the truck door.
He observed two of the bullets and three shell casings near the body, and he seized one nine-millimeter and one .38-caliber shell casing from the area between the hood and windshield. Shell casings might have ended up in this area if someone shot near the vehicle and could have remained there for some time. All of the shell casings found were nine-millimeter casings, either RP or Tuala brand, except for the one .38-caliber casing found near the windshield, which was fired from a different gun.
Haslam saw tissues with blood in a trash can and a .22-caliber rifle casing in the dirt but not near the body. Inside Trujillo's truck, Haslam observed two boxes of nine-millimeter ammunition on the front passenger-side floor and empty firearm magazines in the glovebox and on the dashboard. While he did not find a firearm or knife inside the truck, he did find a .22-caliber long rifle in a locked toolbox in the truck bed. A search of defendant's truck did not result in finding any firearms or ammunition.
Haslam testified that he saw a knife sheath on Trujillo's belt but did not see any firearms or knives outside the truck. Haslam was recalled to the stand and asked again about whether Trujillo had a knife. He testified that Trujillo's knife sheath contained a folded buck knife with a blade approximately four to five inches long. Haslam had observed the knife sheath at the scene but did not know Trujillo had a knife in the sheath until it was discovered upon removal of Trujillo's clothing and possessions during the autopsy. Haslam included this information in a separate report and initially testified incorrectly when he said that they had not found a knife.
G. Kristal Buckley
Kristal Buckley, a crime scene specialist employed with the Fresno County Sheriff's Office, responded to the scene of Trujillo's death and participated in collecting evidence and photographing the scene. While participating in a visual observation of Trujillo at the scene, Buckley observed that Trujillo had a knife sheath attached to his belt in the back and that the sheath was closed. During the later autopsy, Buckley located the knife inside the sheath and photographed it.
H. Victor Avila
Victor Avila lived in Three Rocks, and around 6:15 a.m., he was entering his truck when he heard someone call out to him. Avila was aware that there had been a killing in the area. Avila identified the man as defendant and testified that defendant identified himself as either Jose or John. Avila had seen defendant a few times before as he drove by but did not know him. Defendant carried something in his hand with a shirt wrapped around it. Avila asked him to leave, and defendant left.
I. Jonas Motter
Jonas Motter was an officer assigned to a local fugitive task force and participated in the search for defendant following the shooting. His task force commenced surveillance at approximately 11:00 a.m. on June 18, 2019. That afternoon, he interviewed a juvenile who had contacted the Fresno County Sheriff's Office to report that the juvenile's father (most likely referring to Victor Avila) had encountered defendant. At approximately 7:00 p.m., members of the task force began searching a nearby orchard. While driving through an orchard, Motter saw defendant at the top of an almond tree. When taking defendant into custody, a task force officer asked defendant, "Where's the gun?" Defendant motioned toward his waistline, and an officer removed it. The firearm had one bullet in the chamber and several in the magazine.
J. Venu Gopal
Venu Gopal was employed as the chief forensic pathologist at the Fresno County Coroner's Office. He conducted an autopsy of Trujillo and concluded that Trujillo died due to perforation of the heart, aorta, right lung, liver, and left kidney from multiple gunshot wounds. Gopal identified four gunshot wounds in total: one located on the right side of Trujillo's neck; another on the left side of his chest; and two on the right-front side of his chest. Three of the wounds showed stippling, that is burn marks from partially burned and unburned gun powder. Based upon this stippling, Gopal concluded that the muzzle of the gun was more than one-half inch from the wound but less than three feet. Any one of the gunshot wounds could have killed Trujillo because they caused overlapping injuries in major organs.
Gopal could not testify as to the order in which the gunshot wounds were caused but could identify certain characteristics of the wounds that would indicate the direction of travel. The gunshot wound to Trujillo's neck indicated that the bullet traveled from the "elbow downwards," and stippling indicated the bullet traveled somewhat horizontally; therefore, Gopal concluded that Trujillo's neck was bent slightly to the right and the bullet traveled downwards. This most likely indicated that Trujillo was bent over or falling down and the gun was at an acute angle when fired.
II. Defense evidence.
Defendant testified that he lived at the ranch and had been feeding the animals in the corral for two years. Sometime that evening, he woke up in order to move his truck off the road and into the corral. He saw a truck turning toward him. He approached Trujillo whom he recognized from having worked together approximately 12 years earlier. Trujillo arrived and told defendant that defendant had been "saying some things to Mario" and Trujillo had come to "clear that up." Trujillo said that he had come to fix "that" and was there on behalf of his family. Defendant replied that he had not said anything and told Trujillo to just leave because Trujillo was drunk. Defendant was going to "go back in," but Trujillo got out of his truck instead of leaving.
Trujillo said that defendant could not kick him out because the property belonged to "[L]a [H]uera." The woman rented the property to another man who let defendant live there in exchange for keeping an eye on the property. Trujillo approached defendant and punched him in the nose just once, not very hard, but hard enough to cause his nose to bleed. Defendant testified, "I became angry and I went for the weapon and I got a paper to put to my nose." Defendant threw the two or three tissues he used to clean his nose in the trash. He then grabbed "a nine that I had" and "went back and got close to the truck, and um, I showed [Trujillo] the firearm. I didn't pull it out, but I just showed it to him." Trujillo then said," 'I have come here to kill you'" and" 'I can also handle these kind of situations,' and that's when [Trujillo] went towards the steering wheel of his truck."
Defendant testified that he retrieved the gun because Trujillo had punched defendant and Trujillo intended to kill defendant. Defendant told Trujillo," 'You're not gonna come telling me how things are gonna be and I don't want to, but if I have to, I will shoot.'" Trujillo then turned toward his vehicle like he intended to grab something, and defendant thought that Trujillo was reaching for a weapon. Trujillo reached into his truck window, and defendant shot Trujillo "[b]ecause I was afraid of him shooting at me" and "[t]hat he would grab the firearm and shoot me." Trujillo was in the process of turning toward defendant when defendant shot him in the chest.
Defendant ran away after shooting Trujillo because he was afraid Trujillo's family would fight him when they saw what happened.
Defendant testified that before talking with Trujillo, defendant heard gunshots at Trujillo's house (referring to Trujillo's father's house located down the dirt road from defendant) and knew that Trujillo had firearms. Defendant testified that Trujillo came to defendant's home (referring to the corral where he slept), and defendant told Trujillo to leave his home.
Defendant agreed that Trujillo's father had a party and that animals were killed on the property where defendant lived for the party. When asked if defendant helped somebody kill a cow for the party, defendant responded, "We didn't kill a cow." When the prosecutor asked whether defendant had told the police that he helped the neighbor kill the cow, defendant testified that he did not know where the people came from who went to kill the cow. Upon additional questioning, defendant testified, "I killed it," "[t]he cow, yes." Defendant denied that his neighbor was the individual for whom the cow was killed. When asked if defendant told the police that he was angry that the neighbor did not invite him over, defendant testified that the cow was killed by the stepson of the man for whom he watched the property. The prosecutor asked, "Regardless of who killed the cow, were you angry that they didn't invite you over to eat at the party?" Defendant responded, "No, not the party, but they were barbecuing the meat there on the property where I was living." The prosecutor asked, "Were you mad that no one offered you food?" Defendant responded, "Well, I was there, and they didn't even give me a taco," but denied that he was mad. On redirect examination, defendant testified that the individuals involved with killing the cow had nothing to do with Trujillo or Trujillo's people. Defendant's interaction with Trujillo had nothing to do with being upset that defendant did not get a taco.
The prosecutor asked, "And then when you saw [Trujillo] come in his truck, did you think that he was bringing you something to drink?" Defendant replied, "Well, because we were friends-well, we weren't really friends-friends, but because I saw him come and I didn't have water, I-I was very thirsty." Defendant explained that he saw Trujillo leaving and approached him because defendant thought that Trujillo might have brought a soda, or that defendant could ask for a soda, but did not get to the point of asking because Trujillo started to treat defendant poorly.
Defendant testified that Rodrigo and another individual had earlier asked defendant for a ride, and defendant told Rodrigo that he did not "know what was going on with Mario because he went by there and, uh, he did a motion like that I should stop." The prosecutor asked if defendant was mad at Mario, and defendant said that he was not mad but told Rodrigo that defendant believed Mario had a problem with defendant. Defendant denied that he ever said he would hurt Mario.
Defendant admitted that when Trujillo stopped his truck, defendant told him to leave because Trujillo was too drunk. Defendant denied that he ever said, or told police that he said, Trujillo would have a bad ending. Defendant claimed that Trujillo punched him in the nose, causing his nose to bleed, and that he often had nosebleeds. Defendant testified that he walked over to his truck to grab his gun and wipe his nose after Trujillo had already threatened to kill him three times. Trujillo still stood by his truck and was talking on the phone when defendant returned from his truck. Defendant said he showed Trujillo his weapon and admitted that he was only a couple of feet away when he shot
Trujillo. At the time that defendant fired, Trujillo was crouched down low and reaching for something inside his truck. After the prosecutor questioned defendant's description of Trujillo's position and the locations of the bullet wounds in both sides of Trujillo's body, defendant stated that Trujillo had fully turned away from the vehicle by the time defendant fired at him. Defendant agreed that he never saw Trujillo with a weapon but admitted firing his weapon at Trujillo four or five times.
Defendant testified that he ran away because he was frightened of Trujillo's family. While defendant admitted that police had arrived and could have protected him from Trujillo's family, defendant hid under a trailer. Defendant said, "I stuck myself there and I stuck myself in a trailer there. And I wasn't able to get out ... of there until it was dawn." Defendant explained that he did not contact any police after leaving the trailer and hid in a tree because he thought the police cars belonged to Trujillo's people.
Defendant testified Trujillo was still in his truck when they started speaking and that Trujillo got out of the truck a few minutes later but left the truck door open. When defendant returned from retrieving his gun from his truck, Trujillo saw that defendant had a gun, and Trujillo closed his truck door while reaching inside the truck. Defendant also heard Trujillo on the phone asking someone to join him.
DISCUSSION
I. Sufficient evidence supports defendant's conviction for second degree murder and the jury's rejection of his claims of perfect and imperfect self-defense.
A. Applicable Law and Standard of Review
Defendant argues that the evidence was insufficient to prove that defendant did not kill in self-defense. In reviewing the sufficiency of evidence to support a conviction, we examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether it discloses substantial credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Brooks (2017) 3 Cal.5th 1, 57 (Brooks).) Resolving conflicts and inconsistencies in the testimony is the jury's "exclusive province." (People v. Young (2005) 34 Cal.4th 1149, 1181.) We do not redetermine the weight of the evidence or the credibility of witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60; see Young, at p. 1181 ["Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact."].) We must accept logical inferences that the trier of fact might have drawn from the evidence even if we would have concluded otherwise. (People v. Streeter (2012) 54 Cal.4th 205, 241, overruled on other grounds as stated in People v. Harris (2013) 57 Cal.4th 804, 834.) "If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (Albillar, at p. 60.) "Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (Young, at p. 1181.)
A defendant is not guilty of murder if the killing was justified by self-defense. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082 (Humphrey).) "For [a] killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend." (Ibid.) If the belief subjectively exists but is objectively unreasonable, then the doctrine of imperfect self-defense applies, and a killing that would otherwise be murder is reduced to voluntary manslaughter. (Ibid.) "[A]ny right of self-defense is limited to the use of such force as is reasonable under the circumstances." (People v. Pinholster (1992) 1 Cal.4th 865, 966, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.)
"' "[W]here the evidence is uncontroverted and establishes all of the elements for a finding of self-defense it may be held as a matter of law that the killing was justified; however, where some of the evidence tends to show a situation in which a killing may not be justified then the issue is a question of fact for the jury to determine." '" (People v. Nguyen (2015) 61 Cal.4th 1015, 1044.) 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.)
B. Analysis
We disagree with defendant's argument that the evidence was insufficient to prove that defendant did not act in self-defense or imperfect self-defense.
The court instructed the jury on principles of justifiable homicide in self-defense (CALCRIM No. 505). The court properly instructed the jury that the burden was on the prosecution to prove beyond a reasonable doubt the homicide was not justified (CALCRIM No. 505; § 189.5, subd. (a)). The court also instructed the jury on imperfect self-defense, including the prosecution's burden to prove beyond a reasonable doubt that the killing was not done in the actual, though unreasonable, belief in the need to defend against being killed or suffering great bodily injury (CALCRIM No. 571). Thus, by finding defendant guilty of Trujillo's murder, the jury necessarily concluded the prosecution had met its burden regarding self-defense and imperfect self-defense.
The record contains substantial evidence to support the jury's rejection of selfdefense and imperfect self-defense. G.A. and N.A. both testified that they did not hear Trujillo raise his voice or engage in any verbal altercation with defendant. They also testified that Trujillo did not display a weapon or assault defendant. According to G.A. and N.A., defendant initially appeared scared, and G.A. testified that defendant told Trujillo, "I do not want to shoot you, but if I have to I will." N.A. heard defendant loudly state that no one was going to get him into trouble. Defendant then pulled out a gun and shot Trujillo. G.A. and N.A.'s accounts of the shooting were not "physically impossible or inherently improbable." (People v. Young, supra, 34 Cal.4th at p. 1181.) Their accounts constitute sufficient evidence to support a finding beyond a reasonable doubt that defendant possessed a firearm-and fired it-at a point when Trujillo was merely standing near his truck, and that defendant thus had no reasonable basis to perceive an imminent threat of great injury. (See People v. Brady (2018) 22 Cal.App.5th 1008, 1018 [evidence of lack of aggression by assault victim enabled jury to find defendant did not reasonably perceive imminent threat].) Based on these facts, it was reasonable for the jury to conclude a reasonable person would not have perceived it necessary to fatally shoot Trujillo. (See People v. Clark, supra, 130 Cal.App.3d at p. 378 ["Issues arising out of self-defense, including whether the circumstances would cause a reasonable person to perceive the necessity of defense, whether the defendant actually acted out of defense of himself, and whether the force used was excessive, are normally questions of fact for the trier of fact to resolve."].)
Relying on isolated portions of the testimony of prosecution witnesses and his own testimony, defendant argues there was insufficient evidence to justify a rejection of his claim of self-defense. Defendant testified that Trujillo had punched him, threatened him, and then reached into his truck as if to pull out a gun and, therefore, defendant believed he was defending himself when he shot Trujillo. While we recognize that defendant's account of the events supports his claim of self-defense, we disagree with defendant's characterization of the circumstances of the shooting as "uncontroverted." The jury was presented with conflicting evidence as to whether defendant had been threatened and whether he believed that he needed to defend himself. (See People v. Davis (1965) 63 Cal.2d 648, 653 ["Only if the jurors were required to accept defendant's version ... would we be inclined to agree with defendant's contention of justification."].)
