Opinion
F073733
02-25-2020
THE PEOPLE, Plaintiff and Respondent, v. JOAQUIN MIGUEL BALASSA, Defendant and Appellant.
Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephanie A. Mitchell and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF156910A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge. Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephanie A. Mitchell and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
After a night of drinking and socializing with four male friends, defendant Joaquin Miguel Balassa beat two of them to death inside his apartment. At trial, defendant testified he acted in self-defense when he awoke to find himself being sodomized by one of the victims while the other victim held him down. The jury rejected defendant's claim of self-defense; convicted him of two counts of willful, deliberate and premeditated murder; and found true the special-circumstance allegations that defendant committed multiple murders. (Pen. Code, §§ 187, subd. (a), 189, subd. (a), 190.2, subd. (a)(3).), Based on the special-circumstances findings, the trial court sentenced defendant to two consecutive terms of life in prison without the possibility of parole. (§ 190.2, subd. (a).)
All further statutory references are to the Penal Code unless otherwise stated.
The Legislature amended sections 189 and 190.2 after defendant was convicted and sentenced, but those amendments are not relevant in this case. (Sen. Bill No. 1437 (Reg. Sess. 2017-2018) ch. 1015, § 3 [§ 189]; Sen. Bill No. 1494 (Reg. Sess. 2017-2018) ch. 423, §§ 42, 43 [§§ 189, 190.2]; Assem. Bill No. 991 (Reg. Sess. 2019-2020) ch. 497, § 192 [§ 189].)
On appeal, defendant advances six claims. He argues that the prosecutor improperly used his exercise of his constitutional rights against him at trial, resulting in the violation of his right to due process; that the trial court committed error in its instruction to the jury pursuant to CALCRIM No. 571 (imperfect self-defense); and that the trial court erred in failing to instruct the jury with CALJIC No. 5.10 (resisting attempt to commit felony). Defendant also argues that cumulatively, these errors were prejudicial. Finally, defendant claims that one of the two multiple-murder special-circumstance findings must be reversed as duplicative, and that the parole revocation restitution fine imposed under section 1202.45 must be stricken because his sentence does not include the possibility of parole.
The People concede one of the two multiple-murder special-circumstance findings and the parole revocation fine must be stricken, but they otherwise dispute defendant's entitlement to any relief.
We accept the People's concessions and agree that one of the two multiple-murder special-circumstance findings must be stricken as duplicative and that the parole revocation restitution fine must be stricken because defendant is not eligible for parole. We otherwise reject defendant's claims of error and affirm the judgment.
FACTUAL SUMMARY
Some of the background facts summarized herein were supplied by defendant during his testimony and were not disputed.
The crimes in this case occurred in the Kern County city of Tehachapi. The victims, Guy K. and Jose F., were a gay couple in their 50's. Guy and Jose met defendant approximately six months before their murders when they came into the home improvement store where defendant worked. He assisted them at length that day and they returned the next day. One of Guy's and Jose's purchases was a barbecue grill and they mentioned to defendant barbecuing together sometime. During their second trip to the store, they exchanged phone numbers with defendant. Afterward, defendant periodically received a text inviting him to hang out and he viewed Guy and Jose as friends, but the three were never able to line up plans.
On August 31, 2014, defendant spent the afternoon and early evening with his new girlfriend and Luis, one of his two roommates. Shortly before 8:00 p.m., after defendant's girlfriend left to go home, Jose invited defendant by text message to join him and Guy for dinner and drinks at a restaurant in town. Defendant accepted and invited Luis to come along. Defendant and Luis met Guy and Jose at the restaurant sometime after 8:30 p.m.
Defendant lived in a two-bedroom apartment. At the time of the crime, Luis was staying at the apartment and sleeping on the sofa. Defendant's other roommate, who occupied the second bedroom, was out of town at the time of the crime.
Dinner was uneventful and the four men had a good time together. They ate dinner and shared two pitchers of margaritas and two rounds of tequila shots. Defendant and Jose each had an additional tequila shot and the group departed around 10:20 p.m. Defendant and Jose played around in the parking lot having footraces, which Guy took photographs of them on his cell phone. Additional alcohol was purchased at the liquor store near the restaurant and the group went to defendant's apartment. Mario, a friend of defendant's, arrived at the apartment around the same time and joined the group.
Inside, the five men drank whiskey shots and played beer pong. They had a good time and there was no sign of any trouble. At some point, Mario saw defendant go into his bedroom with Guy and Jose. The door to the bedroom was closed and the music was turned up. The three emerged approximately 20 minutes later, and Mario told defendant he was not comfortable and wanted to leave. Mario explained at trial that he preferred partying with both men and women and he was not interested in partying with just men. Mario also testified that defendant had jumped on him at one point without a shirt on and straddled his waist, which made him uncomfortable. Mario departed around 1:00 a.m. and met up with a former girlfriend. He recalled that when he left, Luis was asleep on the sofa and Jose and defendant were talking.
Luis testified that he went to sleep on the sofa because he had to work the next day. Prior to falling asleep, he saw Guy go to defendant's bedroom to sleep. Defendant and Jose were playing beer pong in the kitchen, and Mario was sitting on the sofa next to him. Everyone was having a good time.
Luis later awoke to the sound of a loud argument between defendant and Jose, and he testified that he saw Jose kiss, or attempt to kiss, defendant on the mouth. Luis saw defendant, who was 28 years old and trained in mixed martial arts (MMA) fighting, punch Jose once in the face, knocking Jose unconscious. Defendant then got on Jose's stomach and started punching and elbowing Jose in the face. Luis tried to pull defendant off Jose, but defendant told Luis not to touch him. Defendant continued to hit and kick Jose in the face, and Luis saw Jose's head hit the living room wall, leaving a hole in the drywall. Luis's cell phone was dead, so he left the apartment to get help, telling officers who interviewed him later that he feared for his own safety. During that time, Luis did not see Guy or Mario.
Luis testified he saw Mario run out of the apartment after he awoke, but based on cell phone records, it appears Mario left around 1:00 a.m. and Luis did not flag down an officer until 3:20 a.m.
At approximately 3:20 a.m., Luis approached a police car at a gas station a mile or two away from defendant's apartment. He told the officer he wanted to remain anonymous and he reported a fight at defendant's apartment involving defendant. He also told the officer that three people were at the apartment. The officer wrote down the license plate to Luis's vehicle and radioed a second police officer for backup.
The two officers responded to defendant's apartment to investigate what they thought was a disturbance of the peace. Defendant answered the front door in his boxer shorts. The officers told defendant that neighbors heard arguing and they were checking to see if everything was okay. Defendant told the officers to hold on, and he then shut the door and locked the deadbolt. One of the officers noticed a spot of blood outside the door.
After waiting several minutes, the officers knocked again. Defendant answered the door a second time. He again told them to hang on because he needed to get dressed, and he shut and locked the door. After defendant shut the door, one of officers told the other that when defendant opened the door, she saw broken glass and what appeared to be a large amount of blood in the entryway, leading her to believe someone inside was either seriously injured or dead.
After obtaining a key from the apartment manager, the two officers and a sheriff's deputy who had arrived entered the apartment. They described the scene as very bloody, and they saw Jose, who appeared deceased, on the floor in the living room. They proceeded through the apartment and located Guy, who was also deceased, in the bathtub. Both victims had visibly swollen faces. Officers located defendant lying on his bed in the master bedroom clothed but wet and pretending to be asleep.
Defendant was handcuffed and escorted from the apartment. He repeatedly stated he had been sleeping and asked what was going on. He was escorted to a patrol car without incident, but he resisted the directive to step into the car. After being placed in the patrol car, defendant slipped his handcuffed arms from behind his back to his front, kicked at the windows, told the officers he was going to kill them and referred to one of the officers as Chuck Liddell, an MMA fighter. After he was pepper sprayed, defendant calmed down.
