Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR 912674
Sepulveda, J.
A jury convicted defendant Andre Lafayette Stevens of first degree murder for stabbing to death his friend, John Rayford McCoy, Jr. (Pen. Code, § 187, subd. (a) [all further section references are to this code, except as noted].) The jury also found that defendant personally used a knife in committing the murder (§ 12022, subd. (b)(1)), had a prior violent felony conviction for robbery (§ 1170.12), and had served a prison term for battery upon police officers (§ 667.5, subd. (b)). The court sentenced defendant to 50 years to life for murder (25 years to life, doubled for the prior violent felony conviction), plus two additional one-year terms for knife use and the prior prison term.
Defendant appeals. He contends that the trial court erred in (1) excluding evidence of the victim’s prior convictions for drug and firearm offenses, (2) admitting evidence that defendant previously assaulted his girlfriend with the knife later used to kill the murder victim, (3) failing to instruct the jury to consider the victim’s prior threats and harm to others when evaluating defendant’s claim of self-defense and imperfect self-defense, and (4) failing to instruct the jury to consider defendant’s intoxication in evaluating his self-defense and imperfect self-defense claims. We reject the contentions and affirm the judgment.
Defendant has also filed a petition for a writ of habeas corpus. We deny that petition today by separate order.
I. facts
Defendant admitted stabbing McCoy. The open question for the jury was defendant’s state of mind. The prosecution argued that defendant deliberately killed McCoy as revenge because defendant believed McCoy had sex with defendant’s girlfriend. The defense argued that defendant killed McCoy in self-defense, after McCoy attacked defendant with a knife in a fight over money. The jury convicted defendant of deliberate and premeditated murder.
A. The Prosecution
Defendant became involved with a woman in August 2006, and the two lived together in a mobile home in Clearlake, California. The victim McCoy sometimes stayed at the mobile home for a couple of days at a time. McCoy gave drugs to defendant in exchange for letting him stay the night. Around April 2007, defendant accused his girlfriend of having sex with McCoy, and she denied it. Defendant threatened to kill her. Defendant’s girlfriend testified that he was jealous, rarely let her leave home without him, and often accused her of infidelity. The girlfriend also testified that defendant was physically abusive, and once assaulted her with a knife defendant kept on his side of the bed. Defendant put the knife to his girlfriend’s throat and said: “Cop-calling bitch. If you call the cops again I’ll go to jail, but you’ll go out of here in a fucking body bag.” The girlfriend identified the knife used to kill McCoy as the same knife defendant used to threaten her. The girlfriend left defendant and moved to Missouri less than two weeks before defendant stabbed McCoy in May 2007.
On the day before the fatal confrontation between defendant and McCoy, a friend visited defendant at his home. The friend, Nancy Sisson, testified that defendant was angry about his girlfriend, Robin. Defendant, while throwing a knife against the wall, said that McCoy was “fucking [Robin] for drugs,” and that McCoy “fucked my girl, now I’m going to fuck him.”
The actual stabbing occurred in the early morning hours of May 4, 2007, just after midnight. The confrontation appears to have begun before midnight on the night of May 3.
On the night of the stabbing, McCoy was staying at the apartment of his friend Bernard Crowder, who lived around the corner from defendant. Crowder also knew defendant. McCoy drank beer and socialized with Crowder and Crowder’s neighbor, Donna Wortham. Wortham went to her apartment in the same building complex, and defendant arrived at Crowder’s apartment where McCoy remained.
Crowder was intoxicated and lying on his bed watching television. He heard defendant and McCoy talking in the kitchen. Crowder next heard a “rumbling” from the kitchen and then McCoy ran out of the kitchen, with defendant behind him. McCoy told Crowder: “Unc, that dude cut me.” McCoy and defendant went outside the apartment, and Crowder heard defendant tell McCoy: “You mother fucker, you, I told you I was going to get you back.”
