Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS053335A
Bamattre-Manoukian, ACTING P.J.
Defendant was charged by information with felony murder during the commission of the offenses of arson and burglary (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17); count 1), four counts of premeditated, attempted murder (§§ 664, 187, subd. (a); counts 2-5), arson of an inhabited structure (§ 451, subd. (b); count 6), first degree burglary while a person other than an accomplice was present (§ 459, 667.5, subd. (c)(21); count 7), and three counts of child endangerment (§§ 273a, subd. (a); counts 8-11). The information further alleged that defendant personally used a deadly and dangerous weapon, a knife, during the commission of the offenses in counts 1 and 2 (§ 12022, subd. (b)(1)), and that he personally inflicted great bodily injury on the victim of the offense in count 2 (§ 12022.7). On February 14, 2007, a jury found defendant guilty of the three counts of child endangerment (counts 8-10, § 273a, subd. (a)), and a mistrial was declared as to the other counts. An amended information was filed adding a charge of solicitation to commit perjury (§ 653f, subd. (a)) as count 11. On June 23, 2008, a second jury found defendant guilty of first degree murder (§ 187, subd. (a)), four counts of premeditated, attempted murder (§§ 664, 187, subd. (a)), arson of an inhabited structure (§ 451, subd. (b)), first degree burglary (§ 459), and solicitation of perjury (§ 653f, subd. (a)). The second jury also found true allegations that the murder was committed during the crimes of arson and burglary (§ 190.2, subd. (a)(17)), and that defendant personally used a deadly and dangerous weapon, a knife, during the commission of the murder (§ 12022, subd. (b)(1)); that defendant personally used a deadly and dangerous weapon, a knife, and personally inflicted great bodily injury upon the victim during the commission of one of the attempted murders (count 2; §§ 12022, subd. (b)(1), 12022.7); and that a person other than an accomplice was present in the residence during the burglary (§ 667.5, subd. (c)). The trial court sentenced defendant on all of the charges to the indeterminate term of life without parole, consecutive to two indeterminate terms of life with the possibility of parole, consecutive to the determinate term of eight years.
Further unspecified statutory references are to the Penal Code.
On appeal, defendant contends that the trial court prejudicially erred by (1) failing to dismiss a biased and dishonest juror; (2) excluding evidence of prior bad acts committed by defendant’s sister, one of the attempted murder victims; (3) omitting an important principle from the instruction on imperfect self-defense; and (4) excluding evidence the murder victim, defendant’s brother-in-law, was in fear of defendant’s sister. Defendant also contends that his trial counsel rendered ineffective assistance by failing to present exculpatory evidence at the second trial that was presented at the first trial, and that the convictions should be reversed for cumulative error. As we find no prejudicial error, we will affirm the judgment.
BACKGROUND
Defendant was charged by information filed April 5, 2006, with felony murder during the commission of the offenses of arson and burglary (§§ 187, subd. (a), 190.2, subd. (a)(17); count 1), four counts of premeditated, attempted murder (§§ 664, 187, subd. (a); counts 2-5); arson of an inhabited structure (§ 451, subd. (b); count 6), first degree burglary while a person other than an accomplice was present (§§ 459, 667.5, subd. (c)(21); count 7), and three counts of child endangerment (§ 273a, subd. (a); counts 8-10). The information further alleged that defendant personally used a deadly and dangerous weapon, a knife, during the commission of the offenses in counts 1 and 2 (§ 12022, subd. (b)(1)), and that he personally inflicted great bodily injury on the victim of the offense in count 2 (§ 12022.7).
Motions in limine were heard for defendant’s first trial beginning on January 25, 2007, and testimony began on February 1, 2007. The matter was submitted to the jury on the morning of February 9, 2007, and the jury returned its verdict on the afternoon of February 15, 2007. The jury found defendant guilty of the three counts of child endangerment, counts 8 through 10. As the jury was unable to reach a verdict on counts 1 through 7, the court declared a mistrial on those counts.
The record on appeal includes only a small portion of the reporter’s transcript of the first trial.
Defendant’s appointed trial counsel, Charles Murphy, filed an affidavit of conflict on November 2, 2007, and the court appointed defendant new counsel. On March 21, 2008, defendant was held to answer on a charge of solicitation to commit perjury (§ 653f, subd. (a)). The court granted the prosecution’s motion to consolidate that matter with this matter on May 15, 2008, and an amended information adding the solicitation offense as count 11 was filed on June 4, 2008.
The Prosecution’s Evidence
In November 2005, Tonia Bone and her putative spouse Billy White lived in a mobile home on Blackie Road in Prunedale with their sons J. (age three) and A. (age one), and Tonia’s daughter C. (age 11). The family had a pit bull named Sirus that they kept tethered outside in the front yard. The mobile home sat next to a house that had been the childhood home of Tonia and defendant, her older half-brother, until defendant went to live with his grandparents at the age of 14 or 15. That house was condemned and Tonia used it for storage. Vernon and Donna Silva lived in a mobile home on the same property.
As some of the witnesses have the same last name, in order to avoid confusion and not out of any disrespect, we will refer to some of the witnesses by their first name.
In November 2005, defendant worked as a handyman. He and his girlfriend Elena Gutierrez lived together in an apartment. They had previously lived with Elena’s parents for some time until Elena broke up with defendant because he started using methamphetamine. After defendant stopped using drugs and rented the apartment in early November 2005, Elena moved in with him. Defendant did not like Tonia, and stopped seeing her around 2003 or 2004 after Tonia and Billy started using methamphetamine. Elena, a children’s mental health counselor, had never met Tonia, but she had heard about Tonia from defendant.
On November 29, 2005, Elena and defendant spent the day together. Elena cleaned the apartment and cooked beans. She cut up an onion to put in the beans using a 12-inch-long kitchen knife with a black handle. That night, after defendant and Elena had gone to bed, defendant got up around midnight. He told Elena that he was going to get some fresh air and he left in his truck. He was wearing a black jacket, jeans, and tennis shoes. When he came back he said it had been good to get some fresh air. He undressed and went back to bed, and Elena fell asleep. At some point, defendant woke Elena up again. He was sweating profusely and the bed was wet. Elena changed the sheets and they went back to sleep.
On November 29, 2005, after C.’s school let out, Tonia and her family went to get their Christmas tree. They did not put it up, however, because it was late; they left it in the back of their truck. They ate dinner and then watched a movie in the living room. C. was on the couch, J. and A. were on cushions on the floor, and Tonia and Billy were on a mattress. Tonia had a blanket around her, but nothing else on. C. fell asleep before the movie ended.
C. woke up when her mother stepped on her foot and Sirus started barking. Tonia looked out the window and said that it might be MJ, which is what the family calls their friend James Martin. C. looked out the window and saw Sirus holding onto the jacket sleeve of a man, but she could not tell who the man was. Billy got up, put on some sweats, opened the door, looked out, and said, “ ‘Hey, M.J.’ ” Defendant responded, “ ‘Hey, Billy.’ ” Defendant ran up on the porch. Billy tried to shut the door but defendant kicked or pushed it open and pulled Billy outside. The rest of the family stayed inside.