Evidence of defendant's behavior after being escorted out of the apartment was elicited during rebuttal testimony.
At the police station, defendant gave a statement denying involvement in the crimes. A detective asked him, "There's been some—some things being said that maybe there was some—some gay stuff that tried to go on. Maybe someone tried to wake you up in the middle of the night with some gay stuff. We don't know. That's why we wanna talk to you." Defendant denied anything happened and stated that he went out to dinner with his girlfriend, went to bed when he got home and woke up to police "banging on [his] door." He also said that his friends Mario and Luis were over when he went to bed; there were some other people there he did not know but had seen once before; Mario was acting weird that night; and he had always felt Mario was working undercover. Defendant denied knowing the man found on the living room floor, indicated he had not seen any blood on the floor and stated that although he saw the man on his way to answer the door, he did not pay attention because he had "people on [his] floor all the time."
Later that same day defendant also spoke to the media. He denied any involvement in the crimes and again stated he was hanging out with friends, went to sleep and woke up to the police "banging on [his] door." He sent his thoughts and prayers to the victims' families.
II. Defense Case
Defendant testified that he had past training as an MMA fighter and was "decent" at it. He testified that although he kept in shape and retained the techniques he learned, he stopped MMA fighting in 2008, other than one cage fight in 2010. Defendant admitted that he killed Guy and Jose with his bare hands and that he lied about his involvement during his interviews with police and the media on the day of the crimes. He stated he did not tell the truth at the time because he was scared and embarrassed.
Defendant testified that after he and Luis met the victims for dinner on August 31, 2014, the group went back to his apartment and, joined by Mario, had a good time drinking and socializing. Defendant denied he ever retreated to his bedroom with Guy and Jose, but he said he gave them a brief tour of the apartment and showed them where the blankets and pillows were kept because he was more comfortable if they spent the night. Defendant acknowledged he jumped on Mario, but said he jumped on Mario's back and he denied he had his shirt off.
At the times of their deaths, Jose had a blood alcohol level of 0.198 percent and Guy had a blood alcohol level of 0.269 percent, the latter of which the coroner described as "very high," even for someone with a tolerance for alcohol. Defendant's blood was not drawn for testing, but a detective who interviewed him the next morning testified that he smelled of alcohol.
Defendant said he went to bed around 12:30 a.m. and closed his bedroom door. At that time, Luis was still awake, Mario was still there drinking, and Guy and Jose were in the living room. As was his routine, he disrobed entirely and went to sleep. He testified that he awoke in pain as Guy's penis penetrated his anus. As Guy raped him, Jose held him down by the shoulder and licked his face. Defendant testified that he felt shock, panic and fear, and that he was concerned Guy had AIDS because Guy looked sick and he was aware Guy had a lot of medical appointments. Defendant struggled free, got up from the bed and went into the bathroom, which was in the hallway. Defendant testified he told Guy and Jose to leave.
As defined by the Penal Code, defendant was allegedly sodomized by Guy. (§ 286, subd. (a); see § 261 [defining rape as sexual intercourse].) However, because the parties, in the trial court and on appeal, used the term rape, we shall do the same so as to avoid undue confusion.
Guy was thin, and the coroner testified that Guy possibly had chemotherapy and radiation treatment in the past, but there is no evidence that Guy had AIDS.
In the bathroom, defendant turned on the taps in the sink and the bathtub, and he washed his face to remove Jose's saliva. As he prepared to get in the shower, Guy entered the bathroom. Guy approached defendant and tried to grab him by the shoulders. Defendant told Guy to get away and pushed him, causing him to fall into the bathtub. Defendant then grabbed Guy by the throat and hit him approximately 10 times while holding him down. Defendant testified that he possibly squeezed Guy's throat and that he hit Guy as hard as he could. Guy struggled some while defendant was hitting him, but he stayed in the bathtub where he first fell. Defendant washed his hands of Guy's blood and exited the bathroom. As defendant went to enter his bedroom, Jose exited.
Defendant told Jose to leave and they struggled as defendant pushed Jose toward the living room. Jose punched defendant once in the face and defendant hit him back, knocking him to the ground. Defendant could not tell if Jose was conscious or not, but he did not move after the first punch. Defendant hit Jose approximately 10 times as hard as he could, and he testified he may have stated, "[D]on't you ever fucking put your tongue down my throat," but he was referring to when Jose licked his face and attempted to kiss him in the bedroom. Defendant also kicked Jose in the location where there was a hole in the drywall. Defendant felt Luis grab him and he told Luis several times not to touch him. After Luis attempted to intervene and then left, defendant tried to drag Jose out of the apartment.
Afterward, defendant walked outside his apartment and then walked back inside. He dumped water on himself and may have wiped the apartment down. He testified that he also ripped the victims' shirts in anger. Defendant estimated that police arrived 20 minutes later, and he recalled answering the door and pretending nothing had happened.
Defendant denied that he pretended to be asleep when officers entered the apartment and found him on his bed, and he stated that he was no longer angry but he was in shock. He testified he did not want to enter the patrol car and he was upset and agitated, but he denied he screamed, yelled, threatened anyone, stated he wanted to kill the officers, or called anyone Chuck Liddell. He slipped his arms from behind his back to his front because he was in extreme pain from the handcuffs. While he was being transported, he also slipped his arms from behind his back to his front a second time.
Defendant conceded that while being questioned, the detective gave him an opening to explain what happened by asking whether "some gay stuff" that was unwelcome went on, but he lied because he was in denial, ashamed, embarrassed and fearful. Defendant denied that he was attempting to cast suspicion on Mario during his statement to police, but he testified that he felt like Mario had some involvement in the situation, perhaps in egging Jose and Guy on, although he did not see Mario in the apartment after he went to bed that evening.
DISCUSSION
I. Due Process Claim: Use of Defendant's Exercise of Constitutional Rights Against Him
A. Summary of Arguments
Defendant relies on a combination of asserted prosecutorial errors for the proposition that he was denied a fair trial, in violation of his right to due process. On the day of the murders and after being read his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), defendant made a statement to detectives denying knowledge of or involvement in Guy's and Jose's murders. After speaking with detectives for a while, defendant invoked his rights under Miranda and made no further statements to law enforcement. At trial, defendant testified that he killed Guy and Jose, whom he had considered friends, in self-defense after he awoke to find himself being raped and feared he was about to be raped again, a version of events that directly contradicted his prior statement to detectives that he had no knowledge of or involvement in the crimes. On appeal, defendant argues that during trial the prosecutor erred by using his post-invocation silence against him, in violation of his Fifth Amendment right to remain silent and Sixth Amendment right to counsel, and in contravention of Doyle v. Ohio (1976) 426 U.S. 610, 619 (Doyle).
In addition, the prosecutor adduced evidence that defendant was "a little bit reluctant" to cooperate with the request to swab his mouth for DNA until the detective provided him with a copy of the search warrant, after which he complied. Relying on People v. Keener (1983) 148 Cal.App.3d 73, 79 (Keener), defendant argues that the prosecutor improperly used his invocation of his Fourth Amendment right to decline DNA testing in the absence of a warrant against him to show consciousness of guilt.
The People contend that with respect to defendant's Fifth and Sixth Amendment rights, the prosecutor did not stray beyond the bounds of what was permissible given the discrepancies between defendant's statement to detectives and his trial testimony. With respect to defendant's Fourth Amendment rights, the People contend that the prosecutor may rely on a defendant's refusal to cooperate in the face of a court order to demonstrate consciousness of guilt (People v. Ramirez (2006) 39 Cal.4th 398, 456), and that defendant's lack of cooperation in the face of a valid warrant was not an invocation of his Fourth Amendment rights. The People further contend that even if error is assumed, defendant suffered no prejudice under the more stringent standard of review applicable to federal constitutional claims. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
For the reasons set forth below, we agree with the People and reject defendant's claim of reversible error.