As indicated, however, there is substantial conflict in the evidence with respect to whether Trujillo threatened defendant or whether defendant could have reasonably believed that Trujillo was attempting to arm himself with a firearm when defendant shot Trujillo. G.A. and N.A. testified that defendant shot Trujillo without any provocation and that Trujillo had not posed any threat of bodily injury to defendant. The jury was entitled to disbelieve defendant's testimony, and we defer to the jury's evaluation of his credibility. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Zilbauer (1955) 44 Cal.2d 43, 48-49 [the jury was not required to accept the defendant's version of the homicide].)
Furthermore, even if the jury believed that Trujillo punched defendant, it could have concluded that defendant lied when he testified that he believed that Trujillo was reaching for a weapon. Neither G.A. or N.A. testified that Trujillo reached inside his truck during his encounter with defendant, and because no gun was found inside the passenger compartment Trujillo's truck, it would make no sense for Trujillo to reach inside for it. Even if Trujillo had punched defendant, defendant would not be justified in responding with deadly force. This is a case,"' "where some of the evidence tends to show a situation in which a killing may not be justified" '" and not self-defense as a matter of law and, therefore,"' "the issue is a question of fact for the jury to determine." '" (People v. Nguyen, supra, 61 Cal.4th at p. 1044.) Therefore, the jury could have rejected defendant's testimony that he believed he needed to shoot Trujillo to defend himself.
In sum, the jury could have reasonably concluded defendant (1) did not actually believe in the need to defend himself and (2) used force that greatly exceeded what was reasonable under the circumstances, negating both self-defense and imperfect self-defense. (See Humphrey, supra, 13 Cal.4th at pp. 1082-1083; People v. Pinholster, supra, 1 Cal.4th at p. 966.) 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. This evidence does not conclusively establish that a reasonable trier of fact could have only concluded that defendant shot Trujillo in self- defense. (See People v. Johnson (1980) 26 Cal.3d 557, 576.) We therefore conclude the jury's verdict is supported by substantial evidence.
II. Defendant has not demonstrated that he was prejudiced by the prosecution's late disclosure of ballistic reports and evidence that Trujillo carried a knife when killed.
A. Background
Detective Haslam testified that no firearms or knives had been recovered either inside or outside of Trujillo's truck, but he did observe a knife sheath on Trujillo's belt. However, Haslam prepared a report (provided to the defense during discovery) that documented he viewed the autopsy and saw that Trujillo had a knife in the knife sheath on his belt. After Haslam testified, and in view of the discrepancy between the report and Haslam's testimony, the prosecutor made additional inquiries and discovered five reports prepared by technicians that were not previously provided to the defense. The reports discovered included photographs of Trujillo's knife as viewed during the autopsy.
Haslam's initial report described that Trujillo had a "brown leather belt with a knife sheath and leather boots." Haslam's report of the autopsy described that Trujillo had a "folding buck knife contained in a black sheath [that] was attached to the brown leather belt" and the property was photographed. Both reports were timely provided to the defense prior to trial.
Defense counsel moved to dismiss the case or for a mistrial and argued that failure to disclose the existence of the knife, as well as the crime technician's reports and photographs, violated defendant's rights as it was critical evidence relating to defendant's claim of self-defense. The prosecutor pointed out that the fact that Trujillo had a knife had been disclosed in Haslam's report, and the report also included the fact that a crime scene technician had written a report and taken photographs. The prosecutor argued the new discovery involved only the report of the technician who catalogued and photographed Trujillo's possessions.
The new reports turned over to the defense also included the results of ballistic testing. The prosecutor confirmed that the reports described test firing of defendant's gun and confirmed that the bullets and some of the casings at the scene were fired from defendant's gun. The reports also concluded that two casings, found near the windshield on Trujillo's truck, were not fired by defendant's gun. The defense argued that pretrial access to the reports could have affected his strategy, but additional time was needed to review them.
The court denied defendant's motion to dismiss after it concluded that the prosecution had timely disclosed the existence of Trujillo's knife in prior discovery even though the photographs and another report of the autopsy had not been disclosed, the ballistic reports were not exculpatory, and the pertinent information had already been testified to by Haslam. The court agreed to consider other remedies for the late disclosure, such as a jury instruction regarding late discovery. Defense counsel only requested a brief continuance and indicated that an afternoon would be sufficient time. The prosecutor agreed to delay calling the witnesses involved in the delayed disclosure, and the trial court agreed to allow defense counsel time to review the new discovery after Gopal's testimony. The trial recessed at 2:40 p.m. and resumed the following morning at 9:05 a.m.
The trial court later clarified that it had denied defendant's motion pursuant to section 1054.5, subdivision (c). Section 1054.5, subdivision (b) permits the trial court to make any order necessary to ensure a defendant's receipt of discovery, including contempt proceedings, delaying or prohibiting a witness from testifying, or continuing the proceeding. Section 1054.5, subdivision (c) provides in pertinent part: "The court shall not dismiss a charge pursuant to [section 1054.5,] subdivision (b) unless required to do so by the Constitution of the United States."
The prosecutor then recalled Haslam who testified that he was mistaken when he testified previously that Trujillo did not have a knife in the sheath found on his belt. Haslam explained that he did not see the knife until later during the autopsy. Defense counsel cross-examined Haslam who again admitted that his earlier testimony regarding the knife was incorrect.
After the prosecutor questioned Crime Scene Specialist Buckley as to the discovery of Trujillo's knife during the autopsy, the trial court granted defense counsel's request for an instruction and instructed the jury with CALCRIM No. 306 as follows: "Both the People and the Defense must disclose their evidence to the other side before trial within the time limits set by law. Failure to follow this rule may deny the other side a chance to produce all relevant evidence to counter opposing evidence or to receive a fair trial. The attorney for the prosecution failed to disclose both reports pertaining to [photographic exhibits of Trujillo's knife] and the images themselves or the pictures [exhibit numbers].... You must consider the fact that an attorney failed to disclose evidence when you decide the charges against [defendant]. In evaluating the weight and significance of that evidence, you may consider the effect, if any of the late disclosure .." Defense counsel then cross-examined Buckley and elicited testimony that she saw at least two boxes of ammunition, three magazines, and a .22-caliber rifle in Trujillo's truck.
The trial court read CALCRIM No. 306 a second time during its instructions to the jury before to closing argument.
Defense counsel again moved for a mistrial and argued the late discovery violated defendant's constitutional right to due process and section 1054. In describing the prejudice from late disclosure, defense counsel argued that Haslam testified that Trujillo did not have a knife and, defense counsel elected not to cross-examine Haslam with his report that indicated Trujillo did have a knife because defense counsel had already advised the jury that Trujillo did not have a weapon during his opening statement. Therefore, the "defense is going to be hampered by the fact that this came in late in how I directed my cross at the time." Defense counsel argued that had the photographs and autopsy report been provided, he would have definitively known that Trujillo had a knife and not simply concluded that the report Haslam wrote after viewing the autopsy, which was provided to defense counsel during discovery, was mistaken in documenting Trujillo's possession of a knife.
After conducting further research, the trial court denied the motion for mistrial and concluded that any prejudice caused by the late disclosure could be cured by CALCRIM No. 306. The court further concluded that defendant was not deprived of a fair trial or due process because the reports timely provided in discovery disclosed that Trujillo possessed a knife, Haslam and Buckley were both cross-examined on that point, and CALCRIM No. 306 would cure any prejudice from the late disclosure.
Regarding late disclosure of the ballistic reports, defense counsel argued that defendant was prejudiced because those reports established that two casings not from defendant's gun were found on Trujillo's truck and would support an argument that Trujillo or his family had fired guns earlier in the day. The court pointed out that Haslam had testified that the .38-caliber casing was fired from a different gun. The prosecutor argued that the ballistic technician was available to be called to testify by the defense. The trial court ruled that instructing the jury with CALCRIM No. 306 and specifically referencing the ballistic reports would cure any prejudice, although the court concluded that any prejudice was minimal as those reports corroborate Haslam's testimony that some of the casings found were not fired from the same weapon that was used to shoot Trujillo.
The trial court denied defendant's motion to dismiss and for mistrial based upon the late disclosure of the ballistics reports. The jury was instructed with CALCRIM No. 306 a second time prior to closing arguments.
B. Applicable Law and Standard of Review
Defendant argues that the prosecution's failure to timely disclose photographs, reports, and ballistic reports was a violation of section 1054 and constituted error pursuant to Brady v. Maryland (1963) 373 U.S. 83 (Brady). A trial court's discovery rulings are reviewed for abuse of discretion. (People v. Ayala (2000) 23 Cal.4th 225, 299 (Ayala).) The trial court possesses the discretion to determine what sanction is appropriate to ensure a fair trial. (People v. Jenkins (2000) 22 Cal.4th 900, 951.)
1. Brady
Suppression by the prosecution of evidence favorable to the defendant violates due process where the evidence is material to either guilt or punishment. (Brady, supra, 373 U.S. at p. 87.) "Under the due process clause of the federal Constitution, the government has the obligation to disclose to the defendant evidence in its possession that is favorable to the accused and material to the issues of guilt or punishment. [Citations.] Evidence is material if a reasonable probability exists that a different result would have occurred in the proceeding had the evidence been disclosed to the defense. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings." (People v. Jenkins, supra, 22 Cal.4th at p. 954.) A delay in disclosure of evidence does not necessarily implicate a defendant's due process right to be informed of material evidence favorable to the accused. (Id. at p. 951.)
"[A] true Brady violation occurs only when three conditions are met: 'The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.' [Citation.] Under this standard prejudice focuses on 'the materiality of the evidence to the issue of guilt or innocence.'" (People v. Lucas (2014) 60 Cal.4th 153, 274, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53-54, fn. 19.)
Section 1054.1 provides, in pertinent part, that the "prosecuting attorney shall disclose" certain types of material to defense counsel if the evidence "is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies." Such disclosure "shall be made at least 30 days prior to the trial" or as soon as the prosecution learns of the documents or information. (§ 1054.7.) To prevail on a claim alleging a violation of discovery statutes, defendant must show there is a reasonable probability that, had the evidence been disclosed, the result of the proceedings would have been different. (People v. Zambrano (2007) 41 Cal.4th 1082, 1132, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421 &fn. 22 (Doolin).)
C. Analysis
We conclude that no Brady error occurred based upon the delayed disclosure of the reports concerning the discovery of Trujillo's knife during the autopsy. While the crime's technician's report of the autopsy and photographs of the knife were not provided to the defense until trial, the fact that Trujillo was carrying a knife on his belt when shot was documented in Haslam's report of the autopsy, which was timely provided to the defense. In addition, this evidence was presented at trial; both Detective Haslam and Crime Scene Specialist Buckley testified to the presence of the weapon, and defense counsel cross-examined them. "Evidence actually presented at trial is not considered suppressed for Brady purposes, even if that evidence had not been previously disclosed during discovery." (People v. Mora and Rangel (2018) 5 Cal.5th 442, 467 (Mora).)
Defendant argues that Trujillo's possession of a knife was "material impeachment evidence" and "significant as to whether an intoxicated Trujillo was armed during the confrontation." Haslam was impeached concerning his incorrect testimony that Trujillo did not have a knife, so there is no prejudice from the delayed disclosure. Furthermore, defendant testified that he believed that Trujillo had a firearm, not a knife, and did not testify that Trujillo threatened him with a knife nor that he even knew that Trujillo was carrying a knife. Therefore, the fact that Trujillo was armed with a knife was not material to defendant's claim of self-defense, and defendant suffered no prejudice from the delayed disclosure.
Regarding the late disclosure of the ballistic reports, defense counsel argued that defendant was prejudiced because those reports established that two casings not from defendant's gun were found on Trujillo's truck and supported defendant's argument that Trujillo or his family had fired guns earlier in the day and, therefore, defendant reasonably believed that Trujillo possessed a firearm. However, we similarly conclude defendant was not prejudiced by the delayed disclosure of the ballistic reports. Although they were not admitted at trial, they did not constitute favorable evidence that was suppressed within the meaning of Brady. (See Brady, supra, 373 U.S. at p. 87.)
The ballistic reports confirmed that two casings found on Trujillo's hood, in the area below the windshield, were not fired from defendant's gun. Detective Haslam had testified that the two casings were fired from different firearms and that they could have been left there from an earlier shooting. The ballistics evidence would have corroborated Haslam's testimony that the two casings were not fired from defendant's firearm but would not have established when the two casings landed on Trujillo's vehicle. The trial court correctly concluded that the ballistics evidence was cumulative of Haslam's testimony.
Significantly, neither defendant nor other witnesses testified that Trujillo fired a gun during his encounter with defendant. Defendant testified that he never even saw Trujillo with a gun that night. Defendant did testify that he heard gunshots earlier in the evening from the property associated with Trujillo's father and knew that Trujillo had guns. Other evidence was presented at trial corroborating defendant's testimony that Trujillo owned firearms, including the testimony of N.A. that Trujillo owned firearms, the firearm magazines, nine-millimeter ammunition found inside Trujillo's truck, and the rifle found in the locked toolbox in the bed of Trujillo's truck. These items corroborated defendant's belief that Trujillo had access to firearms, and the ballistic evidence would not assist defendant in establishing that Trujillo fired a gun earlier that day.
Additionally, the trial court provided defense counsel with a half-day continuance, as requested, to permit counsel to review and investigate the new discovery. Even though the ballistic technician was available to be called by the defense, defense counsel did not call the technician as a witness. The trial court ruled that instructing the jury with CALCRIM No. 306 and specifically referencing the ballistic reports would cure any prejudice, although the court concluded that any prejudice was minimal as those reports corroborated Haslam's testimony that two of the casings were not fired from the same weapon that was used to shoot Trujillo.
Accordingly, we conclude that the trial court did not abuse its discretion in denying defendant's mistrial because the ballistic reports were provided to counsel within sufficient time for defendant to use the evidence effectively at trial. (See People v. Wright (1985) 39 Cal.3d 576, 590-591.) Furthermore, the ballistic report was cumulative of Haslam's testimony that some of the casings were not fired from defendant's gun, and defendant was not prejudiced by the late disclosure. (See Mora, supra, 5 Cal.5th at p. 467.)
We also find no statutory error. No prejudicial statutory violation can be made out because defendant has not demonstrated a reasonable probability that the results of the proceedings would have been different had the evidence been timely disclosed. (People v. Zambrano, supra, 41 Cal.4th at p. 1132.) Defendant's claim of self-defense was based upon his belief that Trujillo had a firearm and, therefore, Trujillo's possession of a knife was not material to his defense. The trial court granted defendant a continuance for defense counsel to review the ballistics reports, but defendant did not request additional time to find an expert, nor did he call the ballistics technician to testify that the two casings found on the hood of Trujillo's truck were not fired from defendant's firearm. Furthermore, Haslam testified that the two casings were fired from a different firearm, and other evidence at trial supported defendant's claim that Trujillo had access to firearms such that we cannot conclude that the outcome of the trial would have been different had the ballistic reports been timely discovered.