C. could hear yelling and fighting going on outside. Defendant then ran inside the home. He was wearing a dark jacket, blue jeans, and tennis shoes, and he had a large knife with a black handle and a gas can. He said, “ ‘Hey sis, I have a surprise for you.’ ” He poured gasoline on the couch and love seat. Tonia told him to stop, that she loves him, and that she did not want him to do that. Defendant responded, “ ‘Stop it.’ ” He went over to Tonia and stabbed her.
Tonia yelled at C. to get her brothers out. C. tried to get them but defendant grabbed her and threw her into a bedroom. He told her “something like if you get out of this room you’re going to die.” C. was afraid. She stayed in the bedroom until she saw some flickering lights and thought the police had arrived. When she left the bedroom, she saw the love seat and couch engulfed in flames. She filled a large cup with water and tried to put out the flames, but it did not work. She found J. in the kitchen and put him on her back. She then grabbed A. and left.
North County Fire Department Chief Humberto Arista and firefighter and EMT Donald Harvey were dispatched to render medical aid to the victim of a stabbing at the Blackie Road address shortly before 1:00 a.m. on November 30, 2005. They arrived in the area within 15 seconds as they were already nearby. However, they did not go to the reported address because the police had not yet arrived and the protocol is to have confirmation that a crime scene has been cleared before they go in. The neighbor, Vernon, ran toward the fire truck with a cell phone in his hand. He pointed down the road and said that two houses were on fire. Chief Arista requested additional firefighting resources.
As Chief Arista’s fire truck approached the burning structures, he and Harvey saw C. running toward them with J. and A. The children looked scared. Vernon yelled from the porch of his mobile home that there were two people inside who had been stabbed. Chief Arista approached the children. The children had soot on their faces and smelled of gasoline. Chief Arista asked C. if there was anybody still inside the burning structures. C. said that she thought her uncle was still in there, and that her uncle had told her that if she left he would kill her. Vernon approached the children, they went to him, and he took them inside his mobile home.
When the police arrived, Chief Arista asked the officers to secure the Silvas’ home so he could provide medical assistance to two stabbing victims. Once the home was cleared, Chief Arista entered it and saw blood in a hallway and Tonia and Billy at the end of the hall. Tonia was sitting quietly on her knees, leaning against a door jam, naked, and cradling Billy’s head on her lap. Chief Arista directed Harvey to treat them while he isolated the children in a bedroom and sought additional help.
Harvey checked Billy for a pulse before Billy was taken to another room. Billy had already died from two stab wounds to the left side of his lower back. The lower stabbing had struck his adrenal gland and caused bleeding into the abdominal cavity. The upper stabbing had passed through the chest into the center of the left lung and hit large blood vessels that supply the lung, causing him to rapidly bleed to death. He had no defensive cut wounds. The parties stipulated that toxicology tests later determined that Billy’s blood was negative for drugs and alcohol.
Harvey administered medical aid to Tonia. Tonia had a large stab wound to her side and appeared to be in shock, but she was able to answer Harvey’s questions. Harvey dressed the wound and asked Tonia if she knew who caused it. Tonia said her brother. She did not ask Harvey any questions. She was transported to the hospital for further treatment and was in shock when she arrived. She was somewhat agitated and became more agitated during her hospitalization. Her toxicology test came back positive for amphetamines although she denied drug use. The stabbing had caused injuries to the right side of her liver, her right chest cavity, and her right lung. The injuries resulted in bleeding into her chest, significant blood loss, and the partial collapse of her right lung. She remained in the hospital for several days, and was given medication to calm her anxiety.
Tonia’s mobile home burned to the ground. The condemned house sustained damage to the front porch and door. No human remains were found in either structure.
Elena was awakened at 6:30 a.m. on November 30, 2005, by a phone call from defendant’s father in Wisconsin. Defendant’s father told Elena that defendant was being accused of killing Billy, stabbing Tonia, and burning down their home. He told Elena to call 911 because the police might kill defendant when they find him. Elena told defendant, who was in bed, what his father said. Defendant said to tell his father “not to fuck with me like this.”
Elena called 911 at 7:39 a.m. Defendant helped Elena give the police directions to their apartment. While waiting for the police to arrive, defendant put his tennis shoes over the stove. He told Elena that he was cleaning them because of dog excrement. Elena later smelled defendant’s tennis shoes, and they smelled to her like gasoline. When the police arrived they arrested defendant and removed him from the apartment. Defendant had no money in his wallet when he was booked into jail.
Officers told Elena that they were waiting for a search warrant. Elena asked the officers if they had found a murder weapon. The officers asked her how many knives she had. She said she had five knives, and the officers asked her to find them. She found four knives, but she could not find the knife she had used to cut up the onion the day before.
Defendant’s tennis shoes were seized from his apartment and later tested. The parties stipulated that both tennis shoes contained gasoline residue. Defendant’s truck was also seized and tested. There was a streak of blood behind and above the outside handle of the rear door on the driver’s side of the truck. The parties stipulated that the blood was Tonia’s. A black jacket that was turned inside out and smelled of gasoline was sitting on the rear passenger seat of the truck. Neither sleeve was torn but the right sleeve of the jacket had a smear of blood near the elbow. The parties stipulated that the blood was Tonia’s. Blood was also found on the jacket’s right cuff. The parties stipulated that the blood was Billy’s. The parties also stipulated that there was DNA on the jacket indicating that defendant had worn it.
Neither Tonia nor Billy was known by the Monterey County Sheriff’s Department as possible sellers of controlled substances, but Billy had been known as a user of methamphetamine.
After defendant’s first trial, he was housed in county jail with James Martin. Martin had a 1996 felony conviction for residential burglary, a 2000 misdemeanor conviction for unauthorized use of an access card, and a 2004 misdemeanor conviction for unlawfully kissing a 14-year-old girl. Defendant noticed that Martin had the name “Tonya” tattooed on his throat. The tattoo referred to Martin’s former girlfriend Tonya Gibson. Defendant said that it was his sister’s name. He asked if Martin was the MJ that his niece reported seeing at her home the day Billy died. Martin said that he was not that person.
Defendant wanted to “put more blame on his sister and take it off him.” He asked Martin if he would tell a defense investigator that Martin met defendant’s sister through Billy, as Martin was Billy’s drug supplier; that Martin and defendant’s sister flirted with each other; that they started an affair after Billy died; and that Martin had proof. Martin refused to do it at first, but defendant said that he could have his girlfriend get Martin into a drug program and that the cost of the program would be taken care of.