B. Post-invocation Silence
1. Forfeiture
As a threshold matter, the People contend that defendant forfeited his claim under Doyle because trial counsel failed to object. (People v. Seumanu (2015) 61 Cal.4th 1293, 1333-1334; People v. Collins (2010) 49 Cal.4th 175, 202-203.) In response, defendant points out that objection would have been futile given that the trial court later condoned the introduction of the evidence. This argument specifically relates to trial counsel's objection and motion for a mistrial made during closing argument, and we note trial counsel's argument indicates there were earlier discussions off the record regarding the matter. Regardless, in this case, we need not determine whether defendant forfeited his claims of error because any error is harmless on this record. (People v. Seumanu, supra, at p. 1334.)
2. Procedural Background
Defendant's claim of error under Doyle arises from the following exchanges, which occurred during the prosecutor's cross-examination of defendant:
"[PROSECUTOR:] ... But your story today—and this is the first time you ever told anybody else, and I'm excluding your attorney. I don't
want to know about any conversations you had with your attorney. [¶] This is the first time that you ever said that Jose attacked you, correct?
"[DEFENDANT:] Yes.
"[PROSECUTOR:] And this is the very, very first time after you've heard all of the evidence in this case presented by the People that Guy [K.] attacked you?
"[DEFENDANT:] Yes."
Subsequently, the prosecutor asked defendant, "And, at that moment in time, your statement again for the very first time, and nobody has heard this before is that [G]uy attacked you in the bathroom?" Defendant's counsel objected to the question as argumentative and the trial court sustained it as to characterization.
During redirect, defense counsel addressed the issue as follows:
"[DEFENSE COUNSEL:] Mr. Balassa, between September 1st, 2014, to today in that year and a half period, when was the first time that year and a half that you had the first, very first opportunity to testify in front of the jury?
"[DEFENDANT:] That would be yesterday.
"[DEFENSE COUNSEL:] That was the very first time, right?
"[DEFENDANT:] "Yes. Yes, ma'am."
Defendant also claims that during closing argument, the prosecutor relied extensively on his post-invocation silence, repeatedly emphasizing his "new" story and relying on a "H[ai]l Mary" analogy.
3. Analysis
a. Alleged Doyle Error
In Doyle, the United States Supreme Court held that the use of a defendant's silence following receipt of Miranda warnings to impeach him violates the due process clause of the Fourteenth Amendment. (Doyle, supra, 426 U.S. at p. 619; accord, Anderson v. Charles (1980) 447 U.S. 404, 408.) "'Doyle rests on "the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial."'" (Greer v. Miller (1987) 483 U.S. 756, 763, quoting Wainwright v. Greenfield (1986) 474 U.S. 284, 291.) Thus, "Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances. But Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all." (Anderson v. Charles, supra, at p. 408.)
Defendant also cites to Massiah v. United States (1964) 377 U.S. 201 (Massiah), which holds that "once a judicial proceeding has been initiated against an accused and the Sixth Amendment right to counsel has attached, any statement the government deliberately elicits from the accused in the absence of counsel is inadmissible at trial against the defendant. [Citations.] To prevail on a Massiah claim, a defendant must show that the police and the informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks. [Citations.] 'Specifically, the evidence must establish that the informant (1) was acting as a government agent, i.e., under the direction of the government pursuant to a preexisting arrangement, with the expectation of some resulting benefit or advantage, and (2) deliberately elicited incriminating statements.'" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 66-67; accord, People v. Keo (2019) 40 Cal.App.5th 169, 185.)
In this case, defendant does not argue, and the record does not indicate, that the government elicited or attempted to elicit incriminating statements from defendant once he invoked his rights under Miranda. Although defendant argues that by using his post-invocation silence against him, "the prosecutor turned Massiah on its head," he also does not argue that the prosecutor used his invocation of the right to counsel against him at trial. Therefore, our analysis is limited to defendant's claim of Doyle error stemming from his post-invocation silence. (See People v. Gamache (2010) 48 Cal.4th 347, 378 [moving party bears the burden of demonstrating error on appeal].)
As defendant concedes, Doyle prohibits the use of his post-invocation silence against him, but it does not shield him from the consequences of advancing inconsistent versions of events. (Anderson v. Charles, supra, 447 U.S. at pp. 407-408; People v. Champion (2005) 134 Cal.App.4th 1440, 1448.) Further, "'[r]ecent fabrication may be inferred when it is shown that a witness did not speak about an important matter at a time when it would have been natural for him to do so ....'" (People v. Riccardi (2012) 54 Cal.4th 758, 803, abrogated on another ground by People v. Rangel (2016) 62 Cal.4th 1192, 1216; accord, People v. Lopez (2013) 56 Cal.4th 1028, 1066, abrogated on another ground by People v. Rangel, supra, at p. 1216.) "'An assessment of whether the prosecutor made inappropriate use of [the] defendant's postarrest silence requires consideration of the context of the prosecutor's inquiry or argument'" (People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1557, quoting People v. Champion, supra, at p. 1448), and the United States Supreme Court has cautioned against too finely parsing cross-examination questions where the questions may be designed "to elicit an explanation for a prior inconsistent statement" rather than "draw meaning from silence" (Anderson v. Charles, supra, at p. 409).
Defendant claims error because, one, the prosecutor improperly questioned him regarding the fact that he did not claim self-defense at any time between his invocation of his rights under Miranda and his testimony at trial and, two, the prosecutor, in referring to his "new" or "H[ai]l Mary" story numerous times, relied extensively on his post-invocation silence during closing argument. The California Supreme Court has recognized that questions or arguments that focus on a defendant's silence between his pre-invocation statement and trial may run afoul of Doyle (People v. Belmontes (1988) 45 Cal.3d 744, 786, overruled on another ground in People v. Cortez (2016) 63 Cal.4th 101, 118), while the United States Supreme Court has cautioned against attempting to "bifurcate[] so neatly" a prosecutor's questions where the defendant has made inconsistent statements (Anderson v. Charles, supra, 447 U.S. at p. 408; accord, People v. Collins, supra, 49 Cal.4th at p. 204).
Here, rather than specifically confining the emphasis to defendant's failure to mention self-defense in his statement to the detectives, the prosecutor emphasized during questioning that defendant was claiming self-defense for the first time at trial. With respect to closing argument, although we reject defendant's claim that the prosecutor's reference to his new story and a "H[ai]l Mary" defense were comments on his post-invocation silence, the prosecutor did, in part, draw the jury's attention to the passage of one and one-half years between defendant's first story and his second story. We need not decide, however, whether the prosecutor skirted, or even crossed over the line into, Doyle error (Anderson v. Charles, supra, 447 U.S. at p. 408; People v. Collins, supra, 49 Cal.4th at p. 204), because if we assume error, it was harmless in this case.
We note that in arguing error, defendant claims People v. Farris (1977) 66 Cal.App.3d 376 controls. We find Farris of no assistance to defendant because while the Court of Appeal found that some of the prosecutor's questions were improper under Doyle, it concluded, as we do here, that the error was harmless. (Farris, supra, at p. 390.)
b. Any Error Harmless
1) Standard of Review
State law errors are reviewed under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 837 (Watson), which requires a determination "whether there is a 'reasonable probability' that a result more favorable to the defendant would have occurred absent the error." (People v. Aranda (2012) 55 Cal.4th 342, 354.) Where, as here, a federal constitutional error is claimed, the standard articulated in Chapman applies and "[w]e must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error." (People v. Merritt (2017) 2 Cal.5th 819, 831, citing Neder v. United States (1999) 527 U.S. 1, 18; accord, People v. Gonzalez (2012) 54 Cal.4th 643, 663.) "'"To say that an error did not contribute to the ensuing verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record." [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is "whether the ... verdict actually rendered in this trial was surely unattributable to the error." [Citation.]'" (People v. Pearson (2013) 56 Cal.4th 393, 463.)