The trial court did not abuse its discretion to deny defendant's motion for mistrial having found that any prejudice from the late discovery was curable by instructing the jury with CALCRIM No. 306.
III. The prosecutor did not engage in misconduct during closing arguments.
A. Background
During closing arguments, the prosecutor reminded the jury that defendant "had the benefit of knowing the evidence in this case for the last two years. He's had the benefit of knowing what the police found" and "of sitting here and listening to [N.A.] and [G.A.] testify before he testified." She also argued that defendant knew the police had found bloody tissues near the crime scene and there was no proof as to when it was placed there or whose blood was on it, and she urged the jury to "discount these selfserving statements."
Defendant argues that the prosecutor's comments violated defendant's right to due process and right to confront witnesses by suggesting that these rights provided him an unfair advantage that allowed him to fabricate a version of events. Defendant further argues that defense counsel was ineffective for failing to object to the prosecutor's comments but acknowledges that an objection would have been futile. We reject defendant's arguments.
B. Applicable Law and Standard of Review
"' "The applicable federal and state standards regarding prosecutorial misconduct are well established.' "A prosecutor's ... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.'"' [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves '" 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'" '" '" (People v. Abilez (2007) 41 Cal.4th 472, 494.)
"To preserve a claim of prosecutorial misconduct for appeal, a defendant must object and seek an admonition if doing so would have cured the harm." (People v. Kennedy (2005) 36 Cal.4th 595, 618, disapproved on other grounds by People v. Williams, supra, 49 Cal.4th at p. 459.) The objection must be made on the same ground upon which the defendant now assigns error. (People v. Jones (2003) 29 Cal.4th 1229, 1262.) If a defendant fails to object, the misconduct claim is preserved for review only if an admonition would not have cured the harm. (People v. Cook (2006) 39 Cal.4th 566, 606.)
"In order to be entitled to relief under state law, [a] defendant must show that the challenged conduct raised a reasonable likelihood of a more favorable verdict. In order to be entitled to relief under federal law, [a] defendant must show that the challenged conduct was not harmless beyond a reasonable doubt." (People v. Blacksher (2011) 52 Cal.4th 769, 828, fn. 35, citing People v. Cook, supra, 39 Cal.4th at p. 608.)
C. Analysis
1. Forfeiture
We find defendant forfeited this issue by failing to make a timely objection. "[T]he initial question to be decided in all cases in which a defendant complains of prosecutorial misconduct for the first time on appeal is whether a timely objection and admonition would have cured the harm. If it would, the contention must be rejected ._" (People v. Green (1980) 27 Cal.3d 1, 34, overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 240-241 [pertaining to asportation element of simple kidnapping] &People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3 [pertaining to admission of third party evidence], as stated in as stated in People v. Morales (2001) 25 Cal.4th 34, 42 & fn. 5.) "The reason for this rule, of course, is that 'the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury.'" (Green, at p. 27.) The failure to timely object and request an admonition will be excused if doing either would have been futile, or if an admonition would not have cured the harm. (People v. Hill (1998) 17 Cal.4th 800, 820.)
Defendant acknowledges that no objection was made but argues in conclusory fashion that the omission should be excused because an admonition would not have cured the harm. We are not persuaded. Generally, a prosecutor's statements that are not based on the evidence or related to a matter of common knowledge can be offset by an instruction or admonition by that court. (People v. Bell (1989) 49 Cal.3d 502, 539.) In Bell, the prosecutor made several statements to which Bell failed to object. (Id. at pp. 535-536.) The prosecutor made a technically misleading statement that an expert's opinions were worthless because he was not present at the scene, suggested that defense counsel withheld the contents of" 'many, many, many pages of police reports'" during cross-examination of Bell's expert witness where such reports had not been admitted into evidence, analyzed the defense's strategy to suggest that defense counsel believed Bell was guilty, and misstated the effect of cocaine on an individual that was factually inaccurate and a matter not admitted into evidence. (Id. at pp. 535-539.) The court concluded, "In none of the instances of misconduct to which [the] defendant failed to object was the misconduct so egregious that a timely admonition would not have cured its impact." (Id. at pp. 539-540; see People v. Centeno (2014) 60 Cal.4th 659, 674 ["prosecutor's misstatements of law are generally curable by an admonition from the court"].)
One exception to the forfeiture rule is found when misconduct is pervasive, defense counsel 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. Hill, supra, 17 Cal.4th at pp. 821, 836.) The California Supreme Court has described Hill as a limited exception to the forfeiture rule "[u]nder the unusual circumstances presented," where it "concluded that were counsel to continue to object, he risked further provoking the court's wrath over' "meritless" objections,' which would have been 'counterproductive to his client.'" (People v. Clark (2011) 52 Cal.4th 856, 960 (Clark).) This case was not remotely close to that extreme. While defendant argues that the trial court overruled more of defendant's objections than those of the prosecutor, defendant does not argue that the trial court's rulings were incorrect or that the trial court characterized his objections as a waste of time or meritless in front of the jury. The trial atmosphere here was not poisonous, counsel failed to object to the claimed instance of misconduct, and the record fails to establish that objections would have been futile. (See People v. Hillhouse (2002) 27 Cal.4th 469, 501-502.)" 'The normal rule requiring an objection applies here, not the unusual one applied to the extreme circumstances of .. Hill ....'" (Id. at p. 502.)
In Green, the defendant claimed nine alleged instances of prosecutorial misconduct by the prosecutor in the course of his closing argument to the jury. (People v. Green, supra, 27 Cal.3d at p. 27.) They included remarks in which the prosecutor expressed his disbelief of the defendant's alibi, his denial of a conspiracy between his office and the prosecution witnesses, and his reason for not calling certain persons to testify, together with his partial misstatement of the law of reasonable doubt. (Id. at p. 34) "Without deciding whether those remarks constituted misconduct, we have examined each in context and are of the view that any harm flowing therefrom could have been cured by appropriate admonition. There is accordingly no ground to excuse [the] defendant from the general requirement of a timely objection, and the point must be deemed waived." (Id. at pp. 34-35.)
Defendant has failed to show that the prosecutor's argument was so prejudicial that a jury would have been unable to disregard the prosecutor's argument upon instruction by the trial court. Therefore, we conclude defendant forfeited his claim of prosecutorial misconduct by not objecting below. To the extent that defendant attempts to argue that counsel was ineffective in failing to object, we find below that the prosecutor's argument was not misconduct and, therefore, defendant cannot show prejudice. (See People v. Mickel (2016) 2 Cal.5th 181, 198, citing Strickland v. Washington (1984) 466 U.S. 668, 687-692 ["In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel's performance was deficient and that the defendant suffered prejudice as a result of such deficient performance."].)
2. Argument that defendant tailored his testimony after reviewing discovery and hearing other witness testimony
Defendant argues that the prosecutor's argument punished defendant's federal constitutional rights to due process under the Fifth Amendment and to confront witnesses under the Sixth Amendment because it denigrated defendant for relying upon his right to discovery and to confront the witnesses against him by suggesting that he had an unfair advantage that allowed him to fabricate a version of events. We reject defendant's argument.
Defendant contends the prosecutor committed misconduct by implying that defendant's testimony was not credible because he had the opportunity and motive to concoct a story that explained away damaging evidence. But the prosecutor's comments merely urged the jury to question defendant's credibility. The United States Supreme Court has recognized that a defendant's constitutional protections do not preclude a prosecutor from commenting upon their ability to tailor their testimony to be consistent with evidence already introduced. (Portuondo v. Agard (2000) 529 U.S. 61, 69-70 (Portuondo).)
In Portuondo, the defendant argued that the prosecutor's comments that his presence at trial afforded him the ability to fabricate his testimony unlawfully burdened his Sixth Amendment right to be present at trial and to be confronted with the witnesses against him and unconstitutionally attached the cost of impeachment to the exercise of these rights. (Portuondo, supra, 529 U.S. at p. 65.) The Supreme Court declined to extend the rationale of Griffin v. California (1965) 380 U.S. 609, which prohibited a jury from using a defendant's exercise of his right not to testify as evidence against him, to the prosecutor's comments. (Portuondo, at p. 65.) In doing so, the Supreme Court said that once a defendant takes the stand" 'his credibility may be impeached and his testimony assailed like that of any other witness.'" (Id. at p. 69.) The Supreme Court concluded there was "no reason to depart from the practice of treating testifying defendants the same as other witnesses." (Id. at p. 73.) Indeed, a prosecutor's comment about a defendant's opportunity to tailor his or her testimony to the other evidence properly serves the central truth-seeking purpose of trial. (Ibid.)
The Supreme Court's decision in Portuondo, supra, 529 U.S. 61 refutes defendant's claim that the prosecutor's argument impinged on his constitutional rights to a fair trial and to confront witnesses. Defendant cites no specific authority holding that the prosecutor's argument was improper. While defendant's argument relies upon Griffin v. California, supra, 380 U.S. 609 for the proposition that guilt cannot be inferred by reliance on a constitutional right, he failed to bring our attention to Portuondo, which specifically refused to extend its holding to a prosecutor's comment about a defendant's opportunity to tailor his testimony to the other evidence. Based on Portuondo, we similarly conclude that the prosecutor committed no misconduct in arguing that defendant's review of the discovery also provided him an opportunity to tailor his testimony to the evidence.
In his reply brief, defendant attempts to distinguish Portuondo, arguing for the first time that the prosecutor's statements lacked a factual basis and the prosecutor should have known that defendant's testimony was consistent with the postarrest statement he made to the police before he had the opportunity to review the investigative reports provided in discovery and hear trial testimony.
Defendant did not make this argument in his opening brief, even though Portuondo should have been cited in his opening brief, and defendant's statement was not introduced into evidence at trial and is not a part of this court's record (except to the extent it was summarized during the preliminary hearing). However, we decline to find that the prosecutor's argument lacked a factual basis based upon the preliminary hearing testimony of the interrogating detective. Defendant testified at trial that Trujillo punched defendant, causing his nose to bleed, and that he used tissues to stop the bleeding and then threw the tissues in the trash. Our review of the preliminary hearing testimony, however, shows that defendant told police that he went to his truck to "clean[ ] his face" and "g[e]t a gun." The discovery and testimony at trial showed that bloody tissues were found in the trash near Trujillo's body and support the prosecutor's argument that defendant tailored his trial testimony to the discovery and testimony of other witnesses. According to the preliminary hearing testimony, defendant did not have any injuries to his face. We also note that at trial, defendant testified that he shot Trujillo because he thought that Trujillo was reaching into his vehicle to get a gun and feared that Trujillo would shoot him. According to the preliminary hearing testimony, defendant told the detective that he thought Trujillo reached into the truck to obtain a knife. However, the discovery and trial evidence showed that Trujillo had a knife in his belt and would not have needed to reach inside the truck for a knife. These discrepancies support the prosecutor's closing argument that defendant tailored his testimony to the discovery and trial testimony.
We conclude that defendant has failed to show that the prosecutor committed misconduct in closing argument by arguing that defendant fabricated his trial testimony in response to reading reports and listening to trial witnesses.
IV. The prosecutor did not violate the RJA by arguing that defendant admitted he was upset that no party guest offered him a taco or by discussing defendant's free living arrangements on property near where defendant killed Trujillo.
A. Background
1. Defendant's testimony
The prosecutor asked, "Were you mad that no one offered you food?" Defendant responded, "Well, I was there, and they didn't even give me a taco," but denied that he was mad. Defendant, on redirect examination, testified that the individuals involved with killing the cow had nothing to do with Trujillo or Trujillo's people and defendant's interaction with Trujillo had nothing to do with being upset that defendant did not get a taco.
2. Prosecutor's closing argument
During closing argument and in discussing a possible motive, the prosecutor argued, "Defendant's sense of entitlement was evident from his testimony. [He] calls a corral where he sometimes sleeps and the truck that he sleeps in, this area is his home even though he doesn't pay rent. He stays there in exchange for taking care of the animals and land, according to him. [He] was mad that no one brought him a taco. It's Father's Day, he has kids, he's a father. The least they can do is bring him a taco when they're celebrating. He thought when [Trujillo] was driving down the road the least he could do was give him something to drink. He had no water. He thought he could bring him a soda or something. He had no gas in his truck to go get his own. How dare [Trujillo] confront him about the issues that [Trujillo]-I mean, that the Defendant had with [Mario]. How dare [Trujillo] take up this-this dispute with [defendant]. How dare [Trujillo] not leave when the Defendant tells him to even though [Trujillo] has more of a legal right to be there than he does." In conclusion, "I want to remind you that pride has never been mentioned to you as a defense. The Defendant's ego was bruised, the Defendant was prideful. That is not a defense to first[ ]degree murder."
3. Defendant's closing argument
Defense counsel responded to this aspect of the prosecutor's argument, "[T]here's no way that [defendant] killed for a taco." Defense counsel also told the jury that defendant was not referring to Trujillo's family when he made the statement, but rather, was referring to the owner of property where he lived because he had assisted in killing a cow to barbecue. Defense counsel also characterized the prosecutor's argument as a criticism of defendant's lifestyle and advised the jury that it could not consider defendant's lifestyle as evidence of guilt.
4. Prosecutor's rebuttal
The prosecutor responded to defense counsel's argument and clarified her argument: "According to the Defendant, he doesn't have any problems with anybody. He's just this sweet old man that wanted a taco. And no one is saying that he killed ... Trujillo over a taco. No one is judging his lifestyle. No one is saying that he can't consider the corral and the truck his home. What the People are telling you and what I think that you will find once you deliberate is that there is no legal excuse for killing a man in front of his family because he won't leave this property. That's the point. Not that he was living in a substandard way. But he-his pride and his sense of entitlement made him feel like it was okay for him to shoot [Trujillo] because [Trujillo] wouldn't leave, according to what he told us." "It's a matter of [defendant] thinking that he can get away with anything and that he deserves people to provide him with the things that he needs in life."
Defense counsel did not object to the prosecutor's argument.
B. Applicable Law and Legal Principles
The RJA provides, "The state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin." (§ 745, subd. (a).) The statute provides four categories of conduct that establish a violation if proved by a preponderance of the evidence. (§ 745, subds. (a), (c)(2).) Defendant alleges that the prosecutor violated section 745, subdivision (a)(2), that is: "During the defendant's trial, in court and during the proceedings, ... an attorney in the case, . . . used racially discriminatory language about the defendant's race, ethnicity, or national origin, or otherwise exhibited bias or animus towards the defendant because of the defendant's race, ethnicity, or national origin, whether or not purposeful."