Several of Crowder’s neighbors saw defendant stabbing McCoy outside the apartment. Wortham testified that she saw defendant stab McCoy “a lot” of times, maybe ten or eleven times. McCoy was unarmed and not fighting back. McCoy called to Wortham for help and told her defendant stabbed him. Wortham called 911. Donna Wortham’s daughter also saw the attack, and testified that she heard defendant tell McCoy: “Nigga, you’re not going to get away,” and “You’re going to die.”
Defendant is African-American, as was McCoy.
Sisson testified that she heard yelling and screaming from the apartment and saw McCoy come outside slumped over and holding his chest. She heard defendant arguing with McCoy about “fucking his girlfriend,” and defendant ask McCoy “Do you want a piece of this? Do you want me to stick you with this?” Another neighbor, Thomas Clark, saw defendant stab McCoy “a lot of times,” which he estimated to be between six and twelve times. Clark saw McCoy fall to the ground, and defendant kicked McCoy in the face and ribs and continued to stab him. Defendant was heard asking McCoy: “Was it some good pussy? Was it a good fuck?” As he was stabbing McCoy, defendant also said: “you like that pussy, huh? Well fuck this.” The only thing McCoy said was “Help.”
The police arrived to find defendant holding a knife and McCoy on the ground in a puddle of blood. McCoy appeared to be in extreme pain, and said that defendant stabbed him. The police asked why and McCoy said he did not know, “that [defendant] just attacked him.” The police called paramedics to the scene to help McCoy. As a police officer searched defendant for weapons, defendant (referring to McCoy) asked “Why are you guys helping him?,” and said “Don’t help him, he fucked my bitch.”
The police investigation of Crowder’s apartment found evidence of a struggle and a trail of blood that led from the kitchen, into the living room, past the sofa, and out the front door. The only injuries to defendant were a minor laceration on his leg and a dislocated shoulder. Defendant had a history of shoulder dislocations, and the physician who treated defendant on the night of the stabbing testified that defendant’s shoulder dislocation was consistent with being pushed or shoved to the ground as he held his hand over his head like a quarterback about to throw a football, or a man holding a knife in the air. Defendant’s hands were uninjured, aside from a small abrasion and bruise.
McCoy died at the scene of the stabbing. An autopsy revealed that McCoy died of stab wounds to the chest. McCoy suffered ten knife wounds to his neck, chest, shoulder, back, and arm. Two stab wounds to the chest were lethal: one penetrated the heart and the other fractured a rib and went through the left lung and diaphragm into the stomach. McCoy also suffered several blunt force injuries to his head, chest, and leg, consistent with being kicked.
B. The Defense
Defendant testified in his own defense. Defendant said he and McCoy were “good friends” and remained friends after defendant’s break-up with defendant’s girlfriend. Defendant testified that McCoy bragged about being a drug dealer, doing drive-by shootings, and threatening people “if he didn’t get his.”
On the night of the stabbing, defendant testified that he was at Crowder’s apartment talking to McCoy in the living room about drugs. Defendant had been “drinking throughout the day,” smoking marijuana, and using cocaine. When asked at trial if defendant was feeling the effects of these substances on the night of the stabbing, defendant replied, “A little bit. I was high.”
Defendant also testified that he owed McCoy $50, and defendant was supposed to “work off” the debt by bringing customers to McCoy. According to defendant, the fight occurred because McCoy was displeased with defendant, and the men had a disagreement over drugs and money. McCoy “got smart,” said “fuck you, mother fucker,” and told defendant to get out of the house. Defendant replied “Fuck you too. This ain’t your house, this is Bernard[] [Crowder’s] house.” McCoy pulled a knife from between the sofa cushions and stabbed at defendant’s leg. Defendant grabbed McCoy and the two became engaged in a standing struggle over the knife. McCoy told defendant, “You’re a dead man.” Defendant was scared, and thought McCoy “might do to me what he told me he done to others.”
Defendant managed to get the knife out of McCoy’s hands, cutting his own hands in the process and dislocating his shoulder. McCoy tried to regain the knife. Defendant fell backwards onto the sofa and McCoy came down on top of him in a struggle for the knife. Defendant jabbed at McCoy’s chest three times as defendant fell backward. The men stood up again and continued to fight over the knife. They then “bounced off the wall,” “bounced off the screen door and out into the parking lot area.”