2) No Prejudice Shown
Before he invoked his rights under Miranda, defendant denied any knowledge of or involvement in the crime. Defendant's subsequent claim at trial that he acted in self-defense directly contradicted his prior statement, which required defendant and his trial counsel to, one, address why he lied to detectives despite being asked whether some unwelcome sexual activity had occurred and, two, attempt to convince the jury that despite lying previously, he was telling the truth at trial. That defendant told two starkly contrasting versions of events that could not be reconciled significantly damaged his credibility and undermined his claim that he had been victimized and, fearing further attack, acted in self-defense.
The prosecutor was entitled to and did use defendant's prior inconsistent statement, including his failure to mention any need for self-defense to detectives, to impeach his credibility as to his self-defense claim at trial. Therefore, to the extent the prosecutor arguably also drew the jury's attention, impermissibly, to defendant's failure to claim self-defense during the period of post-invocation silence, such evidence was cumulative in nature. Put simply, the damage to defendant's credibility was inflicted not by any reference to his post-invocation silence, but by the starkly contrasting versions of events and his failure to tell detectives he had been attacked and feared further attack. (People v. Collins, supra, 49 Cal.4th at p. 204.)
Furthermore, defendant conceded that although Guy struggled, Guy stayed in the tub where he first fell while defendant held him down by the throat and hit him as hard as defendant could, and that after defendant incapacitated Jose with the first punch, he continued to hit Jose as hard as he could. The evidence reflects that both men were brutally beaten to death. The coroner testified that Guy suffered approximately 20 to 30 blows to his left side and chest, a minimum of 7 to 10 blows to his face, including one fracture so severe the bone caved in, and unusual bruising to his lips consistent with smothering. Jose suffered a minimum of 7 to 10 blows to his face, resulting in fractured bones; defendant kicked Jose in the head so hard that his head made a hole in the drywall; and Jose had severe bleeding near his brain stem and a neck compression injury, either one of which could have caused his death.
The jury, after requesting further instruction on the meaning of "'the test [for deliberation and premeditation] is the extent of the reflection, not the length of time'" and a readback of the coroner's testimony, found the murders of Jose and Guy premeditated, evidencing "a complete rejection of the evidence on which [the] defendant relied to establish self-defense." (People v. Crandell (1988) 46 Cal.3d 833, 874, disapproved on another ground by People v. Crayton (2002) 28 Cal.4th 346, 364-365.) Under the aforementioned circumstances, to the extent the prosecutor's questions and argument treaded into the territory of defendant's post-invocation silence, the harm, if any, was negligible.
Defendant's reliance on People v. Schindler (1980) 114 Cal.App.3d 178 (Schindler) for the contrary proposition is misplaced. The defendant in Schindler, who shot and killed her husband, was charged with and convicted of second degree murder. (Id. at p. 181.) The defense presented "extensive evidence" on the issues of diminished capacity and self-defense, and "[n]umerous witnesses ... testified that [the] defendant was a passive, gentle, dependent, severely depressed woman who was afraid of her domineering, explosive, irrationally hostile husband." (Ibid.) Moreover, the victim had killed his previous wife while they were divorcing, which he boasted about, and he enjoyed frightening the defendant. (Ibid.)
The defendant invoked her rights under Miranda and, during trial, the prosecutor used her silence and her desire to hire the specific attorney who prosecuted the victim for the death of his first wife against her. (Schindler, supra, 114 Cal.App.3d at pp. 183-184.) The Court of Appeal found that "[t]he prosecution not only impermissibly introduced evidence concerning [the] defendant's exercise of her right [to remain silent] but also affirmatively used this evidence in argument to convey the impression that her defense of a 'panic state' was fabricated" (id. at p. 186), and the prosecution also impermissibly used "her choice of defense attorney to impeach her and rebut her defense of diminished capacity" (id. at p. 187). The court then concluded the errors were prejudicial, explaining, "The only issue at trial was [the] defendant's intent and mental capacity at the time of the commission of the offense. The defense evidence was substantial. The rebuttal evidence directly attacked her defense, and the prosecutor's argument that the evidence showed she was fabricating her 'panic' state was most prejudicial. Furthermore, the fact that the jury deliberated 22 hours before reaching a verdict underscores the closeness of the case and the crucial nature of the constitutional violations." (Id. at p. 190.)
Schindler is distinguishable. The defendant there did not make inconsistent statements that were used against her, the prosecutor used her silence and her retention of a specific defense attorney to affirmatively attack the credibility of her defense, and she was not charged with premeditated murder. Here, as discussed, while the prosecutor emphasized that defendant was claiming self-defense for the first time at trial, his self-defense claim was undercut by his contradictory statement to detectives, which permitted the prosecutor both to elicit evidence that defendant at no time on the morning of the crimes informed anyone—his sleeping roommate, a 911 operator, the officers who responded to his apartment or the detectives who interrogated him—that he acted in self-defense and to impeach him with his inconsistent accounts. The prosecutor also did not use defendant's exercise of his constitutional rights against him affirmatively, as did the prosecutor in Schindler.
Accordingly, we find defendant's reliance on Schindler unpersuasive, and we conclude that defendant was not prejudiced by any arguable error under Doyle.
C. Lack of Cooperation with DNA Collection
1. Background
Relatedly, defendant argues that because he had a right under the Fourth Amendment to refuse "what he believed to be a warrantless [DNA] search," the prosecutor erred in using his exercise of that right against him. (Keener, supra, 148 Cal.App.3d at pp. 78-79; accord, People v. Wood (2002) 103 Cal.App.4th 803, 808-809.) For the reasons that follow, we agree with the People that no error occurred.
As circumstantial evidence of consciousness of guilt, the prosecutor sought to introduce evidence of defendant's initial lack of cooperation with Sergeant Hubbard's request to submit to a DNA test, for which Hubbard had a warrant. Prior to trial, defense counsel argued that the assertion of a right does not demonstrate consciousness of guilt. After holding a hearing under Evidence Code section 402, the trial court ruled that the evidence had some relevance to consciousness of guilt and any prejudice was minimal given that defendant cooperated with the test.
During direct examination, the prosecutor questioned Sergeant Hubbard as follows:
This case was litigated by two prosecutors, one of whom examined Sergeant Hubbard and the other of whom examined defendant.
"[SERGEANT HUBBARD:] "I explained to him that we were going to take a buccal swab and some swabs from his body. He was a little bit reluctant to allow me to do that, so I presented him with a search warrant that I had authored.
"[PROSECUTOR:] In addition to allowing you to take a buccal swab, did that search warrant authorize you to take photographs of the defendant as well?
"[SERGEANT HUBBARD:] Yes.
"[PROSECUTOR:] And did you actually allow the defendant to read that search warrant?
"[SERGEANT HUBBARD:] I did.
"[PROSECUTOR:] Did you observe him looking at it?
"[SERGEANT HUBBARD:] Yes.
"[PROSECUTOR:] "For how long?
"[DEFENSE COUNSEL]: Objection. Relevance.
"THE COURT: Well, I will overrule it. I don't know if you can answer that. [¶] How long do you think he was looking at it?
"[SERGEANT HUBBARD]: I don't know if I could give a time. He appeared to be reading it. It was—I don't have a copy of it in front of me. I believe it was maybe three pages, a decent amount of time, but not too long.
"[PROSECUTOR:] Now, after reading the search warrant, did the defendant's demeanor change at all?
"[SERGEANT HUBBARD:] I don't know if I would classify.
"[DEFENSE COUNSEL]: I would object, Your Honor. Relevance. In limine motions.
"THE COURT: No, I'm going to overrule it. I will overrule it. Do you understand the question?
"[SERGEANT HUBBARD]: I do, Your Honor.
THE COURT: All right. Go ahead. You can answer it.
"[SERGEANT HUBBARD]: I don't believe his demeanor changed. His level of cooperation might have changed or varied slightly.
"[PROSECUTOR:] In which way?
