Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCR-471947
Richman, J.
This appeal arises from an altercation between defendant Jose Rodriguez-Montero and Raul Ake that landed Ake in the hospital with a concussion, multiple lacerations, and his right eye swollen shut. A jury convicted defendant of assault with a deadly weapon and by means of force likely to produce great bodily injury, and he was sentenced to 13 years, four months in state prison. On appeal, defendant asserts (1) that he was deprived of effective assistance of counsel, (2) that the court committed numerous instructional errors, and (3) that the prejudicial effect of the cumulative errors deprived him of due process. We reject defendant’s claims and affirm the judgment of conviction.
I. Background
By way of amended information filed November 30, 2005, the District Attorney of the County of Sonoma charged defendant with one count of felony assault with a deadly weapon and by means of force likely to produce great bodily injury (count I, Pen. Code, § 245, subd. (a)(1)), and one count of threatening to commit a crime which would result in death or great bodily injury (count II, § 422). As to count I, it was alleged that defendant personally inflicted great bodily injury upon Ake (§ 12022.7, subd. (a)) and that the offense was a serious and violent felony (§§ 1192, subd. (c)(8), 667.5, subd. (c)(8)). Count II was alleged to be a serious felony within the meaning of section 1192.7, subdivision (c)(23). The amended information also alleged a prior strike conviction (§ 1170.12) and a prior serious felony conviction (§ 667, subd. (a)(1)), both stemming from defendant’s May 17, 2005 conviction for felony assault with the intent to commit rape (§ 220).
All statutory references are to the Penal Code unless otherwise specified.
At the time of the instant offense, defendant was on probation for his section 220 conviction. A probation revocation report was filed in that case in light of the instant charges. The probation violation charge trailed the assault case.
A jury trial began on November 30, 2005 before the Honorable Kenneth Gnoss. The prosecution began its case with testimony from Ake, who testified that in September 2005, he lived in an apartment in Santa Rosa with five other individuals. He had known defendant for approximately six years, and at one point defendant had lived in Ake’s apartment for a month or two after being released from jail. He left about eight months prior to the incident, however, because, according to Ake, defendant “drinks too much” and “starts looking for fights and insulting.” After he moved out of Ake’s apartment, defendant moved in with one of his brothers in an apartment in the same complex. At the time of the altercation, another one of defendant’s brothers lived with Ake, as did a friend by the name of Guillermo, who goes by the nickname “Memo.”
On the night of September 10, 2005, Ake returned home from work around midnight and found Memo drunk and asleep on the sofa in the living room. Ake went into his bedroom where he was “cool[ing] off” and watching television, when he heard someone outside yelling the name “Memo.” Peering out the window, Ake saw defendant, who had previously threatened to hit him, running towards the apartment. Because he did not want defendant coming in and causing trouble, Ake got up and locked the front door. He then went into the kitchen to get some bread. As he did so, defendant began knocking “really hard” on the door. One of Ake’s roommates, Jose Vasquez, who had either just returned home or had been in another bedroom, opened the front door and let defendant in.
After entering the apartment, defendant, who appeared to have been drinking, attempted without success to wake Memo. Ake did not want any trouble, but defendant began insulting him and his family and threatened to hit him. Ake told him three times to get out, but defendant persisted with his insults, prompting Ake to insult him back. After this exchange, defendant walked out the front door, which Ake then closed behind him. The door did not latch, however, and defendant came back in and began hitting Ake. As Ake described it, “He came in running, and he grabbed me. And he grabbed my head with one hand, and he was hitting me in the nose with his other hand.” Ake unsuccessfully tried to fend him off and they both eventually fell to the floor with defendant on top, still hitting Ake. Defendant then pinned him down by putting his knees on Ake’s chest, so Ake turned his head and bit defendant’s leg. Defendant still did not get off, so Ake grabbed his hand and bit his finger. At that point, Vasquez, who had left the apartment after defendant came in, returned and told defendant to get out.
Ake got up and went into the bathroom to wash his face because his nose was bleeding. As he was sitting on the closed toilet seat, he heard somebody yell, “He’s coming after you with a knife.” Defendant then came into the bathroom holding a knife, described by Ake as a kitchen knife with a ten-inch blade and a three-inch handle, and threatened to kill him with the knife. Defendant kicked Ake in the chest, arm, and face and then hit him in the back of the head about ten times with the blunt end of the knife handle, cutting his shoulder with the tip of the knife blade. Defendant ignored Ake’s please to stop, so Ake dropped to the floor and defendant finally stopped hitting him and left the bathroom, taking the knife with him. Ake was still laying on the bathroom floor when the police arrived.
The parties stipulated that in his testimony at the preliminary hearing, Ake did not testify that someone had yelled out to him that defendant was coming after him with a knife.
Ake was transported to the hospital by ambulance, where he received stitches for a laceration behind his left ear. He also suffered a concussion and a cut on one of his fingers, and his right eye was bruised and swollen shut. After he was released from the hospital, he stayed home for seven or eight days and could not work. He took prescription pain medication for three or four days to treat strong headaches, but by the time of trial, he had recovered from his injuries and suffered no lingering effects.