Martin met with the defense investigator. He told her that he had intimate pictures of himself and Tonia, and pictures of them with drugs, and that he could provide the pictures and a letter. He received a subpoena to testify in defendant’s second trial and $5 before he was released from jail. The $5 was to pay for cab fare home. A prosecution investigator met with him after he was rearrested two weeks later and asked him to verify the information in the defense investigator’s report. Although he told that investigator the same thing he told the defense investigator, he was not able to answer some questions posed to him about Tonia. He did not know about Tonia’s children or how to get to her home, and he could not pick her photo out of a lineup.
The prosecution presented defendant’s testimony from the first trial by reading it from the certified transcript. Defendant testified at that trial that he bought some methamphetamine from Tonia at her home a few months before November 30, 2005. He went back to Tonia’s home when he woke up around midnight on November 30, 2005, because he wanted to buy more methamphetamine. Tonia was sitting outside wearing a long T-shirt and smoking a cigarette when defendant arrived. She appeared to defendant to be under the influence of methamphetamine. He asked her if he could buy some methamphetamine, and she said that he could. She told defendant that she and Billy had been fighting and were going to break up. She asked defendant to “kick his ass.” When defendant declined, Tonia became agitated and said, “I will.” She went inside. Sirus started barking at defendant and Tonia yelled at him to back off. Billy came outside and defendant said, “ ‘What’s up, Billy.’ ” Billy rushed him, and defendant ended up down on his knees with Billy holding him in a chokehold.
When Billy released his grip, he said, “ ‘Help me.’ ” Defendant spun around and saw that Billy had been stabbed and that Tonia was pouring gasoline in the entryway. Defendant picked up a knife Tonia had dropped and screamed at her, “Stop it. Stop it.” He slipped in the gas, caught himself, grabbed the gas can and threw it behind him. He saw C. running out and he stopped her. He told her, “ ‘Get in your room. Get in your room. I don’t want you to die. I don’t want you to get killed,’ ” and he shoved her down the hall. It appeared to defendant that Tonia was looking for a weapon and that he was in danger. He rushed her and stabbed her. He then ran. As he did, he saw Billy walking to the Silvas’ mobile home.
Defendant got in his truck and drove home. He had a little blood on his hand, so he wiped it on his jacket and threw the jacket in the back of the truck. When he got home, he took some medication and went to sleep. He did not call the police because he did not realize that anybody had been fatally wounded, and he did not think that Tonia was capable of hurting her children. In the morning, his father called and he learned that he was suspected of killing Billy. He thought that Tonia was blaming him for what had happened. After Elena called 911, and he gave the police directions to his apartment, he tried to clean some dog excrement off his shoes. When the police arrived, he surrendered peacefully.
While in jail, he told his father over the telephone that he had not seen Tonia because he could not explain to his family over the phone what had happened. He wrote his mother that “it wasn’t their blood,” referring to Billy, because he did not know how to tell her that he had stabbed his sister.
Tonia was not called by the prosecution to testify as part of its case-in-chief. However, the defense did call Tonia to testify.
The Defense Case
Ralph Garcia married Tonia in late 1998 or early 1999 and, as far as he knows, they are still legally married. They have had no contact since 1999. Tonia admitted at trial to still being legally married to Garcia, but testified that she honestly believed they had been divorced before she married Billy in 2003. Although her 2003 marriage license says that she had no prior marriages, she had two.
On November 29, 2005, Tonia used methamphetamine, and she and Billy argued about it. That night, the family fell asleep watching a movie in their living room. Tonia, who had nothing on other than a blanket, woke up when Sirus started barking. She got up and looked out the window. She saw a man she mistook as MJ approaching the house. She told Billy that it was MJ. She realized the man was defendant as he got closer and Sirus jumped on him. Defendant had a gas can in one hand and a knife in the other, and Tonia told Billy that. Billy jumped up and yelled out, “ ‘What is going on?’ ” Defendant ran up to the front porch, yelled, “ ‘I got a surprise for you Billy,’ ” and kicked in the front door. Billy grabbed defendant and threw him out. It appeared that Billy and defendant were fighting when Tonia heard a scream. Defendant broke away from Billy and ran inside.
Defendant told Tonia that he had something for her, and then stabbed her. She yelled at C. to run. C. tried to run for the door, but defendant grabbed her and threw her into a bedroom. Defendant returned, poured gasoline everywhere, lit the house on fire, and ran out. Tonia told C. the house was on fire, and to get her brothers and get out. With a blanket wrapped around her, Tonia grabbed Billy, dragged him out, and helped him to the Silvas’ house. Donna and Vernon got the children.
Jason Read, Billy’s friend, spent part of November 29, 2005, at Billy and Tonia’s place. Read overheard an argument between Billy and Tonia about Tonia’s use of methamphetamine that day. After Billy died, the fire department searched the destroyed mobile home for human remains and the sheriff’s department searched it for a possible murder weapon. Later, Read found a knife blade under the mobile home’s front window. He left it where it was and asked Vernon to contact the police. Vernon turned the knife blade over to the sheriff’s department. The knife blade was examined for bloodstains and DNA, but none were found. However, any DNA that had been on the blade could have been destroyed in the fire.
Read admitted having a 1993 conviction for possession of stolen property, a 1998 conviction for commercial burglary, a 2001 felony conviction for vehicle theft, a 2007 felony conviction for vehicle theft, a 2008 felony conviction for grand theft auto, and 2008 misdemeanor convictions for evading a police officer and assault with a deadly weapon.
Donna and Vernon paid rent to defendant when they first moved into their mobile home in 1998 or 1999, and thereafter they paid rent to Tonia. They had known Billy since he was a teenager. On November 30, 2005, around 7:00 p.m., Vernon heard Billy and Tonia arguing. After Donna and Vernon went to bed that night, they were awakened by a scream coming from Tonia and Billy’s home. Vernon got up and went to the living room. Billy fell through the door. He was injured and crying “help me.” Donna came out to the living room just as Tonia fell through the door smelling of gasoline and wrapped in a blanket, but otherwise naked. Tonia said to call 911, that defendant had stabbed Billy and her, that he still had the children, and that the house was on fire. Vernon called 911, and Donna got some linens to try to stop Billy’s bleeding. Vernon went outside, gathered the children, and brought them inside, and Donna took them into a bedroom. The children had soot on their faces and smelled of gasoline. Donna told Tonia that she had the children while Vernon tended to Billy. Billy tried to get up several times and move away from Tonia. Tonia did not try to comfort him. Billy died and Tonia was taken by ambulance to the hospital.
Deputy Sheriff Benjamin Payton responded to the Blackie Road property on November 30, 2005, around 1:30 a.m., following the report of a stabbing. He went to the Silvas’ mobile home, and Vernon told him that the victims were in the back. The children were in a bedroom and Billy and Tonia were in the back hall. Tonia was leaning against a back wall with a sheet over her. Billy was lying in front of her with his feet toward her and was already dead. After Officer Payton made sure the home was cleared, he allowed the fire department personnel to enter.