"[SERGEANT HUBBARD:] He complied with—with the search warrant."
Subsequently, the prosecutor questioned Sergeant Hubbard regarding his collection of DNA from Luis as follows:
"[PROSECUTOR:] ... Can you describe [Luis's] demeanor when meeting with him?
"[SERGEANT HUBBARD:] He was very cooperative.
"[PROSECUTOR]: How so?
[SERGEANT HUBBARD:] Everything I asked him to do, he did. He offered to provide statements. He offered to do anything that I had asked him to do.
"[PROSECUTOR:] Did you have to show [Luis] a search warrant?
"[DEFENSE COUNSEL]: Objection, Your Honor. Relevance.
"THE COURT: Yeah, I will sustain the objection, so I will sustain the objection.
"[PROSECUTOR]: Understood."
During cross-examination of defendant, the prosecutor asked the following questions:
"[PROSECUTOR:] They collected the DNA from you, correct?
"[DEFENDANT:] Yes.
"[PROSECUTOR:] But only after you looked at the search warrant, correct?
"[DEFENDANT:] Yes.
"[PROSECUTOR:] "Would it be fair to say that you knew there would be a good possibility that it would be one or both of the victims' DNA on some part of your body or your clothing, right?
"[DEFENDANT:] I don't know.
"[PROSECUTOR:] Okay. And that's why you initially—until they showed you the search warrant, you didn't really want to cooperate with giving the DNA sample; is that correct?
"[DEFENSE COUNSEL]: I'm going to object as treading on in limine motions.
THE COURT: No, I'm going to overrule it. So do you understand the question?
"[DEFENDANT]: No.
"[PROSECUTOR:] Okay. Did you believe at that moment in time that there was a possibility—again. I'm talking about what you were thinking that either Guy [K.] or Jose [F.]'s] DNA would be either on you or on your clothing?
"[DEFENDANT:] I don't know.
"[DEFENSE COUNSEL]: That was asked and answered, Your Honor, that question.
"THE COURT: I didn't think it was.
"[PROSECUTOR]: I didn't think it was either.
"THE COURT: If it was, I apologize. I don't remember it, [defense counsel], and I will let him answer. What was the answer, [defendant]?
"[DEFENDANT]: I don't remember.
"THE COURT: I don't remember. [¶] Go ahead. Ask another question.
"[PROSECUTOR:] Why was it that you didn't want to give the DNA sample until you saw the search warrant?
"[DEFENSE COUNSEL]: Objection. Relevance. It's in limine motions.
"THE COURT: Go ahead. You can answer the question.
"[DEFENDANT]: I didn't like the way I was being treated.
"[PROSECUTOR:] So you thought you were being treated unfairly at that point in time?
"[DEFENSE COUNSEL]: Objection, Your Honor. That misstates the evidence.
"[PROSECUTOR]: Well, I'm asking a question. It's a new topic.
"THE COURT: It's a question relative to the last answer. I will overrule it. [¶] Go ahead. You can answer that.
"[DEFENDANT]: Nothing fairly. I just didn't feel like they were treating me.
"[PROSECUTOR:] Would it be fair to say at this point in time, you didn't give them a lot of information to go on?
"[DEFENDANT:] Yes.
"[DEFENSE COUNSEL]: Objection. Argumentative.
"THE COURT: It does appear to be argumentative, so I'm going to sustain the objection.
"[PROSECUTOR:] So at this point in time, you hadn't given a single officer any information to believe that you were the victim of a crime?
"[DEFENDANT:] No, sir."
2. No Error
In Keener, cited by defendant in support of his claim of error, an underage teenager reported that the defendant sexually assaulted her, and police went to his apartment to discuss the alleged incident with him. (Keener, supra, 148 Cal.App.3d at p. 76.) The defendant refused to let police enter after an officer declined to tell him whether the incident involved a rape and he refused to discuss the incident with them. (Ibid.) After an officer spent an hour trying to convince the defendant to open the door, unsuccessfully, the SWAT team arrived and spent three and one-half hours negotiating with the defendant before he surrendered. (Ibid.) Officers then searched the apartment for a second person and, finding no one, exited. (Ibid.) Subsequently, and still without a warrant, another officer entered again to retrieve a gun that was spotted during the first search. (Id. at pp. 76-77.)
During trial, the prosecutor extensively detailed what the Court of Appeal "characterized as a siege of [the] defendant's apartment" for the purpose of demonstrating consciousness of guilt. (Keener, supra, 148 Cal.App.3d at p. 78.) The court reversed the judgment, explaining, "Admission of this questionably relevant evidence violated the privilege to be free from comment upon the assertion of a constitutional right. (See Jenkins v. Anderson (1980) 447 U.S. 231; Doyle[, supra,] 426 U.S. [at p.] 619; Griffin v. California (1964) 380 U.S. 609.) Although an individual's refusal to consent to a warrantless entry of his residence may be open to various interpretations and is not encouraged, the assertion of the right itself cannot be a crime nor can it be evidence of a crime. [Citations.] [¶] Presenting evidence of an individual's exercise of a right to refuse to consent to entry in order to demonstrate a consciousness of guilt merely serves to punish the exercise of the right to insist upon a warrant. It is of no consequence that police had a right to enter without a warrant here, nor does it matter that [the] defendant spoke to the police during the siege. 'The right to refuse [entry] protects both the innocent and the guilty, and to use its exercise against the defendant would be, as the court said in Griffin, a penalty imposed by courts for exercising a constitutional right.'" (Id. at pp. 78-79; accord, People v. Wood, supra, 103 Cal.App.4th at pp. 808-809 [it was harmless error under Keener to admit evidence that the defendant refused to permit an officer to enter his property without a warrant for the purpose of investigating an animal abuse complaint].)
The facts in this case are readily distinguishable from those in Keener. For one, notwithstanding defendant's contrary argument, it is not clear from the record that defendant's initial lack of cooperation was related to an invocation or attempted invocation of rights under the Fourth Amendment. Although Sergeant Hubbard showed defendant the search warrant, there is no evidence that defendant asked to see a warrant or otherwise mentioned a warrant; defendant was also uncooperative while being photographed, which occurred prior to the DNA testing; and related to the DNA collection, defendant testified at trial that he did not like how he was being treated. Moreover, unlike in Keener, the prosecutor in this case spent very little time overall on the issue of defendant's response to the DNA test request and, therefore, the evidence that he was initially uncooperative and then cooperative after he saw the search warrant played an insignificant role at trial. (Keener, supra, 148 Cal.App.3d at p. 78.)
Finally, critically and in contrast with Keener, the issue here was not whether defendant killed the victims but why he did so. (Keener, supra, 148 Cal.App.3d at p. 77.) The prosecutor did not mention the search warrant at all during closing argument and instead connected the issue of defendant's uncooperativeness to his desire to preserve the story he told that day; that is, that the crimes occurred while he was asleep and he was not involved. To that end, the prosecutor argued, "He's somewhat uncooperative in giving DNA. [¶] Now, it's common sense knowledge. We all kind of know DNA. We use it to identify people. And he's going with it wasn't me, so, no, I don't want DNA testing, because that might break[]down my story. That might damage my claim [of], it wasn't me, so he doesn't want to give it and he reiterates that defense with Sergeant Hubbard."
For these reasons, we are not persuaded by defendant's claim that his uncooperativeness was used against him in a manner that punished him for invoking his constitutional rights. Furthermore, even if we assumed constitutional error for the sake of argument, given the overall insignificance of the evidence, his admission that he caused Guy's and Jose's deaths, and the jury's premeditation finding, the verdict in this case "'"was surely unattributable to the error."'" (People v. Pearson, supra, 56 Cal.4th at p. 463.)
II. Claims of Instructional Error
A. Error in Instruction as Given: CALCRIM No. 571
1. Background
With respect to complete, or perfect, self-defense, the trial court instructed the jury, in relevant part, pursuant to CALCRIM No. 505 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, number one, the defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury or was in imminent danger of being raped. 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." (Italics added.)