Santa Rosa Police Officer Brian Mann then took the stand. He was on patrol that night when he received a call at about 15 minutes after midnight concerning a possible stabbing. He arrived at Ake’s apartment, where he found four individuals standing inside, one of whom was pointing towards the bathroom and saying, “He’s in the bathroom.” Mann then noticed spots of blood on the living room doorway and the carpet. He walked to the bathroom, where he found Ake sitting shirtless on the floor, holding his hand to the left side of his head behind his ear. Ake’s chest and face were covered in dried blood, and his left hand was covered in wet blood, suggesting he had a head wound that was still bleeding. There were numerous spots of blood all over the bathroom. Mann briefly spoke with Ake while waiting for the medical personnel to arrive, but Ake appeared to be in a lot of pain and was unable to communicate other than telling the officer his name.
Officer Mann then spoke with the four individuals in the apartment, all of whom were reluctant to cooperate but ultimately provided him with information that led to the identification of defendant as the suspect. He prepared a photo lineup which he showed to Ake at the hospital, and in “about two seconds” Ake identified defendant as the individual who assaulted him. Mann then went to defendant’s apartment, where he found him sleeping on a bed. After waking him, Mann noticed a large amount of blood on the front of his pants. He then placed defendant under arrest.
Officer Mann related the version of events as defendant described them to him that evening: “He told me he had gone to his brother’s house to visit. When he got there, he noted his brother was gone. He told me Mr. Ake started yelling at him for no reason; basically in fact, told him to, ‘Get the fuck out.’ [Defendant] started arguing back with Mr. Ake, and they both started fighting.” Defendant told the officer that while he did not remember who threw the first punch, he had to strike Ake numerous times to get Ake to stop biting him. He denied that a knife was involved. He also told the officer that he fled the apartment after he broke free from Ake and was chased by some of the individuals who had been in the apartment.
While they were still in defendant’s apartment, defendant pointed out an injury to a finger on his left hand which, according to Officer Mann’s testimony, appeared “very severe,” and explained that Ake bit him. Defendant was taken to the hospital for treatment, where it was discovered that he also had a bite wound on his leg. It was subsequently determined that defendant’s finger was fractured from Ake’s bite. Defendant also complained of pain to the middle finger of his right hand, which was swollen. According to Mann, “It appeared he had been injured hitting something.”
Officer Mann searched Ake’s apartment for the knife, but was unable to locate it. Officers also searched areas outside the apartment but never located the knife.
After the prosecution rested, defendant took the stand in his own defense. He testified that he had known Ake for about 15 years, having first met him in Mexico. They had lived together many times and, during the most recent occasion, had an argument because Ake had too many parties. This was a problem for defendant because he was on felony probation after having been convicted of assault with intent to commit rape. As a term of his probation, defendant could not drink and could not be at parties with people who drink. As a result, defendant moved out of the apartment. He admitted they had also argued about defendant’s failure to pay rent while he was living at the apartment.
On the night of September 10, 2005, defendant went to Ake’s apartment to get a key from one of his brothers to open his other brother’s apartment. When he got to the apartment, he called out for “Yipis,” who is also known as Memo or Guillermo Vasquez. Defendant claimed that he wanted him to get the key from his brother so he did not have to see Ake. Jose Vasquez let him into the apartment, and when he went in, he saw Ake in the kitchen. He proceeded to his brother’s room and knocked on the door, but no one answered, so he went back to the living room, where he spotted Memo asleep on the couch. He was attempting to wake Memo when Ake gave him “a bad look” and told him not to wake Memo. Ake began insulting him and his mother, so he did the same thing back. He then left the apartment, but Ake continued to insult him so he went back inside. Jose Vasquez got in the middle, but the two continued their insults. Ake then “came running against” him, and they ended up “hugging.” Ake “grabbed and hung” from his hair, and they both fell to the ground, wrestling. Defendant testified that he did not know who hit whom first, but at some point he ended up on top of Ake, grabbing his hands because Ake was trying to punch him. Defendant told Ake to “just . . . calm down,” but he did not, instead biting defendant on the leg. At this point there were five individuals watching them, and he said to them, “Please remove him from me,” but nobody intervened. Defendant could not stand the pain from the leg bite so he hit Ake in the face. Ake then got loose and ended up on top of him, scratching and hitting him as he tried to protect himself from Ake’s punches. Defendant was trying to push Ake off of him when his left index finger slipped into Ake’s mouth and Ake bit it without letting go. Defendant began screaming for help from the other men, but, again, no one came to his aid. While Ake continued to bite his left finger, defendant was hitting him in the face.
Ake finally let go of defendant’s finger, got up, and walked away. Defendant did not know where Ake went as he was preoccupied with looking for an expensive chain and medallion he had been wearing around his neck. When he could not find them, he went looking for Ake, who he thought had his chain, and found him sitting in the bathroom on the closed toilet. Ake had something in his hand and defendant thought he was going to hit him with it, so he kicked Ake in the chest before he could raise his hand to strike, causing him to drop the object. When asked why he kicked Ake in the chest, defendant answered, “I was upset.” Ake attempted to retrieve the object, but defendant began punching him in the head with his middle knuckle extended. When asked why he did so, he testified, “Because he bit off my finger.” After defendant hit him, Ake fell to the floor, and defendant left the bathroom. The other men were still in the living room, and they began insulting him. Defendant demanded his chain, which he then found on the kitchen table. He had lost his shoes during the altercation and grabbed someone else’s shoes as he ran out of the apartment with the other men chasing him to the door and one of the men using a cell phone to make a call, presumably to the police.