The statute defines" '[r]acially discriminatory language'" as "language that, to an objective observer, explicitly or implicitly appeals to racial bias, including, but not limited to, racially charged or racially coded language, language that compares the defendant to an animal, or language that references the defendant's physical appearance, culture, ethnicity, or national origin. Evidence that particular words or images are used exclusively or disproportionately in cases where the defendant is of a specific race, ethnicity, or national origin is relevant to determining whether language is discriminatory." (§ 745, subd. (h)(4).) However, section 745, subdivision (a)(2) specifically provides that it "does not apply if the person speaking is relating language used by another that is relevant to the case."
The RJA requires a trial judge to impose a remedy if the defendant has proven a violation of the RJA by a preponderance of the evidence. (§ 745, subds. (a)(2), (c), (e)(2).) Section 745, subdivision (e), states: "[T]he court shall impose a remedy specific to the violation found." The statute specifies remedies based on whether judgment has been imposed. (§ 745, subds. (e)(1) [before judgment, declare mistrial or discharge jury and empanel new jury], (e)(2) [after judgment, reduce offense &impose new sentence].) The statute also authorizes a trial court to "dismiss enhancements, special circumstances, or special allegations, or reduce one or more charges" in the interests of justice. (§ 745, subd. (e)(1)(C).) Additionally, if there was a violation, the defendant is not eligible for the death penalty. (§ 745, subd. (e)(3).) Finally, the court may impose "other remedies available under the United States Constitution, the California Constitution, or any other law." (§ 745, subd. (e)(4).)
Subdivision (b) of section 745 informs defendants how to seek relief during various stages of a criminal proceeding. As originally enacted and pertinent to this case, effective January 1, 2021, defendants could seek relief by filing a motion in the trial court if judgment had not yet been imposed, alleging a violation of section 745, subdivision (a). (Former § 745, subd. (b); Stats. 2020, ch. 317, § 3.5.) When enacted, former section 745 applied only prospectively to cases in which judgment had not been entered prior to January 1, 2021. (Former § 745, subd. (j), Stats. 2020, ch. 317, § 3.5.) Therefore, in all eligible cases, defendant had the opportunity to raise an RJA claim in the trial court.
Section 745 was later amended, effective January 1, 2023, to provide for retroactive application to all judgments that were not final. (§ 745, subd. (j)(1); Stats. 2022, ch. 739, § 2.) At the same time, section 745, subdivision (c) was amended to provide that "[a] motion made at trial shall be made as soon as practicable upon the defendant learning of the alleged violation. A motion that is not timely may be deemed waived, in the discretion of the court." (Stats. 2022, ch. 739, § 2.)
After retroactive application became possible and while this case was pending on appeal, section 745 was amended by Assembly Bill No. 1118 (2023-2024 Reg. Sess.), effective January 1, 2024. The statute now provides that post-judgment RJA claims based on the trial record may be raised on direct appeal from the conviction or sentence. (§ 745, subd. (b), as amended by Stats. 2023, ch. 464, § 1.) As an alternate method, a defendant may also request a stay of the direct appeal and remand to allow the filing of a motion in the trial court. (§ 745, subd. (b).)
One Court of Appeal has held that "the long-standing procedural appellate rules governing forfeiture of issues continue to apply" and found that the defendant had forfeited his RJA claim by not filing a motion in the trial court. (People v. Lashon (2024) 98 Cal.App.5th 804, 809.) The People have not advanced this argument.
C. Analysis
1. Forfeiture
The People argued in their responding brief, filed before the 2023 amendment, that the RJA did not specifically allow defendant to raise his claim for the first time on direct appeal and that he had, therefore, forfeited his claim by failing to file a motion in the trial court. Defendant, in his reply, relies upon the 2023 amendment to argue that his RJA claim is based solely on the trial court record and, therefore, may now be raised for the first time on appeal. The People have not requested permission to provide supplemental briefing as to the effect of the amendments to section 745. However, we shall assume that defendant's RJA claim may be raised for the first time on direct appeal but conclude that defendant has failed to demonstrate a violation of the RJA by a preponderance of the evidence.
Defendant has not requested that we stay this appeal and remand his case back to the trial court.
2. The prosecutor did not violate the RJA
Defendant argues that the prosecutor's suggestion to the jury that defendant killed Trujillo because defendant had not been offered a taco inappropriately appealed to "cultural identity, that when combined with comments regarding [defendant's] lower economic status, was an unfair weight on the scale as to whether he was truthful about his fear that he was about to be killed, and whether in fact he had been already physically assaulted by Trujillo. A taco is a well[-]known food of the common people readily associated with Mexico and Mexican culture."
The People argue that "the prosecutor's reference to 'taco'" in discussing defendant's testimony "merely 'relat[ed] language used by another that is relevant to the case,' '' which does not violate section 745, subdivision (a)(2). We agree.
Section 745, subdivision (h)(4) defines "racially discriminatory language" as language that explicitly or implicitly appeals to racial bias to an objective observer. The prosecutor here used the term "taco" because defendant testified that he believed he should have been offered a taco after having assisted in butchering the cow. Defendant has failed to demonstrate that the term "taco" is either racially charged or racially coded language as tacos are a common food dish served in most California restaurants and enjoyed by many Californians regardless of ethnicity. While tacos are a well-known food dish associated with Mexican cuisine, the prosecutor used the word when describing defendant's testimony regarding his feelings about being excluded from sharing a meal and related language used by defendant in describing defendant's attitude toward Trujillo during their encounter, a permissible use of defendant's testimony under the RJA. (See § 745, subd. (a)(2).)
We find support for this conclusion in comparing the prosecutor's argument in this case with that of the prosecutor in People v. Simmons (2023) 96 Cal.App.5th 323 (Simmons). The prosecutor in that case described Simmons as a "smooth talk[er]" when commenting on his trial testimony, characterizing his testimony as essentially bragging "about all the women he was able to fool with his good looks" and stating Simmons "admitted to having an ambiguous ethnic presentation and that people that don't know him think he's something other than Black.” (Simmons, at p. 331.) The parties agreed that the prosecutor violated the RJA because the prosecutor suggested that Simmons was not a credible witness and was deceptive based upon his "ambiguous ethnic presentation." (Id. at pp. 331-332.) The trial court found that the comment violated section 745, subdivision (a) because it equated "[Simmons's] skin tone and 'ethnic presentation' with deception, implying that he was not a credible witness because the color of his skin fooled women and confused strangers. The suggestion that a witness is lying based on nothing more than his complexion is as baseless as it is offensive." (Simmons, at p. 336.)
During cross-examination, the prosecutor questioned Simmons about his skin color, which initially may have been an attempt to corroborate a witness who testified that the shooter was "fair-skinned." (Simmons, supra, 96 Cal.App.5th at pp. 328, 330.)
Unlike Simmons, supra, 96 Cal.App.5th 323, the prosecutor here did not explicitly or implicitly suggest that defendant was not credible because he ate tacos or was born in Mexico. The prosecutor had cross-examined defendant regarding a statement he made to the police that he was upset that he had not been offered something to eat after having assisted in butchering the cow. Defendant testified that he did feel that he should have been offered a taco but denied that his sentiments related to Trujillo or his family. The prosecutor's comment on the evidence did not violate the RJA because the comment related language used by defendant that was relevant to the case (see § 745, subd. (a)(2)) and did not suggest that defendant's race or ethnicity made him more likely to kill, to kill without needing to defend himself, or to testify falsely, distinguishing this case from Simmons.
Defendant also argues that the prosecutor's reference to "tacos" was racially discriminatory or coded language in conjunction with the prosecutor's comments about defendant's living quarters. However, the prosecutor's comments regarding defendant's living arrangements related to defendant's claim that he was protecting his home from Trujillo and did not suggest that defendant was more likely to kill based upon his living arrangements or economic status, nor did the prosecutor equate defendant's socioeconomic status with his credibility or attempt to appeal to stereotypes that might affect the jurors' views of defendant's testimony.
Section 745 defines" '[r]acially discriminatory language'" as "language that, to an objective observer, explicitly or implicitly appeals to racial bias," "or language that references the defendant's physical appearance, culture, ethnicity, or national origin." (§ 745, subd. (h)(4).) Therefore, comments relating to a defendant's socio-economic status (not included in § 745) can only be actionable under the RJA if associated with defendant's "culture, ethnicity, or national origin" (§ 745, subd. (h)(4)). We do not find that an objective observer would conclude that the prosecutor's comments appeal to racial bias either explicitly or implicitly, nor that the prosecutor's words or images are those "used exclusively or disproportionately in cases where the defendant is of a specific race, ethnicity, or national origin" (§ 745, subd. (h)(4)).
Therefore, defendant has failed to demonstrate by a preponderance of the evidence that the prosecutor violated the RJA.
V. The trial court did not err in precluding defense counsel from cross-examining Gopal as to the toxicology results.
A. Background
During cross-examination of Chief Forensic Pathologist Gopal, defense counsel asked whether Gopal had viewed a toxicology report of Trujillo and whether Gopal would rely upon such a report as an expert. Gopal indicated that the toxicology is part of his examination in most cases and that he relies upon the toxicology report for the values of the blood and body fluids. Gopal agreed with defense counsel that "part of [his] investigations would rely on this type of report." Gopal testified that he reviewed the toxicology report. However, when defense counsel asked Gopal to testify as to the amount of alcohol found in Trujillo's blood, the prosecutor objected that the results were hearsay and a sufficient foundation had not been laid for their introduction into evidence. The trial court sustained the objection, and the parties engaged in an unreported sidebar conversation after which defense counsel indicated that he had no further questions.
After dismissing the jury for the day, the trial court asked that the content of the sidebar be placed on the record. Defense counsel argued that he had established the necessary foundation for his question because Gopal was an expert who would "rely on such a report in his determination if any end result of decedent's life" and that he was seeking to have Gopal base an opinion on that piece of evidence. Defense counsel advised the court that he was trying to elicit the fact that Trujillo had a high amount of alcohol in his blood "that could have affected any type of medical operate within his system" and whether his blood-alcohol level contributed to his death. The prosecutor responded that defense counsel could ask hypothetically whether a high alcohol content could have contributed to the gunshot wounds being more or less deadly, but that Gopal could not lay a foundation for the exact result of the blood-alcohol tests because he did not participate in the testing.
The trial court sustained the objection because defense counsel was seeking to elicit the results of the toxicology report and, while an expert can rely on hearsay in formulating an opinion, "[t]here may be Sanchez issues pertaining to that," and defense counsel had not laid the proper foundation for the test results by someone who conducted the tests.
(People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).)
B. Standard of Review and Applicable Law
Defendant argues that the trial court prejudicially erred and abridged his constitutional right to present a defense when it sustained a foundational objection to defense counsel's attempt to elicit Trujillo's blood-alcohol level from Gopal who did not perform the tests.
In general, an expert witness may "state on direct examination the reasons for [their] opinion and the matter ... upon which it is based, unless [they are] precluded by law from using such reasons or matter as a basis for [their] opinion." (Evid. Code, § 802.) "Any expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that [they] did so. Because the jury must independently evaluate the probative value of an expert's testimony, Evidence Code section 802 properly allows an expert to relate generally the kind and source of the 'matter' upon which [their] opinion rests." (Sanchez, supra, 63 Cal.4th at pp. 685-686.) "What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686.)
Evidence Code section 721 permits an expert to be cross-examined about "the matter upon which his or her opinion is based and the reasons for his or her opinion." (Evid. Code, § 721, subd. (a).) "The scope of this inquiry is broad and includes questions about whether the expert sufficiently considered matters inconsistent with the opinion. [Citation.] Thus, an adverse party may bring to the attention of the jury that an expert did not know or consider information relevant to the issue on which the expert has offered an opinion." (Doolin, supra, 45 Cal.4th at p. 434; accord, People v. Nieves (2021) 11 Cal.5th 404, 448 [" 'The scope of cross-examination permitted under [Evidence Code] section 721 is broad, and includes examination aimed at determining whether the expert sufficiently took into account matters arguably inconsistent with the expert's conclusion.' "].)
Nonetheless, while the scope of cross-examination may be extensive, the trial court has wide discretion in determining the appropriate scope of cross-examination. (People v. Steskal (2021) 11 Cal.5th 332, 359 [" 'It is settled that the trial court is given wide discretion in controlling the scope of relevant cross-examination.' "].) "The defense is typically given wide latitude to test the credibility of [expert] witnesses, but the trial court may still place reasonable limits on defense counsel's inquiries." (People v. Royal (2019) 43 Cal.App.5th 121, 149 (Royal).)
We review the trial court's evidentiary rulings for an abuse of discretion. (Mora, supra, 5 Cal.5th at p. 502; Royal, supra, 43 Cal.App.5th at p. 149.)
C. Analysis
The trial court sustained the prosecution's foundational and hearsay objections to defense counsel's question as to the results of the toxicology report because Gopal had not performed the tests and lacked the ability to lay the foundation for admitting the results. Defendant argues that his question regarding Trujillo's blood-alcohol level was relevant to provide an explanation regarding the stippling found on the wounds and could have supported defendant's testimony that Trujillo refused to leave, made unreasonable threats, and was in close proximity to defendant when defendant sought to defend himself. Defendant also argues that the testimony regarding Trujillo's blood-alcohol level could have impeached N.A., who testified that Trujillo was not drunk, and corroborated defendant's testimony that Trujillo was drunk and belligerent. Leaving aside that defense counsel did not offer these rationales to the trial court to support his question, use of the toxicology results for this purpose would be hearsay and necessarily relies upon the truth of the results. An expert may not relate inadmissible "case-specific facts about which the expert has no independent knowledge." (Sanchez, supra, 63 Cal.4th at p. 676.)
The trial court also correctly recognized that defense counsel was required to lay the proper foundation for admission of the test results. For foundational purposes, the proponent of laboratory evidence must demonstrate the correct scientific procedures were used as a foundation for admitting it at trial. (People v. Jones (2013) 57 Cal.4th 899, 936.) This includes information as to whether the toxicology tests were properly administered, with a qualified operator, and performed with properly functioning equipment. (People v. Williams (2002) 28 Cal.4th 408, 417.) Defendant failed to elicit information regarding the foundation for admission of the toxicology test results and, based upon Gopal's testimony, could not have done so by additional questioning of Gopal. Therefore, if defendant intended to use the toxicology results for their truth, the trial court did not err in concluding that Gopal's testimony on that topic would be hearsay and an adequate foundation was necessary for admission. (See People v. Kocontes (2022) 86 Cal.App.5th 787, 862-863 [trial court erred in permitting forensic pathologist to testify regarding victim's blood-alcohol level from tests performed by another expert and without first-hand knowledge of testing procedures].) Significantly, however, while the trial court sustained an objection to eliciting this information from Gopal, its ruling did not prevent defense counsel from admitting the evidence through a witness who could lay the proper foundation.