Jeannie Gilliam, defendant’s aunt, packed up defendant’s things at his apartment after he was arrested. She found five or six steak knives and five or six utility knives of different sizes in various places in the kitchen. Some were in the dishwasher and some were in the sink. Elena was not able to tell Gilliam who the knives belonged to, so Gilliam took all of them. Gilliam did not tell the police or the prosecutor’s office that she found the knives because nobody asked her. Everything Gilliam took that did not belong to defendant’s grandmother was taken to Goodwill.
Defendant testified in his own defense again at the second trial. He testified that he was convicted of trespassing and fighting in public in 1995, and of battery in 1997 and again in 1998.
On November 29, 2005, he and Elena spent the day together. After they both went to sleep, he woke up and started thinking about a job he had to do the next day. He decided to go to Tonia’s to buy methamphetamine. When he got there, he saw his sister outside wearing a T-shirt and asked her if she had any methamphetamine. She said that she did. She told defendant that she and Billy and been arguing, that Billy had hit her, and that they were breaking up. She first asked defendant to “fuck him up,” and then said she would handle it herself. She got up and went inside. Sirus started barking and Tonia yelled to him to be quiet.
Billy came out of the house and defendant said, “what’s up, Billy.” Billy overpowered defendant and put him in a headlock. When Billy finally released his grip, defendant spun around to hit him, but Billy said, “help me. Help me.” Defendant saw that Billy had been stabbed and he saw Tonia drop a knife on the ground. Tonia grabbed a gas can, poured gasoline on the front porch, and disappeared inside. Defendant yelled at her, “What the fuck are you doing?” He picked up the knife and chased after her. He slipped, caught himself, and picked up the gas can. C. came running toward him and he threw the gas can behind him. Tonia was searching for something, so defendant stopped C, told her to go to her bedroom because he did not want her to get hurt or killed, and gave her a shove. He yelled at Tonia, “stop it. Stop it.” Tonia jumped on the couch and defendant thought she was holding something in her right hand. He rushed her because he thought she had been looking for a weapon. He stabbed her once, dropped the knife, and took off.
He ran out to his truck and drove home. He took off his clothes and went to bed. Elena gave him some medication and he buried his head under the covers and went to sleep. He woke up the next morning when his father called and told Elena that he was wanted for Billy’s murder. Defendant realized that Tonia was placing the blame on him and he said something like, “you got to be kidding me.” He stayed in bed and Elena called 911. He provided directions to the apartment. Because he was told to be dressed by the time the police arrived, and he noticed that his shoes had dog excrement on them, he tried to clean the shoes.
Defendant met James Robert Martin while he was jail, but he did not solicit Martin to help him on his case. He did not pay attention to the tattoo Martin had on his neck. Martin said that he knew Tonia, so defendant asked him if he had ever bought drugs from Billy. Martin responded affirmatively. Martin said that he had pictures of Tonia and him with drug dealers and a letter which he could give to defendant’s investigator. Martin was subpoenaed to testify at trial after Martin told defendant’s investigator that he had been having an affair with Tonia. Defendant told Martin that he could ask his girlfriend about getting Martin into a drug program, and defendant’s grandmother provided $5 to Martin at defendant’s request so Martin could buy cigarettes.
Verdicts and Sentencing
On June 23, 2008, the jury found defendant guilty of first degree murder during the commission of arson and burglary, and while defendant personally used a deadly and dangerous weapon, a knife (§§187, subd. (a), 190.2, subd. (a)(17), 12022, subd. (b)(1); count 1); premeditated, attempted murder while personally using a deadly and dangerous weapon, a knife, and while personally inflicting great bodily injury (§§ 664, 187, subd. (a), 12022, subd. (b)(1), 12022.7; count 2); three counts of premeditated, attempted murder (counts 3-5); arson of an inhabited structure (§ 451, subd. (b); count 6); first degree burglary while a person other than an accomplice was present in the residence (§ 459; count 7); and solicitation of perjury (§ 653f, subd. (a); count 11). On August 1, 2008, the court sentenced defendant to the indeterminate term of life without parole consecutive to the determinate term of one year on count 1 (first degree murder during the commission of arson and burglary); the indeterminate term of life with parole consecutive to the determinate term of four years on count 2 (premeditated, attempted murder); concurrent terms of life with parole for counts 3, 4, and 5 (premeditated, attempted murder), with the terms to be consecutive to the terms on counts 1 and 2; and the consecutive term of three years on count 11 (solicitation of perjury). The court stayed terms of eight years on count 6 (arson of an inhabited structure) and six years each on count 7 through 10 (first degree murder and child endangerment) pursuant to section 654.
DISCUSSION
Refusal to Dismiss a Juror
At the start of defendant’s second trial on the morning of June 2, 2008, while addressing the jury venire, the court stated that it would read a lengthy list of the names of people who might be called as witnesses in the case. The court asked the entire venire “to pay attention to these names” so that it would not have to read the list again. The court told the venire “if you recognize any of the names on this list, or if you know any of those people, please make a note and we’ll talk to you about that when we get to chatting with you as an individual juror.” The court then read a list of 58 names. The penultimate name on the list was “Charles Murphy, who is a deputy public defender.” The court then explained how the jury selection process would proceed, and voir dire commenced. There was no voir dire of Juror No. 10 that day.
Voir dire continued on the afternoon of June 3, 2008. Juror No. 10 was called with six others to replace prospective jurors who had been excused. The court asked the seven new prospective jurors if “any of you believe you recognize the names of anyone connected with the case.” Juror No. 10 did not respond, although he did respond to other general and specific questions that afternoon. He stated that he was retired, living in Carmel, and working part-time at Pebble Beach. He also volunteered that he had had experience as both a prosecutor and as a defense counsel while on active duty in the navy for sailors accused of petty crimes.
Voir dire continued on June 4, 2008. A panel of 12 jurors, including Juror No. 10, plus three alternates, was sworn in that morning to try the case. After the lunch recess, the court called Juror No. 10 in to speak to the court, counsel, and defendant outside the presence of the rest of the jury panel. The court told juror No. 10 that “[w]e have gotten the word that Charles Murphy, a potential witness in the case, was a neighbor.” The juror responded, “He is.” The court asked the juror, “would that have any effect on your ability to be objective in this case?” The juror responded that they had been neighbors for 11 years but do not socialize. “I know him kind of at arm’s-length relationship. That would be I – don’t think that would have anything to do with it.” He stated that there was no reason he could not evaluate Murphy’s testimony “objectively.”
The record does not disclose how this information came to the court’s attention.