The fight continued outside. Defendant maintained possession of the knife as McCoy hit defendant in the face, and defendant hit him back with his free hand. The men continued to struggle over the knife and fought “like two dogs.” As soon as defendant saw that McCoy “had no fight in him,” defendant “backed off.”
Defendant testified that the neighbors, who said McCoy did not fight back, probably saw only the end of the fight. Defendant denied mentioning his girlfriend by name after the fight, but admitted that he may have made the remarks witnesses attributed to him about McCoy having sex with his girlfriend. Defendant testified that he “might have” told the police “Don’t help him. He [] fucked my bitch” because defendant was “angry” and “in a terrible state of mind.” But defendant insisted he was defending his life against McCoy’s knife attack.
II. DISCUSSION
Defendant contends that the trial court erred in (1) excluding evidence of the victim’s prior convictions for drug and firearm offenses, (2) admitting evidence that defendant previously assaulted his girlfriend with the knife later used to kill the murder victim, (3) failing to instruct the jury to consider the victim’s prior threats and harm to others when evaluating defendant’s claim of self-defense and imperfect self-defense, and (4) failing to instruct the jury to consider defendant’s intoxication in evaluating his self-defense and imperfect self-defense claims. We turn to a discussion of these contentions.
A. Exclusion of victim’s prior convictions
The victim, John McCoy, had four criminal convictions: (1) misdemeanor possession of a switchblade knife in 1992 (§ 653k), (2) felony discharge of a firearm in a grossly negligent manner in 1993 (§ 246.3), (3) misdemeanor violation of a protective order in 1995 (§ 273.6, subd. (a)), and (4) felony drug possession while carrying a loaded firearm in 2003 (Health & Saf. Code, § 11370.1). Defense counsel sought to impeach the credibility of McCoy’s dying declaration (identifying defendant as the stabber) with McCoy’s felony convictions. (Evid. Code, § 788.) The prosecution objected. (Evid. Code, § 352.) The court sustained the objection.
On appeal, defendant changes direction and offers a different ground for admission of McCoy’s convictions. Defendant concedes his identity as the stabber, and makes no effort to renew his trial effort to impeach McCoy’s credibility as a witness with proof of McCoy’s convictions. Instead, defendant argues that McCoy’s convictions should have been admitted to prove McCoy’s character for violence, in support of defendant’s claim of self-defense against McCoy’s aggression. (Evid. Code, § 1103, subd. (a)(1).)
The argument is not cognizable on appeal because defendant may not assert a wholly new ground for admission of evidence that was never presented to the trial court. A party may not claim that the trial court erred in excluding evidence unless “[t]he substance, purpose, and relevance of the excluded evidence was made known to the court” by an offer of proof or other means. (Evid. Code, § 354, subd. (a).) Defense counsel was explicit in offering the evidence of McCoy’s convictions for a sole purpose: impeachment of McCoy’s dying declaration. (Evid. Code, § 788.) Defendant may not now, after retaining different counsel, advocate a different basis for admitting McCoy’s convictions.
In anticipation of our rejection of his belated claim for admission of evidence, defendant argues that “trial defense counsel was ineffective for his failure to articulate the correct reason for introducing the priors.” This argument also fails.
“In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it ‘fell below an objective standard of reasonableness [¶]... under prevailing professional norms.’ [Citations.] Unless a defendant establishes the contrary, we shall presume that ‘counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.’ [Citation.] If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 745-746.)
There is no support for defendant’s claim that trial counsel was incompetent for failing to offer McCoy’s criminal convictions as proof of McCoy’s violent character. (Evid. Code, § 1103, subd. (a)(1).) Defense counsel was well aware that defendant could have introduced evidence of McCoy’s character, as the matter was addressed in the prosecutor’s trial brief. Defense counsel appears to have made a strategic decision not to introduce such evidence, and sought to introduce McCoy’s convictions for the limited purpose of witness impeachment. The strategy was reasonable. An attack upon McCoy’s character would have opened the door to rebuttal evidence and, critically, to unfettered evidence of defendant’s character for violence. (Evid. Code, § 1103, subds. (a)(1), (b).) Defendant has a long and violent criminal history. By foregoing evidence of McCoy’s criminal past, the defense avoided evidence of defendant’s criminal past, which was significantly more violent than McCoy’s. While some evidence of defendant’s past criminality was introduced at trial for other purposes, far more evidence would have been admitted had the defense offered McCoy’s criminal convictions as proof of McCoy’s violent nature.