Defendant denied telling Ake he was going to kill or stab him, that he had a knife at any point during the altercation, and that he had consumed any alcohol that evening.
On December 9, 2005, the jury returned a guilty verdict on count I, finding that defendant committed assault with a deadly weapon (a knife) and, alternatively, that he committed assault by means of force likely to produce great bodily injury. The jury also found it true that he inflicted great bodily injury upon Ake within the meaning of section 12022.7, subdivision (a). The jury found defendant not guilty on count II.
On December 20, 2006, the court sentenced defendant to 13 years, four months in state prison, comprised of the four-year upper term for assault, three years for the great bodily injury enhancement, five years for the prior serious felony conviction, and 16 months for probation violation in his section 220 case.
Before the commencement of trial, defendant admitted the prior strike and serious felony conviction allegations. Prior to sentencing, defendant filed a motion to strike his prior strike conviction pursuant to section 1385, subdivision (a) and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court granted the motion for sentencing purposes.
Defendant timely filed a notice of appeal.
III. Discussion
A. Ineffective Assistance of Counsel
In People v. Ledesma (1987) 43 Cal.3d 171, our Supreme Court explained the showing necessary to obtain a reversal of a conviction on ineffective assistance of counsel grounds: “ ‘A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components.’ [Citations.] ‘First, the defendant must show that counsel’s performance was deficient.’ [Citations.] Specifically, he must establish that ‘counsel’s representation fell below an objective standard of reasonableness . . . under prevailing professional norms.’ [Citations.] . . . [¶] In determining whether counsel’s performance was deficient, a court must in general exercise deferential scrutiny.” (Id. at p. 216.) The court then explained the second component: “[A] criminal defendant must also establish prejudice before he can obtain relief on an ineffective-assistance claim.” (Id. at p. 217.) “ ‘The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (Id. at pp. 217-218.) Defendant has shown neither deficient performance by counsel nor prejudice.
Defendant first contends he was deprived of effective assistance of counsel based on the following comment made by defense counsel in his opening statement: “[M]any times we present a road map, if you will, of the evidence in our opening statement. And it doesn’t always comport with what comes out at trial. Sometimes you get surprised by the evidence. So if I say anything . . . that isn’t exactly accurate, try not to hold that against me. Certainly don’t hold it against [defendant].” Defendant faults this passage, claiming it “did nothing but create an aura of suspicion” around him and his testimony, conveying to the jury that counsel lacked confidence in defendant’s version of the events. This was nothing more than a harmless—indeed ofttimes correct—statement by defense counsel of how evidence often unravels at trial, or, in defendant’s own words, of “the inevitability of discrepancies in witness testimony.”
More significantly, defendant contends he was deprived of effective assistance of counsel because his attorney put before the jury the facts (1) that defendant had a prior conviction for assault with intent to commit rape; (2) that he had been incarcerated for that assault; and (3) that he was on felony probation at the time of the incident. Defendant’s argument is premised on one comment in the opening statement and one colloquy during trial.
During opening statements, defense counsel explained to the jury: “[Defendant] previously resided in the same apartment where [the fight] occurred with Mr. Ake and some other individuals. But [defendant], who is going to testify in this case, was in jail for a few months. And you’re going to find out he was convicted of assault with intent to commit rape. He was convicted of that, and he spent some time—a few months in the Sonoma County jail. So you’re going to hear about that, but only insofar as it relates to his credibility, okay? [¶] And he got out of custody, and was on probation because of that, and went to look for his brother at the apartment where Mr. Ake resided . . . .”
Later, when defendant took the stand to testify, defense counsel elicited the following testimony from defendant:
“Counsel: When you lived [in Mr. Ake’s apartment], did you have problems getting along with Mr. Ake?
“Defendant: No.
“Counsel: You’ve never had any disagreements with him?
“Defendant: Yes, we did have one.
“Counsel: What was that about?
“Defendant: I once—uh, there was an argument that [he] had too many parties.
“[¶] . . . [¶] Counsel: Why was it a problem that Mr. Ake had parties?
“Defendant: Because I’m a—I’m on felony—I’m on felony probation.
“Counsel: So were you staying at the apartment while on felony probation?
“Defendant: Yes.
“Counsel: Now it is—Isn’t it true you were convicted of assault with intent to commit rape?
“Defendant: Yes.
“Counsel: And that’s—that’s why you were on felony probation?
“Defendant: Yes, yes.
“Counsel: So because you were on felony probation, were there some restrictions on your activities?
“Defendant: Yes.
“Counsel: And how did—how did Mr. Ake’s activities affect that?
“Defendant: Badly.
“Counsel: Okay, but what—why—Why did you object to Mr. Ake having parties because you were on felony probation?
“[¶] . . . [¶] Defendant: Because my probation officer has told me that I cannot drink and I cannot be at parties with people who drink.”