With respect to imperfect self-defense, the trial court instructed the jury, in relevant part, pursuant to CALCRIM No. 571 as follows:
"A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person, because he acted in imperfect self defense. [¶] If you conclude the defendant acted in complete self defense, his action was lawful and you must find him not guilty of any crime. The difference between complete self defense and imperfect self defense depends on whether the defendant's belief [in] the need to use deadly force was reasonable. The defendant acted in imperfect self defense if, one, the defendant actually believed that he was in imminent danger of being killed or suffering great bodily injury. And, two, the defendant actually believed that the immediate use of deadly force was necessary to defend against the danger. But, number three, at least one of those beliefs was unreasonable...."
Defendant claims that when the trial court instructed the jury on imperfect self-defense, it erred in failing to include in the instruction that he acted in imperfect self-defense if he actually believed he was in imminent danger of being raped, in uniformity with its instruction to the jury on complete self-defense. Defendant argues that the omission of the reference to rape in the imperfect self-defense instruction was erroneous because one, it conveyed to the jury that great bodily injury differed from rape and, two, conveying that distinction "rendered the defense all but unavailable in this case."
The People respond that defendant forfeited his claim of error because he failed to object and request the instruction be modified. The People contend further that regardless, the instruction "adequately conveyed the law" and the inclusion of rape in the instruction would have been redundant, as it was in the complete self-defense instruction; and even if error is assumed, it was harmless.
2. Standard of Review
We review a claim of instructional error review de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) "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." (People v. Martinez (2010) 47 Cal.4th 911, 953.) "[I]nstructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury." (People v. Holt (1997) 15 Cal.4th 619, 677; accord, People v. Thomas (2011) 52 Cal.4th 336, 356.) "'"[M]isdirection of the jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not amount to federal constitutional error are reviewed under the harmless error standard articulated" in Watson.'" (People v. Beltran (2013) 56 Cal.4th 935, 955; accord, People v. Covarrubias (2016) 1 Cal.5th 838, 919.) "[W]e inquire whether the jury was 'reasonably likely' to have construed them in a manner that violates the defendant's rights." (People v. Rogers (2006) 39 Cal.4th 826, 873; accord, People v. Friend (2009) 47 Cal.4th 1, 79.) Jurors are presumed to have understood and followed the trial court's jury instructions. (People v. Sandoval (2015) 62 Cal.4th 394, 422.)
3. Forfeiture
Anticipating, correctly, that the People would advance a forfeiture argument, defendant argues that an objection is not required where the deficiency at issue affected his substantial rights. (§ 1259; People v. Delgado (2017) 2 Cal.5th 544, 572, fn. 15; People v. Townsel (2016) 63 Cal.4th 25, 59-60.) In addition, he argues that counsel's failure to object constituted ineffective assistance of counsel and we may address that claim on review. While "a defendant cannot automatically transform a forfeited claim into a cognizable one merely by asserting ineffective assistance of counsel" (People v. Thompson (2010) 49 Cal.4th 79, 121, fn. 14, citing People v. Riel (2000) 22 Cal.4th 1153, 1202-1203), we need not decide whether the forfeiture doctrine applies here because we conclude that any error was harmless (People v. Johnson (2016) 62 Cal.4th 600, 639; accord, People v. Covarrubias, supra, 1 Cal.5th at p. 919).
4. Any Error Harmless
This case does not involve a failure by the trial court to instruct the jury on an affirmative defense, thereby preventing the jury from considering the defense. Rather, the claim is limited to whether the trial court erred in failing to include the crime of rape expressly when it instructed the jury that defendant acted in imperfect self-defense if he "actually believed that he was in imminent danger of being killed or suffering great bodily injury." (CALCRIM No. 571.) There is no dispute that rape is within the category of "forcible and atrocious crime[s]" to which complete self-defense and imperfect self-defense apply (People v. Ceballos (1974) 12 Cal.3d 470, 478), but CALCRIM No. 505 (complete self-defense) contains bracketed language for the inclusion of specific forcible and atrocious crimes such as being raped, maimed or robbed, while CALCRIM No. 571 (imperfect self-defense) does not.
In reviewing a claim of error, we view the jury instructions as a whole (People v. Covarrubias, supra, 1 Cal.5th at p. 912), and jurors are presumed rational (People v. Lara (2019) 6 Cal.5th 1128, 1138). The jury here was instructed that "[g]reat bodily injury means it is significant or substantial physical injury" and "is an injury that is greater than minor or moderate harm." Furthermore, the evidence in this case and the arguments advanced by the parties left no dispute that defendant's asserted need to employ self-defense, whether actual and reasonable or actual but unreasonable, was tethered to his claim that he awoke to being raped by Guy and he then feared Guy and Jose were going to rape him again. Under these circumstances, defendant's characterization of the error as one that "rendered the defense all but unavailable in this case" is a vast overstatement, and he fails to persuade us that the omission of the word rape from the instruction misled the jury.
Regardless, assuming error, it was harmless even under the more stringent federal standard of review. That is, we find beyond "reasonable doubt that a rational jury would have rendered the same verdict absent the error." (People v. Merritt, supra, 2 Cal.5th at p. 831, citing Neder v. United States, supra, 527 U.S. at p. 18.) The jury convicted defendant of the deliberate and premeditated murders of Guy and Jose, which, as previously stated, reflects "a complete rejection of the evidence on which [the] defendant relied to establish self-defense." (People v. Crandell, supra, 46 Cal.3d at p. 874, disapproved on another ground by People v. Crayton, supra, 28 Cal.4th at pp. 364-365.) Moreover, based on the evidence, the parties' arguments to the jury, and the instruction on complete self-defense, the nature of defendant's self-defense claim was clear to the jury. The pivotal issue was, instead, whether the jury found defendant's trial testimony credible. Defendant fails to convince us that the jury's first degree murder verdict was attributable to the omission of the word rape from CALCRIM No. 571. (People v. Pearson, supra, 56 Cal.4th at p. 463.)
Although this case does not involve the failure to instruct on an affirmative defense, as previously stated, the California Supreme Court has not yet determined whether an error of that type rises to the level of a federal constitutional error or is instead state law error (People v. Gonzalez (2018) 5 Cal.5th 186, 199), and Courts of Appeal have reached varying conclusions (People v. Franklin (2018) 21 Cal.App.5th 881, 890-891 [addressing split of authority]; People v. Wright (2015) 242 Cal.App.4th 1461, 1495, fn. 14 [recognizing split of authority]). Although we disagree with defendant's characterization of the alleged error as one that effectively deprived him of a defense, we need not determine which standard of review to apply because the asserted error was harmless even under the federal standard of review.
We also disagree with defendant's description of the case as close. Defendant testified that he awoke in pain to find himself being raped in his bed by Guy, but defendant did not strike Guy or Jose in the bedroom, yell for help, wake Luis up, or call 911. He instead went into the bathroom with his alleged attackers still in the apartment and prepared to shower to wash Jose's saliva off his face. When Guy allegedly entered the bathroom and reached for him, defendant knocked Guy backward into the bathtub with one blow and then proceeded to hold him down by the throat and rain blows down on him, causing his death. Leaving Guy dead or near death, defendant exited the bathroom. Again, he did not yell for help, wake Luis up, call 911 or seek out a place of safety. Instead, he returned to the bedroom and encountered Jose coming out. Defendant described an ensuing struggle during which he knocked Jose out with one blow and then proceeded to pummel him to death, undeterred by Luis's attempts to interrupt the attack.
Defendant also described acting out of anger and there was evidence that after the murders, he attempted to clean himself and the crime scene up. When police arrived, defendant did not tell them he had been raped or that he killed Jose and Guy in self-defense. To the contrary, defendant acted as if nothing happened and he behaved combatively enough at the scene that an officer had to pepper spray him. Once he was taken into custody, defendant insisted he did not know what happened and was not involved, despite a detective giving him an opening as to whether something unwelcome of a sexual nature had occurred.