Defendant also argues that the trial court erred in restricting his cross-examination of Gopal because "it is well established that experts may rely on hearsay reports" in rendering their opinions, citing Cross v. Superior Court (2017) 11 Cal.App.5th 305, 328 and People v. Campos (1995) 32 Cal.App.4th 304, 308 (Campos), and that the expert may also be cross-examined with the contents of such hearsay reports. While true that an expert may rely on hearsay in forming an opinion, on direct examination the expert may only tell the jury in general terms that it did so and may not "relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Sanchez, supra, 63 Cal.4th at pp. 685686.)
However, as discussed, Evidence Code section 721 permits an expert to be broadly cross-examined regarding the matters on which his or her opinion is based and the reasons for that opinion. Experts may also be cross-examined regarding whether they considered information arguably relevant to, or inconsistent with, their opinion. (Doolin, supra, 45 Cal.4th at p. 434; People v. Nieves, supra, 11 Cal.5th at p. 448.) If used in this manner, the toxicology report would not be introduced for the truth of the matter asserted but only to impeach Gopal's opinion either because he failed to consider the report, or because the report was inconsistent with his opinion. (See Doolin, at p. 434; Nieves, at p. 448.) We, therefore, agree with defendant that he could have asked Gopal as to whether Gopal considered the extent of Trujillo's intoxication when determining Trujillo's cause of death or in forming an opinion as the distance between defendant's gun and Trujillo when shot. However, defense counsel did not ask Gopal those questions, nor did the trial court's ruling affect defense counsel's ability to pose those questions.
Defendant argues that he should have been permitted to cross-examine Gopal with the content of the toxicology report pursuant to Campos, supra, 32 Cal.App.4th 304 which recognized that, while the content of reports may not be admitted during direct examination of the expert, that rule does not preclude cross-examination on the content of the reports. (Id. at p. 308 [" '[P]rocedurally, if an expert does rely in part upon the opinions of others, the expert may be cross-examined as to the content of those opinions. It is improper, however, to solicit the information on direct examination if the statements are inadmissible.' "].)
We note that Campos, supra, 32 Cal.App.4th 304 was decided prior to the Supreme Court's 2016 decision in Sanchez, supra, 63 Cal.4th 665 and one court has applied Sanchez's rule to the cross-examination of expert witnesses as well. (See People v. Malik (2017) 16 Cal.App.5th 587, 596-598.) However, Campos does not assist defendant's argument even if still good law because it specifically requires that the expert relied upon the opinion of the other expert. (Campos, at p. 308.) Here, Gopal did not testify that he relied upon the toxicology report in forming his opinion as to either Trujillo's cause of death or the angle of the bullets. Gopal testified only that he sends samples to a contracted toxicology laboratory in most cases and explained, "[W]e have drug overdose cases and the toxicology is part of the examination." Gopal also testified that the toxicology report in this case was a part of his report and that he had reviewed the findings. However, Gopal's testimony did not suggest that the report factored into his opinion as to Trujillo's cause of death or that his opinion as to the direction the bullets traveled through Trujillo's body would have been affected by such information. (People v. Peoples (2016) 62 Cal.4th 718, 766 [trial court did not abuse its discretion in limiting cross-examination of a second expert by defense counsel who attempted to question second expert about first expert's testimony during a prior phase of trial because "the trial court could justifiably be concerned that defense counsel was attempting to elicit [first expert]'s hearsay opinion through cross-examination of [second expert] without calling [first expert] to the stand")
Because defense counsel did not establish that Gopal relied upon the results of the toxicology report in formulating his opinions, the trial court acted within its discretion in limiting defense counsel's question as to the toxicologist's hearsay results regarding Trujillo's blood-alcohol level, notwithstanding the broad scope of cross-examination afforded by Evidence Code section 721. (See Royal, supra, 43 Cal.App.5th at pp. 150151 [trial court did not abuse its discretion in prohibiting defense counsel from asking prosecution's expert witness about matters upon which the expert did not rely and for which there was no admissible evidence: "Although the scope of cross-examination is typically broad [citation], this principle does not require a trial court to ignore the rules of evidence."].)
Notwithstanding the court's ruling, defense counsel could still have explicitly asked Gopal whether Trujillo's blood-alcohol level impacted Gopal's opinion as to Trujillo's cause of death but did not do so. Similarly, the trial court did not restrict defense counsel from asking whether Trujillo's blood-alcohol level would have affected the path of the bullets as they traveled through Trujillo's body or from asking hypothetical questions designed to explore the significance of the information on Gopal's opinions. The trial court only precluded defense counsel's attempt to introduce the specific blood-alcohol content from the toxicology report, which Gopal had not apparently relied upon, and which was inadmissible hearsay.
Because the trial court did not rule that the toxicology results were inadmissible entirely, defendant's argument that the trial court's ruling deprived him of his constitutional right to present a complete defense is unavailing. "Whether rooted directly in the Due Process Clause of the Fourteenth Amendment [citation], or in the Compulsory Process or Confrontation clauses of the Sixth Amendment [citations], the Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'" (Crane v. Kentucky (1986) 476 U.S. 683, 690.) However, "[a] defendant's right to present relevant evidence is not unlimited .... [Citations.] A defendant's interest in presenting such evidence may thus' "bow to accommodate other legitimate interests in the criminal trial process." '" (United States v. Scheffer (1998) 523 U.S. 303, 308, fn. omitted.) One such interest is adherence to standard rules of evidence. (Taylor v. Illinois (1988) 484 U.S. 400, 410; People v. Gonzales (1994) 22 Cal.App.4th 1744, 1756.) Defendant has failed to demonstrate that the trial court's adherence to the rules of evidence violated his right to present a defense, especially considering that the trial court did not rule that the toxicology results were inadmissible but only that Gopal could not testify to them.
And even if the court's ruling was an abuse of discretion under state law, however, it is not reasonably probable the court's minimal restriction on the scope of Gopal's cross-examination prejudiced defendant. We may not reverse a judgment on the basis of the erroneous exclusion of evidence unless the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; Evid. Code, § 354.) Errors in excluding expert testimony are analyzed under the state law standard for prejudice in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Stoll (1989) 49 Cal.3d 1136, 1163.)" '[U]nder Watson, a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error.'" (People v. Beltran (2013) 56 Cal.4th 935, 955.)
Gopal concluded that Trujillo died due to perforation of the heart, aorta, right lung, liver, and left kidney due to multiple gunshot wounds, any one of which would have killed Trujillo because they caused overlapping injuries in major organs. Defense counsel did not challenge Gopal's opinion that Trujillo was killed by the four bullets in either his opening statement or closing argument but claimed that defendant shot Trujillo in self-defense. Since Trujillo's cause of death was not at issue in the trial, even if the trial court's ruling had prohibited any further inquiry as to Trujillo's blood-alcohol level, it would not have added anything of significance to defendant's cause of death. As Gopal provided no opinion as to whether the killing was in self-defense, further questioning was not relevant to defendant's claim of self-defense. We conclude that defendant has failed" 'show it is reasonably probable a more favorable result would have been obtained absent the error.'" (People v. Beltran, supra, 56 Cal.4th at p. 955.)
Therefore, the trial court did not abuse its discretion in ruling that Gopal could not testify to Trujillo's blood-alcohol level based upon the toxicology report and, even if error, defendant has failed to show that he was prejudiced.
VI. The trial court did not abuse its discretion in permitting use of conduct underlying 13-year-old Washington misdemeanor conviction to impeach defendant.
A. Background
The prosecution filed a motion in limine to permit defendant's impeachment by prior conduct. Defendant previously admitted to law enforcement that he used different aliases, killed a man in Mexico prior to 2000, pleaded guilty to threatening to kill his teenage daughter when she intervened while he was trying to kill her brother, and threatened to kill his wife whom he had physically abused for years. The prosecutor later described the incident to the court as a domestic violence incident and that defendant's daughter reported to her school that defendant had pulled a knife on his son, she got in the way, and defendant threatened to kill her if she told anyone. The prosecutor argued that the threats and weapon brandishing was conduct involving moral turpitude. On April 14, 2008, defendant was convicted of harassment pursuant to the Revised Code of Washington sections 9A.46.020, subdivisions (1) and (2)(b)(ii), and 10.99.20 based on the incident.
The prosecution's motion also described the incidents charged in counts 3 and 4, which occurred several days before Trujillo's death, when defendant used a gun and threatened to kill Rodrigo. Defendant had also been charged with brandishing a firearm in 2016 after he pointed a gun at someone and threatened to kill the individual for laughing at defendant. The victim of this incident died in 2019 while the warrant was outstanding, but defendant admitted having the confrontation and possessing a weapon when interviewed immediately after his arrest in 2016.
Defendant moved to exclude evidence of the 2016 firearm brandishing incident, the prior homicide, and his prior Washington conviction. He also argued that the prosecutor could not use a certified official record of conviction to prove the conduct and the trial court should exclude use of the conviction pursuant to Evidence Code section 352 as being more prejudicial than probative. However, defense counsel agreed when the trial court summarized his objection to the conviction as both that the conviction did not involve moral turpitude and that it should be excluded as more prejudicial than probative pursuant to Evidence Code section 352.
The trial court excluded evidence of any homicide committed by defendant in Mexico but denied defendant's motion to exclude his 2008 Washington conviction after concluding that defendant had been convicted of a crime involving moral turpitude and that use of the conviction to impeach would not be more prejudicial than probative pursuant to Evidence Code section 352. The trial court held that the prosecutor could question defendant as to whether he had been involved in conduct, limited to the elements of the harassment as defined by the State of Washington, but withheld decision as to whether the conviction document itself would be allowed into evidence.
Prior to defendant's testimony, defense counsel requested that the conviction document be sanitized to reflect only the code section violated and renewed his argument to exclude the conviction due to its age and similarity to the child endangerment charge in count 2. The trial court denied the motion and allowed the prosecutor to impeach defendant by asking him about the conduct underlying the conviction.
Under cross-examination by the prosecutor, defendant testified that he had previously lived in Washington. The prosecutor asked, "Did you get in trouble for threatening to kill one of your family members in Washington?" Defendant replied, "Well, I had problems." The prosecutor then asked, "Did you threaten to kill one of your family members?" Defendant replied, "No, I didn't try to kill them." Defendant denied threatening to kill his daughter and testified, "No, they accused me, but no." The prosecutor then asked, "[D]id you get convicted in Washington of threatening to kill your daughter?" Defendant replied, "Yes," and admitted that he had been convicted of that charge.
B. Applicable Law and Standard of Review
1. Misdemeanor conduct or conviction involving moral turpitude
A witness may be impeached with prior convictions, including misdemeanors, involving "moral turpitude," subject to the trial court's exercise of discretion under Evidence Code section 352 to exclude evidence of prior convictions if the prejudicial impact of the evidence outweighs its probative value. (Clark, supra, 52 Cal.4th at pp. 931-933; People v. Castro (1985) 38 Cal.3d 301, 306 (Castro); see People v. Smith (2007) 40 Cal.4th 483, 512 [" 'Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the court's discretion under Evidence Code section 352.' "].) Because such misconduct involving moral turpitude may suggest a willingness to lie, it is relevant to the witness's credibility. (People v. Anderson (2018) 5 Cal.5th 372, 408.)
We note that the case law is somewhat confusing as to whether evidence of such misconduct may be proven by a record of misdemeanor conviction. Our high court held in People v. Wheeler (1992) 4 Cal.4th 284 that even if the victim's testimony was competent to establish the fact of conviction, "evidence of a misdemeanor conviction, whether documentary or testimonial is inadmissible hearsay when offered to impeach a witness's credibility." (Id. at p. 300.) The court noted that its holding was premised on "current law" and that the Legislature could always create a hearsay exception that would allow a misdemeanor conviction to be used for impeachment in criminal cases. (Id. at p. 300, fn. 14.) Although the Legislature enacted Evidence Code section 452.5 in 1996 and specifically authorized the admission of a certified official record of conviction to prove the commission of a criminal offense or prior conviction (see Evid. Code, § 452.5 subd. (b)(1)), the California Supreme Court still cites Wheeler for this proposition without mention of Evidence Code section 452.5, subdivision (b)(1). (See People v. Chatman (2006) 38 Cal.4th 344, 373 ["Misdemeanor convictions themselves are not admissible for impeachment, although evidence of the underlying conduct may be admissible subject to the court's exercise of discretion."], citing Wheeler, at pp. 297-300; but see People v. Duran (2002) 97 Cal.App.4th 1448, 1460-1461 [Evid. Code, § 452.5, subd. (b)(1) is "the type of hearsay exception contemplated in Wheeler" and unambiguously permits the use of certified official records of conviction to prove not only the fact of a conviction, but also the commission of the underlying offense].)
" 'The voters have expressly removed most statutory restrictions on the admission of relevant credibility evidence in criminal cases ._ Hence, they have decreed at the least that in proper cases, nonfelony conduct involving moral turpitude should be admissible to impeach a criminal witness.'" (Ayala, supra, 23 Cal.4th at p. 273, quoting People v. Wheeler, supra, 4 Cal.4th at p. 295; see Wheeler, at p. 296 [applying rule to misdemeanor conviction involving moral turpitude].) Wheeler recognized that impeachment is not limited to prior misdemeanor convictions involving moral turpitude, but also applies to other conduct. (Ayala, at p. 273, citing Wheeler, at pp. 296-297 &fn. 7.)" 'Whether the trial court admits evidence of past misconduct should be determined solely on the basis that that conduct evinces moral turpitude. The label is not important [i.e., what type of statutorily defined offense, if any, the conduct constitutes]- the conduct is.'" (Ayala, at p. 273, quoting with approval People v. Lepolo (1997) 55 Cal.App.4th 85, 89-90 (Lepolo).)
Moral turpitude has been defined variously as a" 'general readiness to do evil'" (Castro, supra, 38 Cal.3d at p. 314), "an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man" (In re Craig (1938) 12 Cal.2d 93, 97), or "conduct involving violence, menace, or threat" (People v. Williams (1999) 72 Cal.App.4th 1460, 1464). Crimes of moral turpitude involve crimes in which dishonesty is an element (i.e., fraud, perjury, etc.) and crimes that indicate a" 'general readiness to do evil,'" from which a readiness to testify falsely may be inferred. (Castro, at pp. 314-316 & fn. 10.) Crimes in the first category tend to be more probative as impeachment than those in the second. (Id. at p. 315.)
"Whether a conviction involves [moral] turpitude is a question of law; its answer depends on the elements of each crime in the abstract, rather than the underlying facts of the earlier prosecutions." (People v. Collins (1986) 42 Cal.3d 378, 390.) Collins noted that although most decisions regarding the admission of prior felonies for impeachment are within the trial court's broad discretion, if the crime does not "necessarily" involve moral turpitude, it is "inadmissible as a matter of law." (Id. at p. 389.) Because it is a question of law, the limited issue whether the court correctly determined that defendant's prior misdemeanor was a crime of moral turpitude must be reviewed de novo. (See Turner v. Association of American Medical Colleges (2008) 167 Cal.App.4th 1401, 1407 [issues of law reviewed de novo]; People v. Gray (2007) 158 Cal.App.4th 635, 640 [judge, not jury, decides whether moral turpitude involved].)