Even if trial counsel erred in failing to introduce evidence of McCoy’s criminal convictions to support a claim of self-defense against McCoy’s aggression, the error was without prejudice to defendant. The evidence of defendant’s guilt for deliberate and premeditated murder is overwhelming. The only evidence of self-defense is defendant’s unconvincing testimony, which is sharply contradicted by the physical evidence and multiple eyewitnesses.
Defendant testified that the fight was a fight over drugs and money, not defendant’s girlfriend, and that the fight started in the living room and continued outside after McCoy pulled a knife on defendant, and defendant wrestled the knife away from McCoy. But a trail of blood led from the kitchen, through the living room to outside. And defendant’s hands, which he said he cut in his struggle with McCoy, were uninjured aside from a small abrasion and bruise, as photographs demonstrate. An eyewitness, Crowder, heard the fight start in the kitchen and saw defendant chase McCoy from the house. Outside, several witnesses saw defendant viciously attack a defenseless McCoy, and heard defendant make obscene references to McCoy’s alleged sexual relations with defendant’s girlfriend.
Defendant concedes, on appeal, that the evidence of self-defense was “thin” concerning the fight outside the apartment (observed by several witnesses to be a brutal unilateral attack on McCoy) but insists that there was a “solid case for self-defense during the first part of the fight inside the apartment” (where there was only one witness, Crowder). Defendant maintains that the first part of the fight is the critical part, because that is when at least one of the lethal chest stabbings was inflicted, given testimony that McCoy fled the apartment holding his chest. Defendant reasons: “For the actions outside the apartment, no matter how bad they looked to the neighbors, [the actions] no longer mattered because McCoy had already been fatally wounded.” This is a seriously flawed argument.
First, there is no proof that one of the two lethal chest stabbings was inflicted inside the apartment. A couple of the witnesses saw only that McCoy was holding his chest as he left the apartment—they did not see stab wounds. Defendant testified that he jabbed the knife at McCoy’s chest inside the apartment, but did not know if he made contact with McCoy. Witnesses outside the apartment saw multiple stabbings inflicted on McCoy. These could have been the fatal stabbings.
Second, defendant is wrong to argue that there is a “solid case for self-defense during the first part of the fight inside the apartment,” where the supposedly fatal stabbings occurred. As noted above, the physical evidence (the blood trail and defendant’s scant injuries) refutes defendant’s testimony of self-defense, as does Crowder’s testimony that he heard defendant and McCoy talking in the kitchen, followed by the sound of “rumbling” from the kitchen and McCoy’s flight from the kitchen, with defendant pursuing him. Moreover, a witness outside the apartment, Sisson, heard yelling and screaming from the apartment and saw McCoy come outside. She heard defendant arguing with McCoy about “fucking his girlfriend,” and defendant ask McCoy “Do you want a piece of this? Do you want me to stick you with this?” Defendant’s effort to separate the events inside the apartment (where McCoy allegedly initiated a knife attack) and the events outside the apartment (where defendant allegedly carried his reprisal too far) is unsupported by the evidence. The evidence, fairly construed, provides overwhelming proof of murder. Any deficiency of trial counsel in failing to introduce evidence of McCoy’s criminal convictions was not prejudicial.