According to defendant, his attorney allowed the jury to learn these facts despite the trial court’s belief that they were unduly prejudicial and should be not put before the jury. And, he claims, he suffered prejudice as a result because the evidence destroyed his credibility in a case that basically amounted to a credibility contest between defendant and Ake as to who was the aggressor and who was acting in self-defense. We are not persuaded.
Turning first to defendant’s prior conviction for assault with intent to commit rape, defendant argues that it was unreasonable for his counsel to allow the jury to learn of his defendant’s prior conviction, an argument premised on his belief that the trial court was inclined to exclude evidence of the conviction for impeachment purposes because the evidence would be unduly prejudicial pursuant to Evidence Code section 352. Defendant grossly overstates the trial court’s position.
Prior to the commencement of trial, the prosecution moved to introduce evidence in its case-in-chief of the defendant’s prior criminal conduct that resulted in his section 220 conviction. In denying the motion, the court stated: “[F]or me to admit the prior act as evidence, it must be relevant to prove some fact such as motive, opportunity, intent, preparation, common place or scheme, knowledge, identity, absence, or mistake or accident, other than just simply his or her—in his disposition to commit such an act. Even if I found that there were enough similarities and there was relevancy in introducing this prior, the Court would then have to exercise its judgment under 352 of the Evidence Code. [¶] And quite frankly, in looking at the facts, I find really nothing that would lead this Court to believe that this prior, at this point, should be introduced. . . . [¶] So it’s the Court’s ruling, at this point, in the People’s case in chief, I would not allow the introduction under 1101 of the Evidence Code. And if for some reason the Prosecution felt it became relevant in some other proceedings in this trial, I’d certainly reconsider it. But at this point, I feel it should not be brought before the jury.” From this, defendant concludes: “Given these comments from the trial judge, it was far from a foregone conclusion that [defendant’s] prior would be admitted for impeachment purposes. Indeed, quite the opposite: the trial court’s comments suggest it likely would have excluded the prior conviction under the balancing test of Evidence Code section 352.” Simply put, defendant is wrong.
Contrary to defendant’s claim, the court never expressed an opinion that the conviction was too prejudicial for it to be admitted. When the court was discussing the relevance and prejudicial effect of defendant’s prior, it was doing so in the context of the prosecution’s motion in limine to introduce his prior criminal conduct under Evidence Code section 1101, subdivision (b). The court was thus focused on whether defendant’s prior conduct was admissible to show, as stated in the prosecution’s motion, “a common plan, scheme or design, or modus operandi.” This is a completely different question than whether the fact of defendant’s prior conviction was admissible to impeach his credibility if he took the stand in his own defense. There is absolutely nothing in the record suggesting the trial court believed the fact of the conviction was inadmissible for the latter purpose.
Evidence Code section 1101, subdivision (b) allows for “the admission of evidence that a person committed a crime . . . when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.”
Further, we cannot conclude that it was deficient for counsel to have failed to move to exclude the prior conviction for impeachment purposes, for two reasons. First, defendant himself recognizes that counsel may have preemptively introduced the evidence because he believed the prosecution would use the conviction to impeach defendant’s credibility on cross-examination. He claims, however, that this strategy was unreasonable because the trial court wanted to exclude it as unduly prejudicial, an argument we have already rejected. And, this was in fact a reasonable trial strategy because introducing the evidence as part of defendant’s case might deprive the evidence of the impact it could have if first brought out by the prosecution on cross-examination. (See Moore et al., Trial Advocacy: Inferences, Arguments and Techniques (1996) p. 109 [concealing unfavorable information which your adversary then elicits during trial can call client’s version of events into question and affect his or her credibility]; Murray, Basic Trial Advocacy (1995) pp. 115-116 [attorney should present unfavorable matter on direct examination in order to “defuse the otherwise unfavorable impact of the material”].) This was a particularly apt strategy here, where defendant necessarily had to take the stand in order to put evidence before the jury to contradict Ake’s version of the events. As defendant himself admits, we must afford deference to defense counsel’s tactical decisions. (People v. Weaver (2001) 26 Cal.4th 876, 925 [“ ‘Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a strong ‘presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ [Citations.]”].)
Secondly, it was not ineffective for counsel to fail to move to exclude defendant’s prior conviction because counsel will not be deemed ineffective for failing to file a futile motion. (See, e.g., People v. Anderson (2001) 25 Cal.4th 543, 587; People v. Hines (1997) 15 Cal.4th 997, 1038, fn. 5.) A motion to exclude defendant’s prior conviction here would have been futile.
Impeachment with prior convictions is governed by subdivision (f) of article I, section 28 of the California Constitution (subdivision (f)), which provides in pertinent part: “Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.” (See also Evid. Code, § 788 [subject to certain exceptions, “For purposes of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony”].) However, “trial courts retained discretion to bar the use of prior offenses for impeachment purposes where the offenses are irrelevant to the issue of credibility or where, under an Evidence Code section 352 evaluation, the court finds that admission of the prior offense would create substantial danger of undue prejudice.” (People v. Massey (1987) 192 Cal.App.3d 819, 822 (Massey), citing People v. Castro (1985) 38 Cal.3d 301, 306.) As the Massey court summarized, “To be relevant to credibility, the prior offense must be a crime displaying moral turpitude or depravity, indicating a ‘general readiness to do evil.’ Only then can a prior conviction properly lead to an inference of a readiness to lie.” (Massey, supra, at p. 822, citing People v. Castro, supra, 38 Cal.3d at pp. 313-316.)