In determining whether a conviction involves moral turpitude, the trial court looks to the statutory definition of the particular crime to determine whether "the least adjudicated elements of the conviction necessarily involve moral turpitude" (Castro, supra, 38 Cal.3d at p. 317), that is, whether the elements of the crime, without reference to the specific circumstances of the conviction at issue "necessarily evince any character trait which can reasonably be characterized as 'immoral'" (id. at p. 317, fn. 13). However, in determining whether prior conduct involves moral turpitude, the court solely looks to the conduct and not what type of statutorily defined offense the conduct constitutes. (Ayala, supra, 23 Cal.4th at p. 273, Lepolo, supra, 55 Cal.App.4th at pp. 8990.)
The trial court has broad discretion under Evidence Code section 352 to exclude evidence of prior misconduct involving moral turpitude where the probative value of the evidence is substantially outweighed by its potential for prejudice, confusion, or undue consumption of time. (People v. Edwards (2013) 57 Cal.4th 658, 713 &fn. 18; Clark, supra, 52 Cal.4th at pp. 931-933.) Because the court's discretion under Evidence Code section 352 "is broad, 'a reviewing court ordinarily will uphold the trial court's exercise of discretion.'" (People v. Anderson, supra, 5 Cal.5th at p. 407.) We will not disturb the ruling unless the trial court's "decision is so irrational or arbitrary that no reasonable person could agree with it" (People v. Carmony (2004) 33 Cal.4th 367, 377) or the trial court" 'exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice'" (People v. Ledesma (2006) 39 Cal.4th 641, 705).
In exercising its discretion under Evidence Code section 352 when determining whether to admit a prior conviction for impeachment purposes, the trial court should consider (1) whether the prior conviction reflects adversely on the witness's honesty or veracity, (2) the nearness or remoteness in time of a prior conviction, (3) whether the prior conviction is for the same or substantially similar conduct to the charged offense, and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions. (People v. Edwards, supra, 57 Cal.4th at p. 722; Clark, supra, 52 Cal.4th at p. 931.) The exclusion of evidence relevant to a defendant's credibility may unfairly "clothe[ ] [the witness] in a '" 'false aura of veracity.'" '" (Clark, at p. 932.)
C. Analysis
1. Harassment under the Revised Code of Washington section 9A.46.020
In 2008, Revised Code of Washington section 9A.46.020 provided in pertinent part:
"(1) A person is guilty of harassment if:
"(a) Without lawful authority, the person knowingly threatens:
"(i) To cause bodily injury immediately or in the future to the person threatened or to any other person; or
"(ii) To cause physical damage to the property of a person other than the actor; or "(iii) To subject the person threatened or any other person to physical confinement or restraint; or
"(iv) Maliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety; and
"(b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out....
"(2)(a) Except as provided in (b) of this subsection, a person who harasses another is guilty of a gross misdemeanor.
"(b) A person who harasses another is guilty of a class C felony if either of the following applies: ...; or (ii) the person harasses another person under subsection (1)(a)(i) of this section by threatening to kill the person threatened or any other person." (Wn. Rev. Code, § 9A.46.020 (2008).)
A jury in Washington is instructed that it must agree that "elements (2), (3), and (4), and any of the alternative elements [(1)(a),] [(1)(b),] [(1)(c),] [or] [(1)(d)], have been proved beyond a reasonable doubt, . . . to return a verdict of guilty," but that "the jury need not be unanimous as to which of alternatives [(1)(a),] [(1)(b),] [(1)(c),] or [(1)(d)] has been proved beyond a reasonable doubt, as long as each juror finds that at least one alternative has been proved beyond a reasonable doubt." (11 Wn. Prac., Pattern Jury Instr. Crim. WPIC 36.07 (5th ed.).) "In the case of a misdemeanor violation of the statute, 'the threat' allegedly made is one of the four threats listed in subsection (1)(a), and the statute says that the State [of Washington] must prove that the person threatened was placed in reasonable fear of 'the threat'-the actual threat made. Thus, to obtain a misdemeanor conviction based upon one of these threats, the State [of Washington] must prove the threat made and the threat feared are the same." (State v. C.G. (2003) 150 Wn.2d 604, 609 ["Whatever the threat, whether listed in subsection (1)(a) or a threat to kill as stated in subsection (2)(b), the State [of Washington] must prove that the victim was placed in reasonable fear that the same threat, i.e., 'the' threat, would be carried out."].)
We compare these elements of Washington's harassment statute to the definition of moral turpitude to determine whether this offense involves moral turpitude. (See Castro, supra, 38 Cal.3d at p. 317 ["a witness' prior conviction should only be admissible for impeachment if the least adjudicated elements of the conviction necessarily involve moral turpitude"].) Mindful that moral turpitude involves a" 'general readiness to do evil'" (id. at p. 314), "an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man" (In re Craig, supra, 12 Cal.2d at p. 97), or "conduct involving violence, menace, or threat" (People v. Williams, supra, 72 Cal.App.4th at p. 1464), we conclude that an individual who knowingly threatens to cause bodily injury, physical damage to property, physical confinement or restraint, or to maliciously do any other act which is intended to cause substantial harm has engaged in conduct that involves "violence, menace, or threat" and are acts" 'of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty'" (In re Grant (2014) 58 Cal.4th 469, 476).
We have found no case that has addressed a statute like section 9A.46.020 of the Revised Code of Washington to determine whether it is a crime of moral turpitude. The People argue that the statute is similar enough to section 422, which has been held to be a crime of moral turpitude in People v. Thornton (1992) 3 Cal.App.4th 419 (Thornton). We find this comparison persuasive. Section 422 requires each of the following elements: (1) the person willfully threatened to either kill or seriously injure another person; (2) the person intended that the person threatened understand the statement to be a threat; (3) the text of the statement and the surrounding circumstances led the person threatened to believe that the person would soon execute that threat; and (4) the person threatened was placed in actual and reasonable fear for the safety of either themselves or their family. (Thornton, at p. 423.)
Thornton emphasized that section 422 "does not punish casual statements which a reasonable person would ignore, nor does it proscribe threats which are intentionally uttered but never intended to be communicated to the victims." (Thornton, supra, 3 Cal.App.4th at pp. 423-424.) "While the statute does not require that the violator intend to cause death or serious bodily injury to the victim, not all serious injuries are suffered to the body. The knowing infliction of mental terror is equally deserving of moral condemnation." (Id. at p. 424.)
A person violating section 422 must intend that the victim receive and understand the threat, and the threat must be such that would cause a reasonable person to fear for the safety of themselves or their family. (Thornton, supra, 3 Cal.App.4th at p. 424.) Section 9A.46.020 of the Revised Code of Washington criminalizes more conduct than section 422 but we conclude that the additional conduct also involves moral turpitude and "evince[s] [a] character trait which can reasonably be characterized as 'immoral.'" (Castro, supra, 38 Cal.3d at p. 317, fn. 13.) Washington's harassment statute is intended to prevent serious, personal harassment and indicates "the primary focus in criminalizing threats is on the harm caused-the fear engendered in the victim." State v. C.G. (2003) 150 Wn.2d at p. 610.) Although one placed in fear of being killed is, on a relative and general scale, harmed more than one who is threatened with bodily injury, Washington's harassment statute requires that defendant knowingly threaten another individual and place the person threatened in reasonable fear that the threat will be carried out. Conduct intended to cause fear in another individual displays a character trait that can be described as immoral. (See, e.g., People v. Campbell (1994) 23 Cal.App.4th 1488, 1493 [vandalism involves moral turpitude because a defendant acts" 'maliciously,'" which" 'import[s] a wish to vex, annoy, or injure another person, or an intent to do a wrongful act' "]; People v. Zataray (1985) 173 Cal.App.3d 390, 399-400 [the gravamen of simple kidnapping "is some sort of compulsion causing the victim to feel reasonable apprehension or fear" and "involves 'bad character' and 'readiness to do evil' "]; People v. Miles (1985) 172 Cal.App.3d 474, 481-482 [" 'willfully and maliciously'" burning property "necessarily involve[d] an intent 'to do evil' "].)
Defendant argues that Washington's harassment statute can only be used to impeach if it matches the elements of section 422. Our Supreme Court adopted the least adjudicated elements test from People v. Crowson (1983) 33 Cal.3d 623, overruled on other grounds in People v. Myers (1993) 5 Cal.4th 1193, 1195, to determine the presence of moral turpitude for purposes of using a conviction for impeachment. (Castro, supra, 38 Cal.3d at pp. 316-317.) In Crowson, the Supreme Court was interpreting section 667.5, which defined a prior conviction to include a conviction from a different jurisdiction where that conviction includes all the elements of the felony as defined under California law. (Crowson, at p. 633.) However, in the context of determining whether a conviction can be used for impeachment, the Supreme Court adopted the test, but the comparison does not involve a comparison between the foreign and California crime, but rather, an analysis of whether "the least adjudicated elements of the conviction necessarily involve[d] moral turpitude" (Castro, at p. 317). Defendant fails to provide any case authority to support his argument that a foreign conviction can be used for impeachment purposes only if it had elements comparable to a California conviction.
We note, however, that our Supreme Court has used comparisons between a foreign and California statute for the analysis of whether the conviction involves moral turpitude. In People v. Lang (1989) 49 Cal.3d 991, abrogated on other grounds in People v. Diaz (2015) 60 Cal.4th 1176, 1190, the court analyzed whether an Oregon escape conviction was a crime of moral turpitude for purposes of impeachment. In so doing, the court first approved People v. Waldecker (1987) 195 Cal.App.3d 1152 where the court concluded that the crime of escape without force, as defined in subdivision (b) of section 4532 was a crime of moral turpitude. (Lang, at p. 1010.) The court concluded Oregon's statute was comparable to section 4532, subdivision (b) and applied Waldecker to hold that the Oregon statute involved moral turpitude. (Id. at pp. 10101011.) Because the foreign statute was comparable to the California statute, the Supreme Court relied upon cases that held comparable California crimes to involve moral turpitude as authority for finding the foreign conviction also involved moral turpitude. However, it did not suggest that the foreign conviction must match the elements of the comparable California statute to be admissible for impeachment.
Additionally, even if defendant's harassment conviction does not satisfy the least adjudicated elements test for purposes of admitting his misdemeanor conviction, we find no prejudice because the conduct underlying the prior offense was admissible, nonetheless and the prosecutor asked about defendant's conduct in threatening to kill his daughter. Defendant admitted that he was convicted of threatening to kill his daughter. When offered for impeachment, subject to Evidence Code section 352, there is no prohibition on admission of the circumstances underlying a prior offense. (People v. Dalton (2019) 7 Cal.5th 166, 214 ["Evidence of circumstances underlying a conviction is admissible to impeach credibility if the proponent demonstrates that the evidence has 'any tendency in reason' to disprove credibility."]; see People v. Harris (2005) 37 Cal.4th 310, 337 ["Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the court's discretion under Evidence Code section 352."].)
We are mindful that"' "a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." '" (People v. Zapien (1993) 4 Cal.4th 929, 976; see also People v. Letner and Tobin (2010) 50 Cal.4th 99, 145.)
Exhibiting a knife while threatening to kill one's teenage daughter will always risk causing mental terror to the victim because a knife is a menacing weapon when brandished during anger and has an immediately apparent and well-known capacity to cause severe injury or kill. (See Thornton, supra, 3 Cal.App.4th at p. 424 ["[N]ot all serious injuries are suffered to the body. The knowing infliction of mental terror is equally deserving of moral condemnation."].)" 'Whether the trial court admits evidence of past misconduct should be determined solely on the basis that that conduct evinces moral turpitude. The label is not important [i.e., what type of statutorily defined offense, if any, the conduct constitutes]-the conduct is.'" (Ayala, supra, 23 Cal.4th at p. 273, quoting with approval Lepolo, supra, 55 Cal.App.4th at pp. 89-90.)
We have no trouble concluding that threatening to kill defendant's teenage daughter to prevent her from reporting his knife attack on his son is conduct involving moral turpitude. Evidence that defendant threatened his daughter to prevent her report of his criminal conduct "suggests he is the type of person who would harm others and subvert the court's truth-finding process for selfish reasons. Both traits are indicative of a morally lax character from which the jury could reasonably infer a readiness to lie." (People v. Mickle (1991) 54 Cal.3d 140, 168 [upholding use of conduct involving threats to witnesses as permissible impeachment].)
In summary, we have no doubt that making threats to kill and brandishing a knife at one's child violates generally accepted standards of moral behavior. Such conduct, regardless of defendant's conviction for harassment pursuant to Washington law, was admissible to impeach defendant subject to the court's analysis under Evidence Code section 352.
Nor do we find the trial court abused its discretion under Evidence Code section 352, which authorizes the trial court to exclude evidence "if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." As stated, in making its discretionary decision to admit or exclude a prior conviction for impeachment purposes, the trial court is guided by the factors set forth in People v. Beagle (1972) 6 Cal.3d 441, disapproved on other grounds in People v. Diaz, supra, 60 Cal.4th at p. 1190. (People v. Clair (1992) 2 Cal.4th 629, 654.)
The first, third, and fourth factors clearly weigh in favor of admitting the evidence as we have found that threatening to kill one's daughter to prevent reporting a crime is conduct involving moral turpitude and therefore reflects on defendant's veracity (see Castro, supra, 38 Cal.3d at p. 317), the prior misconduct was not similar to the charged offenses, and the trial court's ruling did not dissuade defendant from testifying. Defendant, however, argues that the misconduct occurred approximately 11 years before the charged offenses. We cannot say as a matter of law that 11 years is too remote where other factors weigh in favor of admission. The prosecutor described several incidents of misconduct that show defendant did not lead a "legally blameless life" in the 11 years between his 2008 conviction and the current incident. (People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926; accord, People v Carpenter (1999) 21 Cal.4th 1016, 1055-1056 [upholding admission of two 17-year-old convictions]; People v. Benton (1979) 100 Cal.App.3d 92, 97 [upholding admission of a conviction at least 11 years old].) These incidents included defendant's statement that he killed someone in Mexico, his 2016 firearm brandishing incident, and the 2019 firearm brandishing incident that was the subject of dismissed charges in counts 3 and 4.
While defendant was charged with child endangerment, it arose from firing a gun at Trujillo while his son was in close enough proximity to be injured.
"[A] defendant who elects to testify in his own behalf is not entitled to a false aura of veracity." (People v. Beardslee (1991) 53 Cal.3d 68, 95.)" '[B]y taking the stand, defendant put his own credibility in issue and was subject to impeachment in the same manner as any other witness.'" (Doolin, supra, 45 Cal.4th at p. 438.) There is no dispute that threatening to kill his daughter and preventing her from reporting a crime to the police involved defendant's moral turpitude and revealed a general readiness to do evil or a moral laxity of some kind. Defendant's past conduct casted doubt on his credibility, including his testimony suggesting that he killed Trujillo in self-defense.