Finally, in a related argument, defendant contends that the prosecutor engaged in misconduct in his closing argument to the jury by stating that there was no evidence that McCoy had a violent history despite knowledge of McCoy’s prior convictions. Defendant overstates the prosecutor’s comments. The prosecutor did not say that McCoy was nonviolent; he sought only to refute defense counsel’s unsupported averments about McCoy. Defense counsel argued to the jury that McCoy was a drug dealer and gang member who “threatened people in the past who haven’t paid,” and that defendant was forced to kill McCoy in self-defense because McCoy was a “homicidal maniac attacking him.” Defense counsel argued: “Now it doesn’t matter that we haven’t proved up whether or not Mr. McCoy actually did those things, whether he was actually in a gang. What matters is did he have—did my client have a reasonable belief as to what was in his head at that time? And you have a person who’s a drug dealer saying he’s a gang member moving a lot of drugs around.” In fact, defendant had testified that McCoy was a drug dealer who had threatened people in the past “if he didn’t get his,” but never testified that McCoy was a gang member.
The prosecutor pointed out this discrepancy between defense counsel’s argument and the evidence, and also challenged counsel’s characterization of McCoy as a homicidal maniac. The prosecutor argued: “Ladies and Gentlemen, as the defense conceded to you that they have no proof, not one shred of evidence did they present to you that Mr. McCoy is a gang member or some type of homicidal maniac drug enforcer. There’s no evidence of that.” The argument was proper. Defendant never testified that McCoy was a drug dealer, and the prosecutor was entitled to argue that there was no evidence that McCoy was a homicidal maniac drug enforcer. McCoy’s prior criminal convictions do not constitute unadmitted evidence on this point that the prosecutor suppressed, as defendant argues on appeal. Years before the stabbing, McCoy had been convicted of felony discharge of a firearm in a grossly negligent manner and felony drug possession while carrying a loaded firearm. Neither of these convictions proves McCoy to be a homicidal maniac drug enforcer.
There was no prosecutorial misconduct. In closing arguments to juries, prosecutors are entitled to vigorously argue their cases and “have wide latitude to draw inferences from the evidence presented at trial.” (People v. Hill (1998) 17 Cal.4th 800, 823.) “ ‘ “ ‘It is the province of a district attorney to state to a jury the various conclusions that he draws from the evidence, and to make it clear to the jury what conclusions in his opinion should be drawn from the evidence introduced, so long as he keeps within the scope of conclusions which may properly be drawn.’ [Citations.] ‘The right of counsel to discuss the merits of a case, both as to the law and facts, is very wide, and he has the right to state fully his views as to what the evidence shows, and as to the conclusions to be fairly drawn therefrom. The adverse party cannot complain if the reasoning be faulty and the deductions illogical, as such matters are ultimately for the consideration of the jury.’ ” ’ ” (People v. Woods (1991) 226 Cal.App.3d 1037, 1056.)
B. Admission of defendant’s prior knife assault
The prosecution introduced evidence that defendant assaulted his girlfriend, Robin, with a knife—the knife later used to kill McCoy. As the prosecutor explained in pretrial proceedings on the admissibility of the evidence, defendant’s hostile relationship with Robin and possession of the knife before the killing were relevant to prove defendant’s motive, intent, preparation, and plan. (Evid. Code, § 1101, subd. (b).) The evidence supported the prosecution’s theory that defendant killed McCoy out of revenge and jealousy over McCoy’s believed sexual relations with Robin, and that defendant brought the knife to Crowder’s apartment with the premeditated intent to kill McCoy.
On appeal, defendant argues that Robin’s testimony was relevant as to knife possession but was irrelevant and unduly prejudicial as to the assault itself. Defendant thus concedes that Robin was properly permitted to testify that she saw defendant with the knife at home, but maintains that she should not have been permitted to testify that defendant held the knife to her throat and threatened her.
The evidence cannot be parsed so finely. To do so would diminish Robin’s testimony about knife possession, which defendant concedes was fully admissible. Her remembrance and identification of the knife were bolstered by her testimony that she had a close-up, and frightening, experience with the knife. Had the assault been excluded from Robin’s testimony, the jury might well have doubted her claimed ability to identify the murder weapon as defendant’s knife. We recognize that evidence of the assault bore the danger of prejudice, but cannot say that the trial court abused its discretion in concluding that the probative value of the evidence outweighed the danger of undue prejudice. (Evid. Code, § 352.)