Assault with the intent to commit rape is a crime of moral turpitude. (People v . Morris (1991) 53 Cal.3d 152, 194-195, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824; People v. Bonilla (1985) 168 Cal.App.3d 201, 205 [“We conclude that assault with intent to commit rape necessarily involves moral turpitude and is an impeachable felony under subdivision (f).”].) Since defendant’s conviction for assault with the intent to commit rape was his only prior felony conviction for a crime of moral turpitude, to exclude the conviction for impeachment purposes would have given defendant’s testimony a “false aura of veracity.” (People v. Benton (1979) 100 Cal.App.3d 92, 97; People v. Castro (1986) 186 Cal.App.3d 1211, 1217.)
The question, then, is whether the court would have excluded the conviction under Evidence Code section 352 as unduly prejudicial. The answer is an unequivocal no. Defendant’s prior conviction was recent in time, occurring just five months before the altercation with Ake, and had thus not been attenuated by time. (See People v. Beagle (1972) 6 Cal.3d 441, 453 [remoteness in time is a factor to be considered in weighing prejudice of prior conviction under section 352]; Massey, supra, 192 Cal.App.3d at p. 825 [rejecting defendant’s argument that the court erred in admitting his prior convictions because they were remote in time].) Defendant has not offered any basis for excluding the prior conviction for impeachment purposes, other than his mistaken belief that the trial court expressed its inclination to do so. And we discern no such basis from the record. To be sure, the evidence may have impacted his credibility in the eyes of the jury. This, of course, is precisely the point of subdivision (f), and it is a far cry from the undue prejudice requiring exclusion under Evidence Code section 352. As such, a motion to exclude the prior conviction for impeachment purposes would have been unsuccessful.
Defendant also suggests that at the very least defense counsel should have sought to “ ‘sanitize’ the conviction in order to avoid the inherent prejudice flowing from the ‘sexual overtones’ of the prior charge.” Trial courts do indeed have discretion to sanitize prior convictions introduced for impeachment. (See, e.g., Massey, supra, 192 Cal.App.3d at p. 825; People v. Foreman (1985) 174 Cal.App.3d 175, 182.) However, we see no fault in defense counsel’s failure to request that defendant’s prior conviction be sanitized to eliminate the sexual nature of the crime. Defendant’s prior conviction was for assault with attempt to commit rape; by eliminating the sexual nature of the crime, the jury would only have learned that defendant had been convicted of felony assault. Rather than helping his case, this strategy had the potential for damaging it because the prior conviction would then have been similar to the crimes for which he was being prosecuted, and the jury might have been inclined to use it—albeit improperly—as propensity evidence. (See People v. Beagle, supra, 6 Cal.3d at p. 453 [danger of prejudice is higher for the same or a similar crime because the jury may be more likely to conclude that defendant is guilty of the crime charged if defendant previously committed the same type of crime].) We thus see no benefit to defendant in telling the jury that he had been convicted of felony assault, rather than felony assault with attempt to commit rape.
Defendant does not argue that the jury should have learned only that defendant had been convicted of a felony, rather than felony assault. We therefore do not address this issue at length. We note, however, that the court in People v. Valentine (1986) 42 Cal.3d 170 described the dangers of sanitizing a prior conviction in such manner: “[I]t is the nature of the felony which is probative as to credibility; allowing all felonies for impeachment, so long as they are ‘sanitized,’ would prevent the jury from assessing the relevance of a particular prior offense and would encourage adverse inferences on credibility from felonies which have no value for that purpose. [Citation.] In addition, ‘[because] a conviction thus “expurgated” is of so little assistance in determining credibility, [some] jurors may give up the effort and simply draw the improper inference that the conviction “at least” shows the defendant has a criminal disposition.’ Or, under the circumstances, they ‘may well speculate that the conviction was for an offense especially damaging to the defendant’s credibility. . . . Why else, they might wonder, were they told of its occurrence?’ ” (Id. at p. 183, fn. 8, quoting People v. Rollo (1977) 20 Cal.3d 109, 119.)
Finally, even if we were to conclude that defendant’s attorney was deficient because he failed to seek the exclusion or sanitization of defendant’s prior conviction—which we do not—we still would not reverse on ineffective assistance of counsel grounds because defendant has failed to establish that there is a reasonable probability he would have obtained a more favorable result had the conviction been excluded or sanitized for impeachment purposes. Contrary to defendant’s claims that “the case was a close one,” the evidence of defendant’s guilt was overwhelming. By defendant’s own testimony, after the first fight in the living room ended, he and Ake went separate ways. However, he later tracked Ake to the bathroom where, without any provocation, he kicked him three times and then repeatedly pummeled him in the head because he was “upset” Ake bit his finger. Defendant’s defense to the charges was a claim of self-defense but under no interpretation of this scenario does it amount to self-defense. Combined with the court’s instruction that the jury could not consider the evidence of defendant’s prior conviction for anything other than weighing his credibility, there is no reasonable probability defendant would have obtained a more favorable result had his prior conviction been excluded or sanitized.