The court stated that Murphy “was actually the defense attorney when this case was tried previously.” The juror responded, “Oh.” The court asked if that information would affect the juror’s judgment in the case, and the juror replied, “No.” Defense counsel asked the juror if he has any contact with Murphy. The juror replied, “I haven’t talked with Mr. Murphy – he’s my next door neighbor, but we have totally different schedules, and he’s a different type person that I am. I’m an outdoor person. He’s an indoor person. And I haven’t talked to him. I said hello to him in the street three or four weeks ago.” Defense counsel asked if they had been in any arguments. The juror responded, “Yes, we did. We had words, clearly we did.” Defense counsel asked when that was. The juror responded, “About well, since I’ve lived there, I’ve always had trouble with him. So that is a fact. And I’m glad you brought that up. I don’t associate with him too much now because we don’t see eye-to-eye on most things.”
Defense counsel wanted to know what the argument was about. The juror responded, “He’s lived there for 20-some-odd years, 21 years, 22. I don’t know. When I moved in he was fairly unfriendly, and gave me a hard time on a lot of issues. [¶] We had a wall between our houses, we had our car parked there. [I] was knocking my wall down. I explained that to him when my stone mason was redoing my house, would you help me with that? No, he wouldn’t do that. [¶] So I had to put up another wall. He wouldn’t help work with me on the fence. It’s been a kind of difficult relationship. So it’s better for me just not to associate with him very much.” The juror agreed that “there might be a little bit of bitterness between” them. Defense counsel asked the juror, “It’s going [to be] hard to listen to him fairly, wouldn’t you say.” The juror responded, “Might be better for the trial that I didn’t, based on what you know. So his relationship was he was the defense attorney before. And – I don’t know. I could. It could affect it.”
The prosecutor asked the juror if he had any idea that Murphy had been a prior attorney in the case. The juror responded, “Oh, none. I don’t know anything about this case. I don’t do the local news on TV. I listen to cable news, Fox, or I get the San Jose newspaper because I don’t like any of the newspapers we have. I don’t know like the radio stations. I will listen to the FM station for classical music, that’s about all.” The prosecutor asked the juror if he could treat Murphy’s testimony “just as you would treat anybody else’s testimony” if Murphy were to testify. The juror responded, “Yeah. He had to tell the truth, so that’s fine. Whatever his testimony I would be fine.” The juror said that he would follow the instructions of the court as to how to evaluate witnesses’ testimony and that their neighborhood dispute could be “check[ed] out at the door.” He said, “We’re struggling to be friends again. I suppose sometimes as we go forward that will happen, and it’s just been easier for me to – at least we’re have going to problems [sic] with the wall, so I don’t know. [¶] Right now I speak to him in the street, and I go out of my way to say hello, okay. And his wife chats in the street occasionally. So, I mean, we’re on speaking terms and that kind, but I don’t go out of my way to associate with him.” The prosecutor asked if that would affect his “judgment in terms of judging this defendant.” The juror responded, “ No. It was a complete surprise to me that he was the defense attorney on that. And to me, it doesn’t make any difference because all I have to deal with is the testimony now, his instructions, and kind of make a decision. So that’s what I do.”
The court asked the juror not to discuss their conversation with any of the other jurors and to not discuss Murphy with them unless Murphy actually testifies. The juror responded, “I’ll respect that.” After the juror left the courtroom, defense counsel asked that he be excused. “I mean, he didn’t tell us. Had I known what he just told us, I wouldn’t have kept him. I would have exercised a peremptory. And, I mean, he said enough to make a challenge for cause, but I would have definitely exercised a peremptory based on that. [¶] I’ve known Charles [Murphy] for I don’t know how long. I can’t imagine anyone that doesn’t get along with him. Frankly, that’s sort of a telling to me. But anyway – but for that I would have exercised the challenge. [¶] I can’t imagine, I mean, as soon as you asked him he said, oh, yeah, I know him. It was on the list there. I don’t know. It seems unusual to me. Maybe I’m just being suspicious.”
The prosecutor responded: “It seems to me it didn’t even register, and he had no idea that Mr. Murphy had anything to do with this case. In fact, we didn’t ask him. I’m not even sure that he knew where Mr. Murphy worked. [¶] He indicated that he would be fair and would evaluate Mr. Murphy’s testimony, if he testifies, the same way that he would evaluate else’s testimony [sic]. So I would ask that he remain on the jury.”
The court ruled as follows. “Well, it’s not clear whether he recognized the name or not. Charles Murphy is not a terribly unusual name. There were about 60 names that were read off. And JUROR NO. 10 was not in the front of the room when that happened, so I’m not convinced that he deliberately concealed anything. Doesn’t seem like the type of person that is particularly secretive about anything. [¶] At this stage of the proceedings, it’s not clear whether Mr. Murphy’s going to testify. My understanding is if he does testify, it’s going to be fairly neutral testimony about when some things took place. So I’m not inclined to excuse this juror at this time. [¶] I asked him not to have any conversation with the other jurors about this issue. If Mr. Murphy does in fact testify, then perhaps we might want to talk to JUROR NO. 10 further about whether he can objectively evaluate that testimony. At this time I’m not inclined to excuse him.”
Murphy was not called as a witness to testify by either party. The issue of Juror No. 10’s service on the jury panel was not raised below again. Juror No. 10 became the jury foreman.
On appeal, defendant contends that the trial court should have discharged Juror No. 10 “for three reasons: (1) He concealed the fact that he knew Mr. Murphy. (2) His answers to the trial court’s follow-up questioning were demonstrably dishonest. (3) He was biased against Mr. Murphy, which bias spilled over to [defendant].” Defendant argues that a juror who conceals relevant facts or gives false answers during voir dire undermines the jury selection process, commits misconduct, and gives rise to an inference of implied bias. Therefore, defendant argues, Juror No. 10 should have been disqualified for cause and the failure to excuse him was structural error requiring reversal.
The Attorney General contends that “there is no evidence that Juror No. 10 intentionally misled the trial court about his relationship with Murphy. Further, the trial court did not abuse its discretion by declining to excuse Juror No. 10 because his answers indicated he would follow its instructions and properly apply the law. Moreover, because Murphy never testified, and the evidence against [defendant] was overwhelming, any error had to be harmless.”
“A sitting juror can be removed only for illness or other good cause. (§ 1089.)” (People v. Price (1991) 1 Cal.4th 324, 400.) “When the trial court discovers during trial that a juror misrepresented or concealed material information on voir dire tending to show bias, the trial court may discharge the juror if, after examination of the juror, the record discloses reasonable grounds for inferring bias as a ‘demonstrable reality,’ even though the juror continues to deny bias. [Citations.]” (Ibid.; see also People v. Marshall (1996) 13 Cal.4th 799, 843 (Marshall); People v. Cleveland (2001) 25 Cal.4th 466, 474 (Cleveland).)
“In reviewing a trial court’s decision either to retain or discharge a juror, we use the deferential ‘abuse of discretion’ standard. [Citations.] And we will uphold the decision unless it ‘ “falls outside the bounds of reason.” ’ [Citations.]” (People v. Earp (1999) 20 Cal.4th 826, 892.) “ ‘If there is any substantial evidence supporting the trial court’s ruling, we will uphold it.’ ” (Marshall, supra, 13 Cal.4th at p. 843; Cleveland, supra, 25 Cal.4th at p. 474.)