C. Jury instruction: antecedent threats in self-defense and imperfect self-defense
The trial court instructed the jury on the elements of murder and manslaughter and specifically instructed the jury that a defendant is not guilty of any homicide if he acted in lawful self-defense (reasonably believed that he was in imminent danger of being killed or suffering great bodily injury and used reasonable force to defend against the danger) or guilty of manslaughter alone (not murder) if he acted in imperfect self-defense (actually believed he was in danger and needed to use deadly force in defense, but the belief was unreasonable). (CALCRIM Nos. 500, 505, 520, 521, 522, 570, 571.) The form jury instructions on self-defense and imperfect self-defense include an optional paragraph on antecedent threats that defendant contends should have been read to the jury here. The antecedent threat instruction tells jurors: “If you find that the defendant knew that” the victim “had threatened or harmed others in the past, you may consider that information” in evaluating defendant’s beliefs. (CALCRIM Nos. 505, 571.) On appeal, defendant points out that he testified at trial that the victim McCoy bragged about doing drive-by shootings and threatening people, and that this information was in his mind when McCoy attacked him with a knife. According to defendant, the presence of this evidence required the court, on its own initiative (sua sponte), to instruct the jury to consider the alleged antecedent threats in evaluating defendant’s claimed belief in the need for self-defense.
Defendant is mistaken in arguing on appeal that “[t]he significance of antecedent threats in a self-defense case is a general principle of law, warranting sua sponte instruction.” The briefing on appeal by defendant (and the People) fails to acknowledge authority directly holding that the trial court is not obligated to give an antecedent threats instruction sua sponte. (People v. Garvin (2003) 110 Cal.App.4th 484, 488-489 (Garvin).)
In Garvin, the defendant claimed that he acted in self-defense in assaulting a deputy sheriff while incarcerated, and testified that the deputy had previously beaten him for no reason. (Garvin, supra, 110 Cal.App.4th at pp. 486-488.) On appeal, defendant claimed that the trial court had a sua sponte duty to instruct the jury to consider the victim’s alleged antecedent assaults in evaluating the reasonableness of defendant’s conduct. (Id. at p. 486.) The appellate court rejected the contention. (Id. at pp. 488-489.) The court noted that a trial court must instruct on the general principles of law relevant to the issues raised by the evidence, but need not instruct on specific points or special theories which might be applicable to a particular case. (Ibid.) The court held that the trial court satisfied its duty by instructing on the general principles of self-defense, and was not obligated to instruct on antecedent threats or assaults absent a request by defense counsel. (Ibid.) As stated by the Garvin court: “The issue of the effect of antecedent assaults [by the victim] against defendant on the reasonableness of defendant’s timing and degree of force highlights a particular aspect of this defense and relates it to a particular piece of evidence. An instruction on the topic of antecedent assaults is analogous to a clarifying instruction. It is axiomatic that ‘[a] defendant who believes that an instruction requires clarification must request it.’ [Citation.] Therefore, we conclude that this is a specific point and is not a general principle of law; the trial court was not obligated to instruct on this issue absent request.” (Id. at p. 489.) We agree with Garvin’s reasoning.
In anticipation that we would find no sua sponte duty upon the trial court to instruct on antecedent threats in a self-defense case, defendant argues that his trial attorney rendered ineffective assistance of counsel in failing to request such an instruction. We reject this argument as well. The decision whether to request a pinpoint instruction is a tactical decision, and “ ‘[w]e accord great deference to counsel’s tactical decisions.’ ” (People v. Jones (2003) 29 Cal.4th 1229, 1254.) “ ‘[C]ourts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.’ ” (Ibid.)