In addition to evidence of his prior conviction, defendant also takes exception with counsel’s repeated references to his prior incarceration and felony probation status. He contends it was “crystal clear” the trial court wanted to exclude evidence of these facts, relying on the following passage by the court: “[T]here was a statement by the victim in the prelim about some conduct of the defendant, that he had prior problems with the defendant before he went to jail last time. When I read that, I was a little concerned in—I would think that may—should not come in in front of the jury about his prior incarceration.” This passage does indeed appear to suggest that as to the fact of defendant’s prior incarceration, the court was inclined to exclude it. However, once again, we must conclude that in light of the overwhelming evidence of defendant’s guilt, detailed above, he was not prejudiced by the reference to his prior incarceration. Nor by evidence reflecting his probation status.
B. Jury Instructions
1. CALJIC 2.52—Flight After Crime
Defendant contends that the trial court erred in instructing the jury, over defense counsel’s objection, with CALJIC No. 2.52, which provides as follows: “The flight of a person immediately after the commission of a crime is not sufficient, in itself, to establish his guilt, but is a fact which, if proved, may be considered by you in light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.” Defendant asserts there was insufficient evidence of flight to justify the giving of the instruction.
This instruction is derived from section 1127c, which provides in pertinent part: “In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.”
“A flight instruction is proper whenever evidence of the circumstances of defendant’s departure from the crime scene or his usual environs, or of his escape from custody after arrest, logically permits an inference that his movement was motivated by guilty knowledge.” (People v. Turner (1990) 50 Cal.3d 668, 694.) “It is clear that the instruction may not be given in the absence of some evidence which might reasonably be interpreted as indicating flight by defendant from the scene of the crime.” (People v. Lutz (1980) 109 Cal.App.3d 489, 498.) We must thus determine whether the prosecution presented sufficient evidence from which the jury could have reasonably inferred that defendant fled from the altercation with Ake. (Ibid.)
Defendant testified that after Ake dropped to the floor in the bathroom, he retrieved his chain from a table in the kitchen and then searched for his shoes. Unable to find them, he grabbed a different pair. He then ran out of the apartment, with Ake’s roommates chasing him to the door. As defendant ran out of the door, he saw one of the men making a telephone call on a cell phone, which he presumed was to the police since someone said they were going to call the police. Defendant continued across the apartment complex and into the apartment he shared with his brother. From this, a jury could reasonably have inferred that defendant fled the apartment because he was guilty of assaulting Ake. (See, e.g., People v. Lutz, supra, 109 Cal.App.3d at p. 499 [flight instruction was proper where defendant left his apartment 10 minutes after a crime was committed and did not return for many hours]; People v. Cannady (1972) 8 Cal.3d 379, 391 [evidence that defendants were walking away from the scene of the crime was sufficient to support giving the instruction].)
Additionally, the jury convicted defendant of assaulting Ake with a knife, yet no knife was found on defendant or in his apartment, supporting a reasonable inference that he fled from the apartment to dispose of the knife. The instruction was, therefore, properly given.
Defendant disputes this conclusion, placing great emphasis on the fact that because he left the apartment before the police were called, he could not have been fleeing from the police. Instead, he submits, the evidence showed that he left the apartment because Ake’s roommates were chasing him, which does not reflect consciousness of guilt. And he simply went to his apartment, which was 100 to 150 yards away in the same complex. Defendant’s argument is misplaced, however, because the question is not whether defendant was fleeing from the police but whether he was fleeing from the scene of a crime, and the fact that he ran from the apartment after the altercation with Ake could reasonably have been construed by the jury as flight from the scene of a crime. Additionally, flight does not require “the reaching of a far away haven.” (People v. Cannady, supra, 8 Cal.3d at p. 391.)
That being said, we do not disagree that based on defendant’s testimony, a reasonable inference could be drawn that defendant fled because he was being chased. However, it remains that a reasonable inference could also be drawn that he fled from the apartment because he was guilty of committing a crime. That conflict was a question of fact for the jury to resolve. (People v. Caldera (1959) 173 Cal.App.2d 98, 101.)
2. CALJIC 5.55—Self-defense Cannot Be Contrived
In his next challenge to the jury instructions, defendant submits that the trial court erred in the manner in which it instructed the jury on self-defense. As to the use of self-defense by an aggressor (CALJIC No. 5.54), the court instructed: “The right of self-defense is only available to a person who initiated an assault, if, [¶] (one), he has done all the following: [¶] (a), he has actually tried, in good faith, to refuse to continue fighting; [¶] (b), he has, by words or conduct, caused his opponent to be aware, as a reasonable person, that he wants to stop fighting; and, [¶] (c), he has, by words or conduct, caused his opponent to be aware, as a reasonable person, that he has stopped fighting. [¶] After he has done all these three things, he has the right to self-defense if his opponent continues to fight.” The court then instructed the jury with CALJIC No. 5.55: “The right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense.” According to defendant, “CALJIC No. 5.55 conflicts with CALJIC No. 5.54 and misstates the law by instructing the jury that an aggressor is foreclosed from raising a self-defense claim . . . .” This conflict exists because, as defendant reads it, “every person who initiates a fight and subsequently claims self-defense fits within” the descriptions of CALJIC No. 5.55.