The physical evidence, defendant's trial testimony regarding what occurred, and the evidence of his behavior at the scene and during interrogation are difficult to reconcile with his claim of self-defense to prevent a rape. The jury ultimately rejected that claim and we find defendant's characterization of this as a close case in which the jury was misled by the omission of the word rape from the imperfect self-defense instruction meritless.
B. Failure to Instruct: CALJIC No. 5.10
1. Background
CALJIC No. 5.10 provides that "[h]omicide is justifiable and not unlawful when committed by any person who is resisting an attempt to commit a forcible and atrocious crime." Defendant claims that in failing to instruct the jury pursuant CALJIC No. 5.10, the trial court impermissibly limited his complete self-defense theory.
Relevant to defendant's claim of error, section 197, which pertains to justifiable homicide, provides:
"Homicide is also justifiable when committed by any person in any of the following cases:
"(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.
"(3) When committed in the lawful defense of such person, or of a spouse, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he or she was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed.
"(4) When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace." (Italics added.)
Section 198 provides, "A bare fear of the commission of any of the offenses mentioned in subdivisions 2 and 3 of Section 197, to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone." (Italics added.)
As set forth in part in the preceding section, the trial court instructed the jury on complete self-defense pursuant to CALCRIM No. 505 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, number one, the defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury or was in imminent danger of being raped. 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 going to be. The defendant must have believed there was imminent danger of death or great bodily injury to himself. The defendant's belief must have been reasonable and he must have acted only because of that belief...." (Italics added.)
Defendant claims that the trial court should have instructed the jury with CALJIC No. 5.10, which accurately summarizes justifiable homicide under section 197, subdivision (1), by straightforwardly informing the jury that "[h]omicide is justifiable and not unlawful when committed by any person who is resisting an attempt to commit a forcible and atrocious crime." Defendant contends that CALCRIM No. 505 misstates the law with respect to the portion that provides that "[d]efendant's belief must have been reasonable and he must have acted only because of that belief," because the instruction imports to section 197, subdivision (1), requirements from section 198 that apply only to section 197, subdivisions (2) and (3). Defendant asserts that CALCRIM No. 505 "tells the jury it could find self-defense if it found [defendant] 'reasonably believed' he was about to be raped, 'reasonably believed' deadly force was necessary to repel the danger, and he 'acted only because of that belief.' [Citation.] These limitations on the right to self-defense come directly from section 198 and should have had no place in this self-defense case under section 197, subdivision (1)."
2. No Error
The essence of defendant's argument is that because he claimed he killed Guy and then Jose while defending himself from another rape, "the proper inquiry for the jury is [limited to] (1) whether the decedent was in fact attempting to commit a rape, and (2) whether the defendant killed while resisting that attempt," irrespective of the reasonableness of defendant's belief or whether defendant acted for a reason other than that belief. (§ 197, subd. (1).) We reject defendant's view and find no error.
a. Instructions Not Viewed in Isolation
We begin by observing that in interpreting the term "a felony" in section 197, subdivision (1), the Court of Appeal in People v. Jones (1961) 191 Cal.App.2d 478 explained, "[T]he section does no more than codify the common law and should be read in the light of it. Taken at face value, and without qualification, it represents an oversimplification of the law today." (Id. at p. 481.) The court recognized that the common law rule codified in section 197, subdivision (1), was "limited to the commission of felonies that involve a danger of great personal harm, or 'some atrocious crime attempted to be committed by force.'" (People v. Jones, supra, at p. 481.)
Subsequently, in People v. Ceballos, the California Supreme Court cited People v. Jones with approval and stated, "By its terms subdivision 1 of ... section 197 appears to permit killing to prevent any 'felony,' but in view of the large number of felonies today and the inclusion of many that do not involve a danger of serious bodily harm, a literal reading of the section is undesirable." (People v. Ceballos, supra, 12 Cal.3d at pp. 477-478.) The court recognized "the rule developed at common law that killing or use of deadly force to prevent a felony was justified only if the offense was a forcible and atrocious crime," such as murder, mayhem, rape and robbery. (Id. at p. 478.)
Although the focus of defendant's challenge to CALCRIM No. 505 is not the "a felony" language in section 197, subdivision (1), the aforementioned cases bear mention because defendant's argument, too, relies on the bare statutory language to oversimplify what the law requires to establish self-defense. A single jury instruction may not be viewed in "'"artificial isolation"'" (People v. Mills (2012) 55 Cal.4th 663, 677; accord, People v. Holt, supra, 15 Cal.4th at p. 677; People v. Thomas, supra, 52 Cal.4th at p. 356) and, here, CALJIC No. 5.10 does not represent the sum total instruction to the jury on justifiable homicide under CALJIC instructions.
Specifically, CALJIC No. 5.12, which is used in connection with CALJIC No. 5.10, provides:
"The killing of another person in self-defense is justifiable and not unlawful when the person who does the killing actually and reasonably believes:
"1. That there is imminent danger that the other person will either kill [him] [her] or cause [him] [her] great bodily injury; and
"2. That it is necessary under the circumstances for [him] [her] to use in self-defense force or means that might cause the death of the other person for the purpose of avoiding death or great bodily injury to [himself] [herself].
"A bare fear of death or great bodily injury is not sufficient to justify a homicide. To justify taking the life of another in self-defense, the circumstances must be such as would excite the fears of a reasonable person placed in a similar position, and the party killing must act under the influence of those fears alone. The danger must be apparent, present, immediate and instantly dealt with, or must so appear at the time to the slayer as a reasonable person, and the killing must be done under a well-founded belief that it is necessary to save one's self from death or great bodily harm." (CALJIC No. 5.12, italics added.)
Thus, the CALJIC instructions communicate to the jury the very same information that defendant claims is erroneous under CALCRIM No. 505.
b. Reasonableness of Belief
Turning to defendant's specific arguments, defendant's position that the jury should have been instructed with CALJIC No. 5.10 because it does not include the requirement of reasonableness is untenable. (People v. Barillas (1996) 49 Cal.App.4th 1012, 1023 [CALJIC No. 5.10 "surplusage, added nothing to the other instructions, and should not have been given"].) As the People contend, it is long and well established that "[f]or perfect self-defense, one must actually and reasonably believe in the necessity of defending oneself from imminent danger of death or great bodily injury." (People v. Randle (2005) 35 Cal.4th 987, 994, overruled in part on another ground by People v. Chun (2009) 45 Cal.4th 1172, 1200-1201; accord, People v. Elmore (2014) 59 Cal.4th 121, 133-134; People v. Humphrey (1996) 13 Cal.4th 1073, 1082; People v. Flannel (1979) 25 Cal.3d 668, 674-675; People v. Trevino (1988) 200 Cal.App.3d 874, 878-879.) The actual but unreasonable belief in the necessity of defending oneself is imperfect self-defense. (People v. Randle, supra, at p. 994; accord, People v. Elmore, supra, at p. 134; People v. Humphrey, supra, at p. 1082.) The proposition advanced by defendant is contrary to established law, which we are bound by, and we reject it. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 197-198, citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
c. Reasonable Fear Must Motivate Act of Deadly Force
Defendant's remaining challenge similarly lacks merit. Defendant highlights the prosecutor's argument that he killed Guy and Jose in anger, and he asserts that the court erred in "advis[ing] the jury that [he] could rely on self-defense only if no other factors contributed to the homicide[s]." This portion of CALCRIM No. 505, however, is an accurate statement of law. (People v. Trevino, supra, 200 Cal.App.3d at pp. 878-879.)