We find nothing unreasonable in defense counsel’s decision not to request a pinpoint instruction on antecedent threats here, where the evidence of such threats was both weak and unnecessary to the defense. Evidence of McCoy’s prior threats against others rested on defendant’s vague testimony alone, and that testimony did little to show that defendant feared McCoy given the undisputed fact that defendant maintained his friendship with McCoy despite receiving information of McCoy’s threatening behavior. McCoy’s threats against others were also unnecessary to establishing an actual or reasonable belief in the need for self-defense. Evidence of antecedent threats becomes significant where the victim’s hostile conduct is ambiguous, and the threats add support to a defendant’s claim that he actually and reasonably believed that the victim posed a danger and that deadly force was necessary to avert the danger. Here, there can be no doubt that McCoy posed a life-threatening danger if defendant’s account were believed. According to defendant, McCoy attacked him with a knife and told defendant, “You’re a dead man.” Anyone would be entitled to self-defense under these circumstances regardless of any antecedent threats. The existence of antecedent threats was unnecessary to the defense.
For similar reasons, we conclude that any error by defense counsel in not requesting an instruction on antecedent threats was not prejudicial. The issue at trial was not whether defendant’s conduct and beliefs were reasonable. The jury was presented with two scenarios: either an unprovoked attack upon McCoy (as the prosecution claimed) or self-defense against a knife attack by McCoy (as the defense claimed). Regardless of any antecedent threats, one is clearly entitled to defend against a knife attack accompanied by a threat to kill, which is the story defendant told. The jury obviously rejected defendant’s account of the events in convicting him of murder. The omission of an antecedent threats instruction was irrelevant to the conviction.
D. Jury instruction: voluntary intoxication in self-defense and imperfect self-defense
Defendant testified that, on the day of the stabbing, he had been “drinking throughout the day,” smoking marijuana, and using cocaine. When asked at trial if defendant was feeling the effects of these substances on the night of the stabbing, defendant replied, “A little bit. I was high.”
The court instructed the jury on voluntary intoxication and its effect on homicide crimes: “You may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill, or the defendant acted with deliberation and premeditation.... [¶]... [¶] You may not consider evidence of voluntary intoxication for any other purpose.” (CALCRIM No. 625.) On appeal, defendant argues that the instruction was erroneous because intoxication is relevant to deciding whether a defendant believed he was in danger and needed to use deadly force to avert the danger, but the instruction effectively precluded the jury from considering intoxication for purposes of self-defense and imperfect self-defense.
We are not persuaded that the instructions, read as a whole, precluded the jury from considering defendant’s intoxication in evaluating his self-defense theories. In addition to the form instruction quoted above, the jury was also told that intoxication “can negate express malice aforethought.” An unlawful killing without malice is manslaughter. (§ 192.) “Imperfect self-defense obviates malice because that most culpable of mental states ‘cannot coexist’ with an actual belief that the lethal act was necessary to avoid one’s own death or serious injury at the victim’s hand.” (People v. Rios (2000) 23 Cal.4th 450, 461, italics omitted.) The jury was advised, therefore, that voluntary intoxication could be used to determine if defendant killed McCoy with the state of mind (malice) necessary for conviction for murder. While not directly told that voluntary intoxication may affect a defendant’s belief in the need for self-defense, the jury was told that intoxication may negate malice and thus negate an essential element of murder. (See People v. Boyer (2006) 38 Cal.4th 412, 468 & fn. 39 [jury instruction requiring jury to consider effect of defendant’s intoxication in forming specific intent to kill did not preclude jury from concluding that intoxication affected defendant’s belief in need for self-defense].)
We also find no prejudice even if the jury understood the instructions to preclude it from considering intoxication when evaluating defendant’s self-defense claims. Intoxication may cause a person to misperceive a risk, but that was never an issue here, where there can be no question that McCoy posed a real risk to defendant if defendant’s account of the events were believed by the jury. Defendant testified that McCoy attacked him with a knife and said, “You’re a dead man.” The jury did not need to consider if defendant’s intoxication may have led him to misperceive this situation as life-threatening; if the jury were to believe defendant’s account, the threat is plain. The jury, however, rejected defendant’s testimony that he was attacked by McCoy and found that defendant killed McCoy with premeditation. There is, in fact, overwhelming evidence of defendant’s guilt for deliberate and premeditated murder, as discussed in detail above. Any deficiency in the jury instruction on intoxication was not prejudicial.
II. DISPOSITION
The judgment is affirmed.
We concur: Ruvolo, P. J., Rivera, J.