Defendant’s analysis in support of his position is very lengthy with a detailed analysis of numerous California Supreme Court cases from the 1800’s and other cases. But we can answer this question briefly by simply pointing out that defendant misconstrues the language of CALJIC No. 5.55. It does not apply to “every person who initiates a fight and subsequently claims self-defense.” Rather, the plain language of the instruction makes clear that it applies only to a small subset of individuals who initiate a fight in order to contrive the necessity for self-defense and justify his or her violent actions. In other words, it applies only to an initial aggressor who commences combat for the purpose of provoking a violent reaction so that he or she can then retaliate with further violence under the guise of self-defense. CALJIC No. 5.55 instructs the jury that under such circumstances, self-defense is not available. There is no conflict with CALJIC No. 5.54.
We note that in a footnote defendant claims “CALJIC No. 5.55 contains no requirement that one operate with the specific intent to contrive a self-defense scenario.” While the meaning of this argument is unclear, defendant appears to suggest that the “intent” language of CALJIC 5.55 does not actually mean what it says, and that it does not in fact apply only where the self-defense claim has been contrived. But that is exactly how the instruction operates. And courts have long recognized that CALJIC Nos. 5.54 and 5.55 are correct statements of the law. (See, e.g., People v. Garvin (2003) 110 Cal.App.4th 484, 489 [standard CALJIC instructions on self-defense, including Nos. 5.54 and 5.55, are legally correct].)
3. CALJIC 5.54—Self-defense by Initial Aggressor; CALJIC 5.56—Self-defense by Mutual Combatants
Defendant next contends the court gave incomplete instructions on self-defense by an aggressor (CALJIC No. 5.54) and self-defense by a mutual combatant (CALJIC No. 5.56). As noted above, the court read CALJIC No. 5.54 as follows: “The right of self-defense is only available to a person who initiated an assault, if, [¶] (one), he has done all the following: [¶] (a), he has actually tried, in good faith, to refuse to continue fighting; [¶] (b), he has, by words or conduct, caused his opponent to be aware, as a reasonable person, that he wants to stop fighting; and, [¶] (c), he has, by words or conduct, caused his opponent to be aware, as a reasonable person, that he has stopped fighting. [¶] After he has done all these three things, he has the right to self-defense if his opponent continues to fight.”
Similarly, the court instructed the jury on the use of self-defense by a mutual combatant (CALJIC No. 5.56) as follows: “The right of self-defense is only available to a person who engages in mutual combat: [¶] (one), if he has done all the following: [¶] (a), he has actually tried, in good faith, to refuse to continue fighting; [¶] (b), he has, by words or conduct, caused his opponent to be aware, as a reasonable person, that he wants to stop fighting; and, [¶] (c), he has caused, by words or conduct, his opponent to be aware, as a reasonable person, that he has stopped fighting; and, [¶] (d), he has given his opponent the opportunity to stop fighting. [¶] After he has done all these four things, he has the right to self-defense, if his opponent continues to fight.”
The court in People v. Quach (2004) 116 Cal.App.4th 294 (Quach) determined that CALJIC No. 5.56 did not accurately state the law of self-defense in that it failed to explain that if a “counter assault be so sudden and perilous that no opportunity be given to decline or to make known to his adversary his willingness to decline the strife, if he cannot retreat with safety, then as the greater wrong of the deadly assault is upon his opponent, he would be justified in slaying, forthwith, in self-defense.” (Id. at pp. 301-302.) In light of Quach, CALJIC Nos. 5.54 and 5.56 were amended in 2004 to add the following provisions, respectively: “If the victim of simple assault responds in a sudden and deadly counter assault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense.” (CALJIC No. 5.54 (2004 re-rev.) (Fall ed. 2007).) “If the other party to mutual combat responds in a sudden and deadly counter assault, that is, force that is excessive under the circumstance, the party victimized by the sudden excessive force need not attempt to withdraw and may use reasonably necessary force in self-defense.” (CALJIC No. 5.56 (2004 re-rev.) (Fall ed. 2007).) According to defendant, the evidence in this case demonstrated that Ake responded with a sudden and deadly counter assault such that the exceptions to the withdrawal and notice requirements added to CALJIC Nos. 5.54 and 5.56 in 2004 were implicated and the jury should have been instructed accordingly.
Defendant is correct on the law, but the record does not support his claim that the Quach modifications to CALJIC Nos. 5.54 and 5.56 should have been given in this case. There was simply no evidence from which a jury could have reasonably concluded that Ake responded to defendant’s assault with “a sudden and deadly counter assault.” By defendant’s own testimony, when the initial altercation ended, Ake went into the bathroom while defendant looked around for his lost chain and medallion. When he was unable to locate them, he walked over to the bathroom and opened the door, where he found Ake sitting on the closed toilet seat with an unidentified object in his hand. Before Ake made any move towards defendant, defendant kicked him three times and then beat him about the head with either his fist (defendant’s version) or a knife handle (Ake’s version). Defendant himself testified that he continued his assault on Ake because he “was upset” and because Ake bit his finger. Nothing in the record suggests that Ake launched “a sudden and deadly counter assault” that precipitated defendant’s beating of him. Defendant’s fanciful claim that “[a] reasonable juror could also have found that this evidence indicating that Ake was wielding a foreign object, showed that Ake responded to [defendant] with sudden and deadly force” does not even merit a response.