In People v. Trevino, this court explained, it is "settled that '[t]o be exculpated on a theory of self-defense one must have an honest and reasonable belief in the need to defend. [Citations.] A bare fear is not enough; "the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone." (Pen. Code, § 198.)' [Citations.] Hence, an instruction which states that the party killing must act under the influence of such fears alone, is a correct statement of the law." (People v. Trevino, supra, 200 Cal.App.3d at pp. 878-879; see People v. Nguyen (2015) 61 Cal.4th 1015, 1045 [discussing "'such fears alone'" analysis in People v. Trevino with approval].)
However, this does not "imply that a person who feels anger or even hatred toward the person killed, may never justifiably use deadly force in self-defense. For example, it is settled that a person who has sought combat may decline further struggle and, if he really and in good faith does so before the killing, the killing may be justified on the same grounds as if that person had not originally been the aggressor. [Citation.] Furthermore, if a victim of a simple assault engages in a sudden and deadly counterassault, the original aggressor need not attempt to withdraw, and may reasonably use necessary force in self-defense. [Citation.] [¶] In such situations, as in others, it would be unreasonable to require an absence of any feeling other than fear, before the homicide could be considered justifiable. Such a requirement is not a part of the law, nor is it a part of CALJIC No. 5.12. Instead, the law requires that the party killing act out of fear alone." (People v. Trevino, supra, 200 Cal.App.3d at p. 879.) "The party killing is not precluded from feeling anger or other emotions save and except fear; however, those other emotions cannot be causal factors in his decision to use deadly force. If they are, the homicide cannot be justified on a theory of self-defense. But if the only causation of the killing was the reasonable fear that there was imminent danger of death or great bodily injury, then the use of deadly force in self-defense is proper, regardless of what other emotions the party who kills may have been feeling but not acting upon." (Ibid.)
"A trial court has no sua sponte duty to revise or improve upon an accurate statement of law without a request from counsel" (People v. Lee (2011) 51 Cal.4th 620, 638) and the trial court's instruction to the jury pursuant to CALCRIM No. 505 accurately and adequately advised the jury of the requirements, relevant to defendant's claim here, that he "reasonably believed that he was in imminent danger of being killed or suffering great bodily injury or was in imminent danger of being raped," that he "reasonably believed that the immediate use of deadly force was necessary to defend against that danger," and that he "acted only because of that belief." The prosecutor did not suggest to the jury that defendant was precluded under the law from feeling any emotion other than fear. Rather, based on defendant's testimony regarding his feeling of anger, the prosecutor's argument that defendant acted out of anger rather than fear was proper commentary on the evidence.
In contrast with People v. Nguyen, which involved members of rival gangs engaged in ongoing war, this case does not involve any history between defendant and his victims that might suggest the existence of mixed motives. (People v. Nguyen, supra, 61 Cal.4th at p. 1046 ["We note that [the] defendant did not argue in the trial court, nor has he argued on appeal, that the jury should have been instructed that acting based on mixed motives is permissible so long as reasonable fear was the but-for cause of his decision to kill. We therefore have no occasion to consider whether such a rule would be consistent with section 198 as interpreted in [People v.] Trevino or other cases."].) Defendant does not claim to the contrary. Instructions "'relat[ing] particular facts to a legal issue in the case or "pinpoint[ing]" the crux of a defendant's case ... are required to be given upon request when there is evidence supportive of the theory, but they are not required to be given sua sponte,'" and the failure to request a pinpoint instruction forfeits the issue on appeal. (People v. Jennings (2010) 50 Cal.4th 616, 675; accord, People v. Saille (1991) 54 Cal.3d 1103, 1119; People v. Anderson (2011) 51 Cal.4th 989, 996-997.) To the extent that defendant wanted CALJIC No. 5.10, he could have but did not request it, and as we have discussed, its absence did not result in any mischaracterization of the law.
d. Decision in People v. Young Inapt
Lastly, defendant's reliance on People v. Young (1963) 214 Cal.App.2d 641 for the proposition that prejudicial error occurred is misplaced. In People v. Young, the defendant and the victim were having coffee together at a café when the victim, who had a reputation as a "quarrelsome trouble maker," grabbed the defendant's cash, the sum of which was the defendant's employment pay. (Id. at p. 646.) The two men proceeded to engage in a protracted physical altercation during which they were both armed with knives. (Id. at pp. 646-647.) The altercation ultimately ended outside the café with the victim dead from multiple stab wounds. (Id. at pp. 649-650.)
The defense theory was that the defendant acted in self-defense while resisting the victim's attempt to commit robbery. (People v. Young, supra, 214 Cal.App.2d at p. 644.) The trial court refused the defendant's request to instruct the jury regarding this theory (id. at pp. 643-644), which the Court of Appeal concluded was error because if believed, the defense evidence "established the basis for a justifiable homicide provided he did not indulge in more force than necessary to recapture his money" (id. at p. 649). The appellate court held that in light of the conflicting evidence concerning who inflicted the victim's fatal wound and how, coupled with the trial court's refusal to instruct the jury on the defense theory, defendant was deprived of a fair trial, resulting in a miscarriage of justice. (Id. at p. 650.)
In this case, the question of who inflicted the victims' injuries and how was not at issue and, critically, defendant was not precluded from presenting his defense theory to the jury through the absence of jury instructions or otherwise. Accordingly, we find the decision in People v. Young inapt and conclude the trial court did not err in its instruction to the jury pursuant to CALCRIM No. 505.
III. Cumulative Error
Defendant also claims cumulative error resulting from the aforementioned errors. "In examining a claim of cumulative error, the critical question is whether [the] defendant received due process and a fair trial. [Citation.] A predicate to a claim of cumulative error is a finding of error." (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.) With the possible exception of defendant's Doyle error claim, which we found harmless in any event, we rejected defendant's individual claims of error and therefore, we necessarily reject his claim of cumulative error. (People v. Williams (2013) 56 Cal.4th 165, 201, disapproved on another ground by People v. Elizalde (2015) 61 Cal.4th 523, 538, fn. 9; People v. Sedillo, supra, at p. 1068; People v. Leeds (2015) 240 Cal.App.4th 822, 837.)
IV. Duplicative Multiple-murder Special-circumstance Findings
In connection with its findings on count 1 and count 2 that defendant murdered Guy and Jose, the jury found the multiple-murder special-circumstance allegations true. (§ 190.2, subd. (a)(3).) The parties agree that only one multiple-murder special-circumstance finding may stand.
The California Supreme Court has recognized that is it improper for a jury to sustain more than one multiple-murder special-circumstance finding. (People v. Jennings (1991) 53 Cal.3d 334, 388; accord, People v. Hardy (1992) 2 Cal.4th 86, 191.) Accordingly, one of the findings shall be stricken as duplicative. (People v. Jennings, supra, at p. 388; accord, People v. Hardy, supra, at p. 191.)
V. Imposition of Parole Revocation Restitution Fine
Finally, the trial court imposed a restitution fine in the amount of $300 and a corresponding parole revocation restitution fine in the amount of $300. (§§ 1202.4, subd. (b); 1202.45, subd. (a).) The parties agree that the parole revocation restitution fine imposed by the trial court should be stricken because defendant's sentence does not include the possibility of parole.
Section 1202.45, subdivision (a), provides: "In every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." In this case, defendant's sentence is comprised of two consecutive terms of life without the possibility of parole and, therefore, the trial court erred in imposing a parole revocation restitution fine. (People v. Brasure (2008) 42 Cal.4th 1037, 1075; People v. Jenkins (2006) 140 Cal.App.4th 805, 819; People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.) The $300 parole revocation restitution fine shall be stricken.
DISPOSITION
The judgment is modified as follows: one of the two multiple-murder special-circumstance findings under section 190.2, subdivision (a)(3), is stricken as duplicative and the parole revocation restitution fine imposed under section 1202.45, subdivision (a), is stricken. The trial court shall issue an amended abstract of judgment and forward it to the appropriate authorities. Except as modified, the judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
POOCHIGIAN, J.