“[D]uring jury selection the parties have the right to challenge and excuse candidates who clearly or potentially cannot be fair. Voir dire is the crucial means for discovery of actual or potential juror bias. Voir dire cannot serve this purpose if prospective jurors do not answer questions truthfully. ‘A juror who conceals relevant facts or gives false answers during the voir dire examination thus undermines the jury selection process and commits misconduct. [Citations.]’ ” (In re Hamilton (1999) 20 Cal.4th 273, 295; In re Hitchings (1993) 6 Cal.4th 97, 111.) “[J]uror misconduct involving the concealment of material information on voir dire raises the presumption of prejudice [citations].... [¶] This presumption of prejudice ‘ “may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court’s examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party [resulting from the misconduct]....” ’ [Citations.]” (Hitchings, supra, 6 Cal.4th at p. 119; People v. Carter (2005) 36 Cal.4th 1114, 1208.)
“Although intentional concealment of material information by a potential juror may constitute implied bias justifying his or her disqualification or removal [citations], mere inadvertent or unintentional failures to disclose are not accorded the same effect. ‘[T]he proper test to be applied to unintentional “concealment” is whether the juror is sufficiently biased to constitute good cause for the court to find under Penal Code sections 1089 and [former] 1123 that he is unable to perform his duty.’ [Citation.]” (People v. McPeters (1992) 2 Cal.4th 1148, 1175 (McPeters).) “Whether a failure to disclose is intentional or unintentional and whether a juror is biased in this regard are matters within the discretion of the trial court. Except where bias is clearly apparent from the record, the trial judge is in the best position to assess the state of mind of a juror or potential juror on voir dire examination. [Citations.]” (Ibid.)
In this case, we conclude that the trial court did not abuse its discretion in refusing to discharge Juror No. 10. The record supports the court’s finding that Juror No. 10’s failure to disclose his relationship with Murphy was inadvertent and unintentional rather than deliberate. Murphy’s name was the penultimate name in a list of 58 names read to the entire jury venire, and the record is unclear whether Juror No. 10 recognized Murphy’s name at that time as that of his neighbor. Juror No. 10 later stated that, although Murphy had been his neighbor for some 11 years, they had very little contact. Although they had had disagreements in the past over paying for replacing a common wall and fence, the juror was currently on friendly speaking terms with both Murphy and his wife. The juror stated that he was not familiar with the reported facts of the case and that he was surprised to learn that his neighbor had been defendant’s prior counsel. The juror stated that he could be fair and impartial, and that he would follow the court’s instructions on how to evaluate a witness’s testimony. In addition, the court stated that it was willing to revisit the issue if Murphy testified, but Murphy did not testify, and defendant did not ask the court to revisit the issue. There is substantial evidence in the record to support defendant’s convictions on all counts charged and defendant does not contest the sufficiency of the evidence to support his convictions. Under these circumstances, we find that there is not a reasonable probability of actual harm to defendant (Hitchings, supra, 6 Cal.4th at p. 119) and that neither defendant’s right to a fair trial nor his rights under section 1089 were infringed. (McPeters, supra, 2 Cal.4th at p. 1175.)
Evidence of Tonia’s Bad Acts
During in limine motions before each trial, the prosecutor sought to exclude and/or defendant sought to admit evidence of 35 bad acts by Tonia that defendant specifies in his opening brief. Many of the acts involved Tonia’s two prior husbands or family members other than defendant, and they occurred many years prior to the stabbing incident at issue in this case. Some of the acts occurred after the stabbing incident. Defendant generally characterizes the incidents as follows: “At least 17 of these incidents involved Tonia’s prior use of force or violence.... At least 17 of these incidents involved Tonia’s threat of force.... Six of these incidents involved setting fires, or threatening to set fires.... At least six of these incidents involved lies or acts of moral turpitude.... At least three of these incidents involved false accusations, or threats of false accusations.” Defendant sought admission of the evidence as support for his third-party-culpability defense. The prosecutor argued, in part, that a third-party-culpability defense could not be presented based solely on evidence of a victim’s bad character.
They appeared to occur between 1995 and 1998.
We see no reason to further describe the alleged bad acts here, as the parties are familiar with the proffered evidence and it would not add anything to our discussion of the issue.
The court ruled prior to the first trial as follows: “At this time the Court is going to deny the defense motion and grant the People’s motion that Tonia Bone’s character not be put in. [¶] My feelings about the situation are as follows: Most of this proposed evidence concerning Tonia Bone’s character, what I would regard the propensity evidence, evidence suggesting she also has a disposition to commit the crimes that are alleged, going to be alleged that she committed which are not admissible pursuant to [section] 1101 of the Evidence Code, I feel that the reference of some of it is marginal due to the time that’s passed and, in fact, we are talking about different relationships.” “Its relevance is marginal compared with the likelihood that it would mislead and confuse the jury. And certainly there is an undue consumption of time apparently, obviously, just by today’s proceedings we spent more time talking about Tonia Bone than what took place on the day in question.” “I’m ruling it’s not admissible because I believe that it’s going to mislead and confuse the jury, and it’s going to take up an undue amount of time. And that for those reasons, along with any others that I may have indicated that I don’t think it’s appropriate, it’s not – it’s going to take the trial down the track that’s not appropriate.”
The parties submitted the matter to the trial court again before the second trial. At that time, the court ruled: “Well, again, the Court’s ruling was based on the [Evidence Code section] 352 argument as much as anything. I believe that we would spend more time talking about things that happened in the past, ultimately, both not only but past in regard to Ms. Bone but then, obviously, in terms of Mr. Lipska that we spend a lot more time talking about that kind of thing and litigating that matter than we would about what took place on the day in question, which is what we would like the jury to focus on. [¶] I think it has a real tendency to mislead the jury, to get the focus away from the issue they should be concerned about, which is what took place on the day in question. For those reasons, and for the reasons the Court stated previously when Mr. Murphy argued the motion, the Court’s going to grant the motion to exclude evidence of Tonia Bone’s character, other than things that may have taken place at or near the time in question.”
Defendant now contends that the trial court erred when it excluded all 35 of the proffered bad acts. He argues that the evidence should have been admitted (1) under Evidence Code section 1101, subdivision (b), to prove identity and that Tonia had the motive, intent, and state of mind to commit the murder of White and the attempted murder of her three children by arson; (2) under Evidence Code section 1101, subdivision (c), to impeach Tonia’s credibility; (3) under Evidence Code section 1103, subdivision (a)(1), to prove that Tonia, an alleged victim, had the character trait of violence and that she acted in conformity with that character trait; and (4) under Evidence Code section 1109 to show Tonia’s prior acts of domestic violence. Defendant contends that the exclusion of this evidence was prejudicial because the prosecution failed to introduce any evidence of why defendant would kill Billy and attempt to kill the children, because no witness testified to seeing defendant stab Billy, and because Tonia was the only witness to testify that defendant actually lighted the fire that burned down her home.