Defendant also argues that the fact Ake bit him hard enough to fracture his finger was evidence that Ake responded to defendant’s hits with “a sudden and deadly counter assault.” Even if true, it would be irrelevant because the record demonstrates it was during the second half of the altercation, occurring in the bathroom, that Ake suffered his serious injuries and engaged in absolutely no aggressive behavior towards defendant whatsoever.
4. CALJIC 5.40—Ejection of Trespasser
The trial court also instructed the jury with CALJIC No. 5.40, concerning ejection of a trespasser: “The lawful occupant of a residence has the right to request a trespasser to leave the premises. If the trespasser does not do so within a reasonable time, the occupant may use reasonable force to eject the trespasser. The amount of force which may be used to eject the trespasser is limited by what would appear, to a reasonable person, to be necessary to prevent physical injury or death to the occupant.” Defendant argues the trial court committed error by giving this instruction because it “improperly permitted the jury to presume [defendant] was a trespasser thereby vitiating his claim of self-defense and lessening the prosecution’s burden of proof . . . .” According to defendant, this instruction “presumed that a trespass had occurred on the property in question. Since Ake was a current occupant of the apartment where the altercation took place, the only logical assumption for the jury to make was that [defendant] was that trespasser and that Ake was therefore justified in his use of force.” (Fn. omitted.) We reject this argument for several reasons.
First, the instruction did not mandate a conclusion by the jury that defendant was trespassing. It simply—and correctly—informed the jury that if an individual is trespassing and has been asked by the occupant to leave the premises but does not do so, the occupant can use reasonable force to eject the trespasser. Nothing more.
Second, although Jose Vasquez opened the door and allowed defendant to enter the apartment, Ake testified that before the first altercation, he asked defendant three times to leave the apartment. Thus, while initially defendant might have been an invited guest, the record could support a finding that defendant’s permission to be on the property had been revoked such that he was then trespassing. (See, e.g., Martin Marietta Corp. v. Insurance Co. of North America (1995) 40 Cal.App.4th 1113, 1132 [trespass includes failure to leave].)
Defendant incorrectly states that “[t]he only evidence offered to suggest that this permission had been revoked, was Ake’s testimony stating that Vasquez told [defendant] to ‘go’ after the initial fight ended in the kitchen.”
Third, the trial court instructed the jury with CALJIC No. 17.31, which provides, “The purpose of the Court’s instructions is to provide you with the applicable law so you may arrive at a just and lawful verdict. Whether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist. Do not conclude that because an instruction has been given, I am expressing an opinion as to the facts.” We generally presume that jurors understand and follow the court’s instructions. (See People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) The jury here may have found that the facts did not justify the application of this instruction.
Finally, defendant complains that instructing the jury on CALJIC No. 5.40 violated his right to impartiality between the prosecution and defense instructions, which constitutes reversible error. This, he says, was so because “the jury was not given impartial instructions on self-defense, but instead was instructed in a manner that was critical of [his] self-defense claim and skewed in favor of the prosecution’s theory of the case.” We fail to see how the instructions were slanted in the prosecution’s favor, especially considering that the instructions on self-defense by an initial aggressor or a mutual combatant were clearly to defendant’s benefit.
5. CALJIC 2.27—Sufficiency of Testimony of One Witness
Lastly, defendant objects that the trial court instructed the jury as follows: “You should give the uncorroborated testimony of a single witness whatever weight you think it deserves. Testimony concerning any fact by one witness, which you believe, whose testimony about that fact does not require corroboration, is sufficient for the proof of that fact. You should carefully review all the evidence upon which the proof of that fact depends.” (CALJIC No. 2.27.) According to defendant, it was error for the court to so instruct the jury because, as provided by the Use Note, CALJIC No. 2.27 is appropriate when “corroboration of a witness’s testimony is required . . .,” which was not the case here. As a result, he submits, the court essentially advised the jury that they could find defendant’s testimony “insufficient if ‘uncorroborated,’ ” which diminished his testimony on which his entire defense relied.
First, we do not agree that the instruction advised the jury they could find defendant’s testimony insufficient if it was uncorroborated. But more importantly, we need not determine whether the instruction was properly given because even assuming it was not, defendant did not suffer prejudice. (Chapman v. California (1967) 386 U.S. 18, 24.) Accepting arguendo defendant’s version of the incident as true, the record still does not support his claim of self-defense since he admittedly went into the bathroom and, without any provocation, violently beat Ake a second time. Even if one could make an argument that defendant’s conduct during the initial altercation in the living room constituted self-defense—and we express no opinion on that issue—no such conclusion can be drawn as to the second altercation in the bathroom. Under no stretch of the imagination did defendant’s conduct as he himself described it amount to self-defense. Thus, even in the absence of a jury instruction purportedly suggesting defendant’s testimony was insufficient if uncorroborated, defendant could not have prevailed on his self-defense claim.
C. Cumulative Error
We have found no prejudicial error, and as such, there can be no cumulative error requiring reversal. (People v. Coryell (2003) 110 Cal.App.4th 1299, 1309.)
IV. Disposition
The judgment of conviction is affirmed.
We concur: Kline, P.J., Lambden, J.