Additional considerations apply when the proffered impeachment evidence is misconduct other than a prior conviction. (Clark, supra, 52 Cal.4th at pp. 931-932.) Our Supreme Court has advised that" 'courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.'" (Id. at p. 932.) Defendant does not contend that the evidence took up undue time or caused confusion as it involved only a few questions directed at defendant during cross-examination.
In sum, this is not the rare case in which a trial court's exercise of discretion regarding impeachment evidence exceeds the bounds of reason and warrants reversal. (See Clark, supra, 52 Cal.4th at p. 932.)
VII. The trial court did not err in denying defendant's motion to preclude the prosecution or witnesses from referring to Trujillo as "the victim."
A. Background
Defendant filed a motion in limine to exclude use of the term "victim" when referring to Trujillo during the trial. During the hearing on the motion, the trial court indicated that the court's practice would be to refer to Trujillo as the "decedent" until there was a conviction. Defense counsel further requested that the court order the prosecution and witnesses not to use the term "victim" when referring to Trujillo. The court denied defense counsel's request, concluding that the prosecution could use terms that reflect its position and that standard instructions regarding the burden of proof and presumption of innocence would ensure that the jury would not conclude that Trujillo was murdered by any such reference.
Defendant now argues that the trial court erred in permitting the prosecution and witnesses to refer to Trujillo as "the victim" because it allowed the jury to assume defendant murdered Trujillo. We reject defendant's argument.
B. Analysis
"The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment. [Citation.] The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice." (Estelle v. Williams (1976) 425 U.S. 501, 503.) "To implement the presumption, courts must be alert to factors that may undermine the fairness of the factfinding process. In the administration of criminal justice, courts must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt." (Ibid.)
Defendant argues that the trial court erred in denying his motion to prevent use of the term "victim" but does not articulate any particular legal theory except to argue that he was prejudiced. His argument relies on People v. Williams (1860) 17 Cal. 142 (Williams), a case in which Williams was charged with murder, claimed self-defense, and was convicted of manslaughter (id. at pp. 146-147). On appeal, Williams argued that the trial court committed error when it referred to the decedent as" 'a victim'" when instructing the jury because it was calculated to prejudice Williams before the jury as intimating the opinion of the Court. (Id. at p. 146.) The Williams court cautioned against use of that word: "The word victim, in the connection in which it appears, is an unguarded expression, calculated, though doubtless unintentionally, to create prejudice against the accused." (Id. at p. 147.) In the court's view, it was improper for the trial court to have used the word "victim" when instructing the jury because "[i]t seems to assume that the deceased was wrongfully killed, when the very issue was as to the character of the killing," and "[t]he Court should not, directly or indirectly, assume the guilt of the accused, nor employ equivocal phrases which may leave such an impression." (Ibid.) However, the California Supreme Court reversed Williams's conviction on another ground. (Id. at p. 148.)
Our Supreme Court, however, rejected the argument that a prosecutor commits misconduct by use of the term "victim" in People v. Wolfe (1954) 42 Cal.2d 663 (Wolfe). After being convicted of murder, Wolfe argued that the prosecutor committed misconduct when the prosecutor asked Wolfe's codefendant, Johansen, what happened to Johansen's knife, and Johansen replied that he left it in the victim's back. The prosecutor asked whether Johansen left the knife in the victim's back, and Johansen responded affirmatively. Relying on Williams, supra, 17 Cal. 142, Wolfe argued that the prosecutor's language "assume[d] the guilt of the defendant." (Wolfe, at p. 666.) The court disagreed and distinguished Williams because the prosecutor's expression "did not come from the judge, but from the prosecuting attorney without objection by defense counsel or motion to strike being made, and the jury was instructed that it was the sole judge of the value and effect of the evidence; that it could not convict a defendant upon mere suspicion; that the prosecution was 'bound to establish the guilt of a defendant beyond a reasonable doubt, and unless the prosecution does so, then it is your duty to find the defendant not guilty.'" (Ibid.)
Under the facts of this case, there was no reversible error. Wolfe's distinction between a prosecutor's use of the term "victim" and a trial court's use of the term is material. As in Wolfe, the prosecutor here was an advocate whose purpose was to prove that Trujillo was the "victim" of a crime. The trial court is a neutral arbiter whose role it is to ensure the proceedings are conducted in a fair and orderly fashion. While it is natural for the prosecutor to argue Trujillo was the victim, it is unnatural for the court to do so because of the deference jurors give to the court's opinions, especially in a closely balanced case. Pursuant to Williams, supra, 17 Cal. 142 and Wolfe, supra, 42 Cal.2d 663, it was not error for the prosecutor to refer to Trujillo as the victim.
Additionally, while neither Wolfe, supra, 42 Cal.2d 663 nor Williams, supra, 17 Cal. 142 involved witnesses who used the term "victim," Wolfe limited Williams's rationale to use of the term "victim" by the court, and we conclude that Wolfe similarly renders Williams inapplicable to use of the term "victim" by witnesses.
Both before opening statements and again before closing arguments, the trial court instructed the jury not to reach a conclusion as to the verdict or any issue until deliberations (CALCRIM Nos. 101, 124); it must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial (CALCRIM Nos. 103, 200, 220); and it must decide what the facts are in the case (CALCRIM Nos. 104, 200). The trial court also instructed that a defendant is presumed to be innocent and this presumption required the People to prove defendant guilty beyond a reasonable doubt (CALCRIM Nos. 103, 220). Further, the court also told the jury that nothing "the attorneys say is evidence," that in their opening and closing arguments, the attorneys' remarks are not evidence, and their questions are not evidence (CALCRIM Nos. 104, 222). The trial court also instructed that the jury "alone must judge the credibility or the believability of the witnesses" (CALCRIM Nos. 105, 226). Finally, the jury was instructed on the general principles of homicide that required it to determine whether the killing was unlawful or justified and lawful (CALCRIM No. 500), first and second degree murder (CALCRIM Nos. 520, 521), provocation (CALCRIM Nos. 522, 570), justifiable homicide (CALCRIM No. 505), and voluntary manslaughter (imperfect self-defense) (CALCRIM No. 571). We presume the jury followed the court's instructions. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 447; People v. Prince (2007) 40 Cal.4th 1179, 1295.)
We understand the argument that calling Trujillo the "victim" implied that the prosecution may have decided that Trujillo had been unlawfully killed as opposed to killed in self-defense. But the term "victim" is a" 'malleable term' the meaning of which depends on the context in which it is used." (Santos v. Brown (2015) 238 Cal.App.4th 398, 416.) We" 'credit jurors with intelligence and common sense [citation] and do not assume that these virtues will abandon them when presented with a court's instructions.'" (People v. Sanchez (2013) 221 Cal.App.4th 1012, 1024.)
In light of the court's instructions, the jurors would have understood that any reference to the deceased Trujillo as "the victim" meant "the person who was killed" and not "defendant is guilty." Jurors would have understood it is common to speak of a "homicide victim" even though the homicide may not be criminal. We conclude that that the jury would not have ignored all of these instructions and failed to consider whether defendant acted in self-defense, merely because the prosecutor and some witnesses repeatedly referred to Trujillo as "the victim."
VIII. The trial court did not abuse its discretion in declining to dismiss defendant's firearm enhancement, but defendant is entitled to be resentenced in light of the Supreme Court's decision in People v. Tirado (2022) 12 Cal.5th 688 (Tirado).
Defendant contends this case must be remanded for the trial court to consider whether it would strike the firearm enhancement attached to his sentence based on the enactment of Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620). The People argue forfeiture and contend the existing record fails to show the sentencing court was unaware of its discretionary authority to strike the challenged enhancement. We agree that defendant has failed to demonstrate that the trial court was unaware of its sentencing discretion to dismiss or strike the firearm enhancement pursuant to section 1385, however, we remand for the trial court to consider whether to substitute a lesser firearm enhancement in light of Tirado, supra, 12 Cal.5th 688, decided after defendant was sentenced.
A. Background
Effective January 1, 2018, Senate Bill 620 amended section 12022.53, subdivision (h) to remove the prohibition on striking a section 12022.53 enhancement and allow the trial court to dismiss or strike it in the interest of justice pursuant to section 1385. (Stats. 2017, ch. 682, § 2.) Defendant was sentenced on November 18, 2021, approximately four years after Senate Bill 620 took effect. Defendant did not request that the trial court strike the firearm enhancement, and the trial court imposed it without discussion.
B. Applicable Law and Standard of Review
"We review the trial court's exercise of discretion at sentencing for abuse." (People v. Shenouda (2015) 240 Cal.App.4th 358, 368; see People v. Carmony, supra, 33 Cal.4th at p. 375.) Defendant is entitled to the court's informed discretion on any sentencing decision. (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) A court unaware of the scope of its discretionary powers" 'can no more exercise that "informed discretion" than one whose [decision] is or may have been based on misinformation regarding a material aspect of a defendant's record.'" (Ibid.) Under these circumstances, the proper remedy is to remand "unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (Ibid.)
"Absent evidence to the contrary, [appellate courts] presume that the trial court knew the law and followed it." (People v. Ramirez (2021) 10 Cal.5th 983, 1042; see People v. Stowell (2003) 31 Cal.4th 1107, 1114; People v. Martinez (2017) 10 Cal.App.5th 686, 728.) Moreover, appellate courts "presume that a judgment or order of the trial court is correct," and"' "[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown." '" (People v. Giordano (2007) 42 Cal.4th 644, 666; see Martinez, at p. 728.) "Thus, where a statement of reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order." (Stowell, at p. 1114; see In re Julian R. (2009) 47 Cal.4th 487, 499.)
C. Analysis
1. Remand is not warranted under Senate Bill 620
a) Forfeiture
" 'A party in a criminal case may not, on appeal, raise "claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices" if the party did not object to the sentence at trial. [Citation.] The rule applies to "cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons ...." '" (People v. Scott (2015) 61 Cal.4th 363, 406.) Only "a narrow class of sentencing issues ... are reviewable in the absence of a timely objection," such as when a court fails to exercise its discretion. (People v. Leon (2016) 243 Cal.App.4th 1003, 1023.) Therefore, defendant has not forfeited his argument that the trial court was unaware of its discretion to dismiss the firearm enhancement.
b) Defendant has failed to demonstrate that the trial court was unaware of the scope of its discretion to dismiss or strike the firearm enhancement.
A trial court cannot exercise its discretion if it is "unaware of the scope of its discretionary powers." (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) However, we never presume error, so defendant must "affirmatively demonstrate that the trial court misunderstood its sentencing discretion." (People v. Davis (1996) 50 Cal.App.4th 168, 172.) Here, defendant did not object at sentencing and attempts to avoid forfeiture by framing his argument as the trial court being unaware of its discretion. We disagree.
We will not presume that the trial court was unaware of its discretion to dismiss or strike the firearm enhancement simply because no party raised the issue and the court never discussed it. Defendant was sentenced on November 18, 2021, approximately four years after Senate Bill 620's amendments to section 12022.53, subdivision (h) went into effect on January 1, 2018. Section 1385 contains no express requirement that a trial court articulate any findings or rulings unless it strikes or dismisses an enhancement. (See § 1385, subd. (a); In re Large (2007) 41 Cal.4th 538, 550 [noting the express findings requirement of § 1385, subd. (a) only applies when a strike is dismissed].) Therefore, in the face of a silent record like this one, and in the absence of an affirmative duty to make express findings, we presume that the court knew about section 12022.53, subdivision (h). (People v. Ramirez, supra, 10 Cal.5th at p. 1042; In re Julian R., supra, 47 Cal.4th at pp. 498-499; People v. Giordano, supra, 42 Cal.4th at p. 666; People v. Stowell, supra, 31 Cal.4th at p. 1114; Denham v. Superior Court (1970) 2 Cal.3d 557, 564; People v. Martinez, supra, 10 Cal.App.5th at p. 728.)
Defendant's authorities to the contrary are inapposite. In People v. McDaniels (2018) 22 Cal.App.5th 420, the defendant was sentenced before Senate Bill 620 went into effect and while the trial court did not have discretion to dismiss or strike a firearm enhancement. (McDaniels, at p. 425.) McDaniels relied upon People v. Gutierrez (1996) 48 Cal.App.4th 1894, to hold that a trial court must reconsider sentencing after a change in the court's sentencing discretion unless the record clearly shows that the sentencing court would not have exercised discretion to strike or dismiss the enhancement. (McDaniels, at p. 425.) Here, however, Senate Bill 620 had already amended section 12022.53 to permit the trial court to exercise its sentencing discretion to strike or dismiss defendant's firearm enhancement.
Defendant has failed to affirmatively demonstrate that the trial court was unaware of or misunderstood the scope of its sentencing discretion. Therefore, defendant is not entitled to resentencing on this basis.
2. Remand is warranted based on the Supreme Court's decision in Tirado
Section 12022.53 establishes a three-tiered system for firearm enhancements: subdivision (b) provides for a 10-year enhancement for the personal use of a firearm; subdivision (c) provides for a 20-year enhancement for the personal and intentional discharge of a firearm; and subdivision (d) provides for a 25-year-to-life enhancement for the personal and intentional discharge of a firearm causing great bodily injury or death. (Tirado, supra, 12 Cal.5th at p. 695.) After section 12022.53, subdivision (h) was amended by Senate Bill 620 to provide trial courts discretion to strike or dismiss firearm enhancements, the Courts of Appeal were split on whether trial courts had the discretion to strike a firearm enhancement found true by the jury and impose a lesser, uncharged enhancement. (Tirado, at p. 696.)
Our Supreme Court resolved this split in January 2022, two months after defendant was sentenced, and held that courts have discretion to impose an uncharged, lesser section 12022.53 enhancement where the facts supporting that enhancement were alleged and found true by the jury. (Tirado, supra, 12 Cal.5th at pp. 697, 699-700.) Although defendant failed to object when sentence was imposed on the firearm enhancement, we nevertheless conclude that defendant has not forfeited this claim because the overwhelming majority of appellate courts that had considered the issue prior to our Supreme Court's decision in Tirado concluded that courts lacked authority to substitute a lesser enhancement. (See id. at p. 696; People v. Smith (2003) 31 Cal.4th 1207, 1214-1215.)