The Attorney General contends that the trial court properly excluded the proffered evidence as more prejudicial than probative under Evidence Code section 352. The Attorney General further contends that the proffered evidence was not admissible to prove third-party culpability.
In the recent case of People v. McWhorter (2009) 47 Cal.4th 318 (McWhorter), our Supreme Court discussed the well-settled rules regarding the admission of third-party-culpability evidence: “ ‘We repeatedly have indicated that, to be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant’s guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352. [Citations.]’ (People v. Bradford (1997) 15 Cal.4th 1229, 1325.) [¶] In People v. Hall (1986) 41 Cal.3d 826, we held that ‘the third-party evidence need not show “substantial proof of a probability” that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant’s guilt.’ (Id. at p. 833.) ‘Our holding [in Hall] did not, however, require the indiscriminate admission of any evidence offered to prove third-party culpability. The evidence must meet minimum standards of relevance: “evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” [Citation.] We also reaffirmed that such evidence is subject to exclusion under Evidence Code section 352. [Citation.]’ [Citation.]” (McWhorter, supra, 47 Cal.4th at pp. 367-368.)
“Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
The McWhorter court continued: “[I]n People v. Farmer (1989) 47 Cal.3d 888, we specifically addressed the application of Evidence Code section 1101 to proposed evidence regarding prior criminal conduct of a third party alleged to have committed the charged offense. The defendant in Farmer offered evidence of a third party’s history of violent crime, on the theory that it tended to identify him as the perpetrator. We noted under Hall, evidence linking a third person to the actual perpetration of the crime should be treated like any other evidence. [Citation.] We went on to hold, however, that the proffered evidence was properly excluded under Evidence Code section 1101, because it was offered not to show a fact other than the third party’s criminal disposition, such as motive or intent, but merely to show that the third party was the more likely perpetrator because he had a history of violence. [Citation.] Such evidence does not amount to direct or circumstantial evidence linking the third person to the actual perpetration of the crime.’ [Citation.]” (McWhorter, supra, 47 Cal.4th at pp. 372-373.)
In this case, as in Farmer, defendant offered evidence of Tonia’s history of violent conduct on the theory that it tended to identify her as the person who stabbed Billy and set fire to their mobile home with the children inside. And, as in Farmer, the proffered evidence was properly excluded under Evidence Code section 1101, because it was offered to show that Tonia was the more likely perpetrator because of her history of violence. “ ‘Such evidence does not amount to direct or circumstantial evidence linking the third person to the actual perpetration of the crime.’ [Citation.]” (McWhorter, supra, 47 Cal.4th at p. 373.)
In addition, we cannot say that the trial court exercised its Evidence Code section 352 discretion “ ‘in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” ’ ” (People v. Rodrigues, supra, 8 Cal.4th at p. 1125.) Most of the proffered testimony concerned acts by Tonia that allegedly occurred years before the incident at issue and that had nothing to do with Tonia’s relationship with defendant, with Billy, or with Tonia’s children. In addition, some of the proffered testimony was so nonspecific that it would require a mini-trial on the circumstances surrounding the alleged bad acts. This would require an undue consumption of time, and would confuse or mislead the jury, or focus their attention away from the testimony regarding what occurred on the night of November 29 and 30, 2005. Thus, the trial court acted well within its discretion to exclude all the proffered testimony under Evidence Code section 352.
As we have found that the court properly excluded the testimony under Evidence Code section 352, we need not address defendant’s contentions that the testimony was admissible under Evidence Code sections 1103 or 1109.
We further find that exclusion of all of the proffered testimony did not rise to the level of an unconstitutional deprivation of the right to present a defense. “Application of the ordinary rules of evidence such as Evidence Code section 352, generally does not deprive the defendant of the opportunity to present a defense [citation]....” (People v. Snow (2003) 30 Cal.4th 43, 90.) “Although completely excluding evidence of an accused’s defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense.” (People v. Fudge (1994) 7 Cal.4th 1075, 1103.)
In this case, other evidence of Tonia’s bad character and bad acts was admitted. Defendant’s testimony from the first trial, which was read to the jury at the second trial, included testimony regarding “problems” between defendant and Tonia when they were growing up together. Defendant testified that at various times when they were children, Tonia had spit in his face, cut him with a knife, and hit him with a bar stool. Defendant also testified that he stopped seeing Tonia and Billy sometime before the incident in question because they were using methamphetamine, that Tonia appeared to be under the influence of methamphetamine when defendant arrived at her home that night, and that she asked defendant to “kick [Billy’s] ass.” Ralph Garcia testified that Tonia was still married to him at the time she married Billy in 2003, and Tonia testified that her 2003 marriage license states that she had no prior marriages even though she had been married twice before. There was testimony that Tonia and Billy argued about her use of methamphetamine that day. And, both Vernon and Donna testified that Tonia did not appear to comfort or aid Billy prior to the arrival of medical attention, and that Billy tried to move away from Tonia while Vernon was tending to him. After reviewing the entire record, we find that the trial court’s ruling excluding the proffered evidence of the 35 bad acts at issue did not deprive defendant of the opportunity to present his third-party-culpability defense. (People v. Snow, supra, 30 Cal.4th at p. 80; People v. Fudge, supra, 7 Cal.4th at p. 1103.)
Imperfect Self-Defense Instruction
Defendant testified at both trials that after he followed Tonia into her home, he saw her searching for something. Because he thought, based on his past experiences with her, that she was looking for a weapon, he stabbed her in self-defense before she could harm him. The court instructed the jury on imperfect-self defense, which would reduce an attempted murder to an attempted voluntary manslaughter, pursuant to CALCRIM No. 604. In doing so, it omitted that portion of the standard instruction that states: “If you find that defendant knew that _____ had threatened or harmed others in the past, you may consider that information in evaluating the defendant’s beliefs. [¶] If you find that the defendant received a threat from someone else that (he/she) reasonably associated with _____ , you may consider that threat in evaluating the defendant’s beliefs.” (Italics added.) Defendant did not object below to the omission of this language.
The court instructed the jury: “An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill a person because he acted in imperfect self-defense or defense of another. The difference between complete self-defense or the defense of another, and imperfect self-defense or defense of another, depends on whether the defendant’s belief and need to use deadly force was reasonable. The defendant acted in imperfect self-defense or the defense of another if, one, the defendant took at least one direct but ineffective step towards killing; two, the defendant intended to kill when he acted; three, the defendant believed that he or someone else was in imminent danger of being killed or suffering great bodily injury; and, four, the defendant believed that the immediate use of deadly force was necessary to defend against the danger; but, five, the defendant’s beliefs were unreasonable. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. Belief in future harm is not sufficient, no matter how great or likely the harm is believed to be. The defendant must have actually believed there was imminent danger of violence to himself or to someone else. [¶] In evaluating the defendant’s beliefs, consider all the circumstances as they were known and appeared to the defendant. If you find that [Tonia] Bone threatened or harmed the defendant in the past, you may consider that information in evaluating the defendant’s beliefs. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find the defendant not guilty of attempted murder.”
On appeal, defendant contends that the court erred in omitting the language italicized above from the instruction, and that his counsel rendered ineffective assistance by failing to object to the omission. He argues that his testimony at trial supported giving that portion of the instruction sua sponte, even though he was not allowed to testify that he knew of some violent acts by Tonia against others. He further argues that, as trial counsel sought to admit evidence of Tonia’s violent acts against others, counsel should have also requested that the italicized portion of the instruction be given. The Attorney General contends that the court properly omitted the italicized language of the instruction, and that trial counsel was not ineffective for failing to request it be given as there was no evidence to support it.
People v. Breverman (1998) 19 Cal.4th 142, recited the rules governing sua sponte instructions. “ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” ’ ” (Id. at p. 154.) “[T]he sua sponte duty to instruct on all material issues presented by the evidence extends to defenses as well as to lesser included offenses [citation]....” (Id. at p. 157, italics omitted.) “In the case of defenses, [however,] a sua sponte instructional duty arises ‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ [Citation.]” (Ibid., italics omitted.)
In this case, the trial court properly instructed the jury on the general principles of law governing imperfect self-defense. In giving CALCRIM No. 604, the court instructed the jury on the specific elements of the defense, and that the burden was on the prosecution to prove beyond a reasonable doubt that defendant was not acting in imperfect self-defense. The court also instructed the jury that, if it found that Tonia threatened or harmed the defendant in the past, it may consider that information in evaluating defendant’s beliefs. Thus, the instruction was correct in law and responsive to the evidence presented at trial.
If defendant believed that the instruction was incomplete, defendant was required to request additional appropriate language. (People v. Sanders (1995) 11 Cal.4th 4475, 532; People v. Maury (2003) 30 Cal.4th 342, 426.) However, defense counsel cannot be faulted for failing to request an instruction that was only responsive to evidence that the trial court excluded. “Representation does not become deficient for failing to make meritless objections” or claims. (People v. Ochoa (1998) 19 Cal.4th 353, 463.)
Hearsay Testimony
The court ruled in limine prior to defendant’s first trial that it would not admit testimony regarding statements made by Billy to his mother and Vernon to the effect that Billy was afraid that Tonia might harm him. The court also excluded a derogatory statement made by Tonia about Billy to his mother, and a derogatory statement Tonia made to Billy on the day of his murder that was overheard by Vernon. Prior to defendant’s second trial, defendant’s first counsel, Murphy, filed a motion seeking to admit, in part, the two statements made by Billy to his mother, one statement Billy made to Vernon, and the statement Tonia made to Billy’s mother, as third-party-culpability evidence. The prosecutor filed motions seeking to exclude, in part, Billy’s statements to his mother and to Vernon, and the statement Tonia made to Billy that Vernon overheard.
After Murphy was replaced as defendant’s trial counsel, new counsel did not file any motions in limine and did not file opposition to the prosecutor’s motions. At the hearing on the in limine motions, new counsel “reiterated” Murphy’s motions in limine, but submitted both the prosecutor’s motions and Murphy’s motions without argument. The court granted the prosecutor’s motions and excluded all the statements. The court did not explicitly rule on any defense motions.
On appeal, defendant contends that the court erred in excluding all these proffered statements. He acknowledges that the statements were hearsay, or double hearsay, but argues that the statements were admissible to show the state of mind of the victims, Tonia and Billy, at the time of the offenses. (See Evid. Code, § 1250.) The Attorney General contends that defendant has forfeited this claim by failing to specifically raise it below. The Attorney General further contends that the court properly excluded the statements as improper third-party-culpability evidence.
“An appellate court may not reverse a judgment because of the erroneous exclusion of evidence unless the ‘substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means.’ [Citations.]” (People v. Livaditis (1992) 2 Cal.4th 759, 778.) Defendant did not seek admission of the statements in question to show either Tonia’s or Billy’s state of mind at the time of the offenses, he only sought to admit them as evidence of third-party culpability. Therefore, he has forfeited the claim here that the evidence should have been admitted to show Tonia’s and Billy’s states of mind. And, to the extent that defendant contends that the evidence was admissible to support his third-party-culpability defense theory, we find that the court properly excluded the statements for the same reasons we expressed above regarding the admission of proffered bad act evidence as third-party-culpability evidence.
Ineffective Assistance of Counsel
Defendant contends that defense counsel at the second trial rendered ineffective assistance by failing to present exculpatory evidence from the first trial at the second trial. That exculpatory evidence was as follows: (1) Elena was shown the knife blade found next to the destroyed mobile home, and Elena said that it did not belong to her missing knife; (2) Elena told an officer that her missing knife had a six-inch blade, but the pathologist reported that Billy’s upper stab wound was seven inches long; (3) Donna testified that she was not afraid of defendant; and (4) C. testified that, on the day of the offenses, Tonia was very angry and was throwing things around. Defendant contends that the failure to present this evidence was prejudicial because the omitted facts were crucial to his defense, there could be no strategic reason for not presenting the evidence, and the evidence “could well have made the difference.” The Attorney General contends that it is not reasonably probable that a result more favorable to defendant would have occurred had the evidence been presented at defendant’s second trial.
“To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings.” (People v. Cunningham (2001) 25 Cal.4th 926, 1003; Strickland v. Washington (1984) 466 U.S. 668, 687-694.) “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ (Strickland v. Washington, supra, 466 U.S. at p. 694;...)” Cunningham, supra, at p. 1003.) “A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. ‘If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.’ [Citations.]” (Ibid.)
The record in this case does not reveal the reasons for counsel’s omissions, and counsel was not asked to explain them. And, defendant has not convinced us that counsel’s omissions fell below an objective standard of reasonableness, or that there is a reasonable probability that he would have obtained a more favorable result at defendant’s second trial had counsel sought to admit the previously admitted testimony.
Counsel could have declined to offer the prior testimony, concluding that it was not strong exculpatory evidence, and/or that the exculpatory testimony counsel did present was stronger. We do not find such a conclusion unreasonable. In addition, as C.’s statements to the police the day after the incident and her testimony at trial was substantial evidence of defendant’s guilt, we find that there is not a reasonable probability that defendant would have obtained a more favorable result had the testimony defendant points to here been admitted at his second trial.
Cumulative Error
Defendant contends that, should this court find error due to two or more of his contentions above even though we find no prejudicial error, the cumulative prejudice of such errors nevertheless warrants reversal. Our Supreme Court has recognized that “a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844.) However, as we have found no error, this contention has no merit.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MIHARA, J., MCADAMS, J.