We conclude that defendant's sentence must be vacated and the matter remanded for resentencing. At the sentencing hearing, the trial court did not make any statements indicating that it was aware of its discretion to strike the firearm enhancement found true by the jury and impose a lesser, uncharged firearm enhancement instead, but nor did it make any statements foreclosing the possibility that, had the court been aware of its discretion to substitute a lesser firearm enhancement, it would not have done so. Accordingly, because the record does not clearly indicate the trial court would not have imposed a lesser firearm enhancement, remand is appropriate. (People v. Gutierrez, supra, 58 Cal.4th at p. 1391; see People v. Salazar (2023) 15 Cal.5th 416, 431 ["We emphasize that principle again: unless there is a clear indication from the sentencing court that it would be idle to do so, remand for resentencing is required. When the applicable law governing the defendant's sentence has substantively changed after sentencing, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing. Mere reliance on the length of the original sentence and attendant decisions, such as imposing consecutive sentences, imposing middle or upper term sentences, or declining to strike enhancements, is not sufficient to provide a clear indication of what a sentencing court might do on remand if it had been fully aware of the scope of its discretionary powers."].)
IX. The trial court did not err in failing to sua sponte instruct the jury on defense of property.
A. Background
At defendant's request, the trial court instructed the jury with CALCRIM No. 505 relating to self-defense and imperfect self-defense, as follows:
"The Defendant is not guilty of murder or manslaughter if he was justified in killing someone in self-defense. The Defendant acted in lawful self-defense if, one, the Defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury; two, the Defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; and, three, the Defendant used no more force than was reasonably necessary to defend against that danger. Belief in future harm is not sufficient no matter how great or how likely the harm is believed to be. The Defendant must have believed there was imminent danger of death or great bodily injury to himself. Defendant's belief must have been reasonable and he must have acted only because of that belief. The Defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in a same situation. If the Defendant used more force than was reasonable, the killing was not justified. When deciding whether Defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the Defendant and consider what a reasonable person in a similar situation with knowledge would have believed. If the Defendant's beliefs were reasonable, the danger does not need to have actually existed. The Defendant's belief that he was threatened may be reasonable even if he relied on information that was not true. However, the Defendant must actually and reasonably believe-strike that. However, the Defendant must actually and reasonabl[y] have believed that the information was true. If you find that Augustin Trujillo threatened or harmed the Defendant in the past, you may consider that information in deciding whether the Defendant's conduct and beliefs were reasonable. A Defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and if reasonably necessary, to pursue an assailant until the danger, death or great bodily injury has passed. This is so even if safety could have been achieved by retreating. Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measures against that person. Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. The People have the burden of proving beyond a reasonable doubt that the killing was not justified. If the People have not met this burden, you must find the Defendant not guilty of murder and manslaughter."
Although defendant did not request it, he now argues that the trial court erred in not instructing the jury with CALCRIM No. 506 (Justifiable Homicide: Defending Against Harm to Person Within Home or Property), which provides in pertinent part, as follows:
"The defendant is not guilty of (murder ..) if (he ..) (killed ..) to defend (himself .) [or any other person] in the defendant's home. Such (a .) . killing is justified, and therefore not unlawful, if:
"1. The defendant reasonably believed that (he .) was defending a home against ___ <insert name of decedent>, who (intended to or tried to commit ___ <insert forcible and atrocious crime>/ [or] violently[[,] [or] riotously[,]/ [or] tumultuously] tried to enter that home intending to commit an act of violence against someone inside);
"2. The defendant reasonably believed that the danger was imminent;
"3. The defendant reasonably believed that the use of deadly force was necessary to defend against the danger;
"AND
"4. The defendant used no ore force than was reasonably necessary to defend against the danger." (CALCRIM No. 506.)
CALCRIM No. 506 includes four additional paragraphs that are identical to four paragraphs of CALCRIM No. 505. (Compare CALCRIM No. 505 with CALCRIM No. 506.)
B. Applicable Law and Standard of Review
"' "It is settled that in criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence"' and' "necessary for the jury's understanding of the case."' [Citations.] It is also well settled that this duty to instruct extends to defenses 'if it appears ... the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.'" (Brooks, supra, 3 Cal.5th at p. 73.) "Substantial evidence supporting sua sponte instruction on a particular defense is evidence that is 'sufficient to "deserve consideration by the jury, i.e., 'evidence from which a jury composed of reasonable [persons] could have concluded'"' that the particular facts underlying the instruction did exist." (Id. at p. 75.)
"For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is 'imperfect self-defense,' i.e., 'the defendant is deemed to have acted without malice and cannot be convicted of murder,' but can be convicted of manslaughter. [Citation.] To constitute 'perfect self-defense,' i.e., to exonerate the person completely, the belief must also be objectively reasonable. [Citations.] As the Legislature has stated, '[T]he circumstances must be sufficient to excite the fears of a reasonable person ._" [Citations.] Moreover, for either perfect or imperfect self- defense, the fear must be of imminent harm. 'Fear of future harm-no matter how great the fear and no matter how great the likelihood of the harm-will not suffice. The defendant's fear must be of imminent danger to life or great bodily injury.'" (Humphrey, supra, 13 Cal.4th at p. 1082, fn. omitted, fourth bracketed insertion in original.)
Section 197 provides: "Homicide is ... justifiable ... [¶] (1) When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person. [¶] (2) When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein." (Italics added.) While subdivision 1 of section 197 appears to permit killing to prevent any "felony," our Supreme Court, in People v. Ceballos (1974) 12 Cal.3d 470, recognized that such felony must also create a fear of great bodily harm to justify taking someone's life. (Id. at pp. 477-478.) Similarly, a "felony" committed by "violence and surprise," as provided by subdivision 2 of section 197, justifies killing or the use of deadly force to prevent it only if the offense is a forcible and atrocious crime, such as murder, mayhem, rape, robbery, but burglary only if the character and manner of the burglary threatened, or was reasonably believed to threaten, death or serious bodily harm. (Ceballos, at pp. 478-479.)
"Defense of habitation [as provided by section 197, subdivision 2] applies where the defendant uses reasonable force to exclude someone he or she reasonably believes is trespassing in, or about to trespass in, his or her home. However, the intentional use of deadly force merely to protect property is never reasonable. Accordingly, a homicide involving the intentional use of deadly force can never be justified by defense of habitation alone. The defendant must also show either self-defense or defense of others, i.e., that he or she reasonably believed the intruder intended to kill or inflict serious injury on someone in the home." (People v. Curtis (1994) 30 Cal.App.4th 1337, 1360 (Curtis); see People v. Ceballos, supra, 12 Cal.3d at p. 479 [deadly force may not be used against a burglar who does not threaten death or serious bodily harm].)
C. Analysis
1. The trial court did not err in failing to instruct with CALCRIM No. 506 because there was no substantial evidence that Trujillo was attempting to trespass onto the property where defendant lived
We agree with the People that, in this case, the trial court was not required to instruct with CALCRIM No. 506 because the particular facts that would support the instruction did not exist. (See Brooks, supra, 3 Cal.5th at p. 75.) Defense of habitation applies where the defendant uses reasonable force to exclude someone he or she reasonably believes is trespassing in, or about to trespass in, his or her home. (Curtis, supra, 30 Cal.App.4th at p. 1360.) However, in the instant case, there was no evidence that Trujillo was trespassing or attempting to trespass. The evidence showed that Trujillo was driving his truck and horse trailer, accompanied by his son, and stopped on a dirt road adjacent to the ranch where defendant lived and tended animals. According to defendant's testimony, he was walking to his own truck to move it onto the property when he saw Trujillo's truck and approached it to greet Trujillo and see if Trujillo was there to share a drink. Defendant testified that he spoke with Trujillo while Trujillo was seated in the truck and again for a few minutes while Trujillo was standing outside his truck. According to defendant, Trujillo was standing just outside the truck when defendant shot him.
Additionally, aerial photographs of the location (People's exhibits Nos. 1, 2) show a large dirt lot subdivided into several small lots. There appear to be two separate ranches located in the middle of the lot, comprised of residences or trailer homes, sheds, and animal pens, surrounded by dirt roads accessible to all the various lots. Trujillo's white truck and horse trailer is parked on a dirt road, adjacent to the middle ranch and near the animal corrals. A fence separates the property from the road. A black SUV and a blue truck are parked on the side of the road under trees along the property fence, presumably defendant's truck.
The evidence, therefore, shows that during the entire encounter between Trujillo and defendant, Trujillo was on the dirt road that was accessible for use by the other individuals living or working on the several lots of land located in the area and never trespassed or attempted to trespass on the ranch where defendant lived and worked. (See Curtis, supra, 30 Cal.App.4th at pp. 1361, 1362 [defense of habitation applies only if defendant reasonably believed that trespass was occurring or about to occur; instruction was not required where there was no evidence that reasonable person would have believed that victim was about to break in].)
" 'In determining whether error has been committed in giving jury instructions, we consider the instructions as a whole and assume jurors are intelligent persons, capable of understanding and correlating all jury instructions which are given. [Citation.]" 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.'" '" (People v. Morales (2021) 69 Cal.App.5th 978, 994.)
CALCRIM Nos. 505 and 506 both instruct on similar affirmative defenses, i.e., self-defense or defense of another (CALCRIM No. 505) and defending against harm to a person within a home or on property (CALCRIM No. 506), respectively, and in light of defendant's testimony, have overlapping elements except for the requirement under CALCRIM No. 506 that a defendant have acted to defend his home, as well as a person within the home. Here, defendant testified he acted to defend himself from Trujillo whom defendant believed intended to kill him, but defendant was on the dirt road outside his home. Moreover, defendant testified that Trujillo punched defendant one to three times and defendant grabbed a firearm from defendant's truck to scare Trujillo but then fired it when defendant believed that Trujillo was reaching into Trujillo's truck for a firearm. Defendant's primary theory of defense in the case thus was that he acted in self-defense, and these legal principles were covered by CALCRIM No. 505.
Therefore, the trial court did not have duty to sua sponte instruct defendant with CALCRIM No. 506.
2. Any error made by the trial court in failing to sua sponte instruct the jury with CALCRIM No. 506 was harmless
While we reject defendant's assertion that the evidence was sufficient to support an instruction on defense of property, we also conclude that any error in failing to give the instruction was harmless under either federal or state standards. (See People v. Schuller (2023) 15 Cal.5th 237, 260 ["We also express no opinion on the appropriate standard of review for instructional errors related to other forms of defensive theories, including affirmative defenses."]; People v. Gonzalez (2018) 5 Cal.5th 186, 199 [California Supreme Court has "yet to determine whether a trial court's failure to instruct on a requested affirmative defense instruction supported by substantial evidence is federal constitutional error or state law error"].) "The 'generally applicable California test for harmless error' is set forth in [People v.] Watson, supra, 46 Cal.2d 818. [Citation.] Under the Watson test, we deem an error harmless unless it is 'reasonably probable' the outcome would have been different in the absence of the error." (People v. Hendrix (2022) 13 Cal.5th 933, 942.) "In contrast, we evaluate the harmlessness of violations of the federal Constitution under the standard set forth in Chapman v. California (1967) 386 U.S. 18, which requires reversal unless the error is harmless 'beyond a reasonable doubt.'" (People v. Gonzalez, supra, 5 Cal.5th at pp. 195-196.)
As previously discussed, the trial court instructed the jury on reasonable selfdefense with CALCRIM No. 505. This instruction informed the jury that defendant was not guilty of manslaughter or murder if (1) he reasonably believed that he was in imminent danger of being killed or suffering great bodily injury, (2) he reasonably believed that the immediate use of deadly force was necessary to defend against that danger, and (3) he used no more force than was reasonably necessary to defend against that danger. The instruction also provided that defendant did not have to retreat and was entitled to stand his ground and defend himself and if reasonably necessary, to pursue an assailant until the danger, death or great bodily injury had passed, even if safety could have been achieved by retreating. The instruction also stated that the prosecution had the burden of establishing that defendant did not act in self-defense. After receiving the instructions, the jury returned a second degree murder verdict. Thus, the jury necessarily found one or more of the elements of self-defense was lacking.
Defendant argues that CALCRIM No. 506 includes the right to defend against intended or forcible crimes to his home and property. However, as we have noted, there is no evidence that Trujillo's behavior threatened harm to defendant's residence. Furthermore, fear that Trujillo intended injury to defendant's home or property would not justify the use of deadly force because "the intentional use of deadly force merely to protect property is never reasonable" and "a homicide involving the intentional use of deadly force can never be justified by defense of habitation alone." (Curtis, supra, 30 Cal.App.4th at p. 1360.) Defendant also argues that the failure to instruct with CALCRIM No. 506 resulted in the jury not being instructed on an issue "key to [his] defense"-"that [he] was in his home and had no duty to retreat." However, CALCRIM No. 505 instructed the jury that defendant had no duty to retreat whether or not Trujillo threatened his home.
Ultimately, then, defendant's argument for prejudice from the court's failure to give the defense of property instruction rests on the premise that the jury could have found that defendant acted in reasonable defense of his property in shooting Trujillo even though it found that defendant did not act in reasonable self-defense in protecting his person. This argument is fundamentally flawed. "[I]t is ... clear that a person has no greater rights in defense of his property than he does of his life." (People v. Smith (1967) 249 Cal.App.2d 395, 402.) Defendant still must also show either self-defense or defense of others, i.e., that he reasonably believed the intruder intended to kill or inflict serious injury on someone in the home, and this legal principle was included in CALCRIM No. 505.
Given the overlapping elements of CALCRIM Nos. 505 and 506 and defendant's testimony that he shot Trujillo because Trujillo had threatened to kill defendant and reached for a weapon, the jury would have ultimately considered under both these instructions whether, at the time defendant fired the fatal shots, he reasonably believed he was in imminent danger of being killed by Trujillo, and the use of deadly force was necessary to protect himself from the danger. Under the applicable facts, both instructions mandate the same analysis.
Defendant testified predominantly that Trujillo threatened to kill him, punched him several times, and appeared to reach for a weapon as the basis for his belief that Trujillo intended to kill him. His counsel argued that this case involved defense of self and that defendant believed there was imminent danger of being killed or suffering great bodily injury, that his belief was reasonable, and that he used no more force than necessary. The jury nonetheless chose to convict defendant of second degree murder. This indicates that the jury did not accept defendant's claims that he used deadly force because of a genuine and reasonable fear that Trujillo would inflict great bodily injury or kill him. Adding an additional instruction that defendant could have acted in self-defense if he had a fear of great bodily injury or death inside his house would not have changed the jury's finding on this point.
Therefore, even if the court erred in failing to instruct the jury with CALCRIM No. 506, the error was harmless under any standard. (See People v. Wright (2006) 40 Cal.4th 81, 98-99 [error in failing to instruct jury is harmless under any standard when jury necessarily decides factual questions posed by omitted instruction under other properly given instruction].)
Defendant argues that if any alleged error does not individually warrant reversal, the cumulative prejudicial effect of those errors deprived him of a fair trial. Having concluded that the trial court did not err, there are no errors to cumulate. (See People v. Kocontes, supra, 86 Cal.App.5th at p. 891 [indicating that a necessary predicate of a cumulative error claim is the existence of" 'a series of trial errors' "].)
DISPOSITION
We vacate defendant's sentence and remand the matter for resentencing. In all other respects, the judgment is affirmed.
WE CONCUR: LEVY, J., FRANSON, J.