Opinion
D072465
06-08-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL MADURO JR., Defendant and Appellant.
Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD267230) APPEAL from a judgment of the Superior Court of San Diego County, David M. Rubin, Judge. Affirmed. Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
After midnight in the business district of Pacific Beach, a fight broke out, with seven persons on one side and two on the other. A jury convicted defendant and appellant Michael Maduro Jr., a member of the smaller group, of two counts of assault with a deadly weapon, a knife (Pen. Code, § 245, subd. (a)(1)). Additional allegations were found true that on each count, he personally used a deadly or dangerous weapon on the victim (§ 1192.7, subd. (c)(23)), and personally inflicted great bodily injury on each (§§ 1192.7, subd. (c)(8), 12022.7, subd. (a)). Maduro was sentenced to a total term of seven years, and he appeals.
All further statutory references are to the Penal Code unless noted.
Maduro first argues that prejudicial instructional error occurred at his trial, on the limits of his permissible defense of the other person on his side in the altercation, the man he was talking to before the hostilities began. Maduro disagrees that any mutual combat situation was arguably present that justified such an instruction. (People v. Ross (2007) 155 Cal.App.4th 1033, 1046-1047 (Ross) [" 'mutual combat' " consists of "fighting by mutual intention or consent," shown by an express or implied agreement]; CALCRIM No. 3471.) Maduro further contends the court should not have instructed the jury about how to evaluate evidence he left the scene of the fight, but was shortly thereafter intercepted by police there, on whether his actions qualified as flight showing a consciousness of guilt. (CALCRIM No. 372.)
Maduro also argues the trial court prejudicially abused its discretion by overruling his objection to comments made by the prosecutor in closing argument in discussing the use of deadly force, that arguably inappropriately compared Maduro's use of a knife to the hypothetical use of a gun. Maduro believes that cumulative error justifies reversal of his convictions. We disagree and affirm.
I
BACKGROUND: THE ALTERCATION
A group of seven young men (the group) went to Pacific Beach for an evening of barhopping, to celebrate J.L.1's bachelor party, and two of them ended up being stabbed by Maduro. Other participants were M.S., the designated driver, who had about two beers that night, and his uncle R.S. T.C., J.L.2, and two others were also in the party.
Around 2:00 a.m., the members of the group were all in a good mood but not feeling or looking drunk, and they started to walk back to their cars. The group went past a parking lot where a man in a white baseball hat, "Mr. Hat," was standing and saying argumentative things to various people going by, such as "keep walking, motherfucker." As shown on a surveillance video from a nearby business, Mr. Hat (whose identity remains unknown) was also talking off and on to Maduro, who was wearing a white hooded sweatshirt or sweater.
J.L.1 and his friends noticed how Mr. Hat, who had a face tattoo and his hands in his pockets, was talking aggressively to passersby. As J.L.1's group approached, Mr. Hat asked them if they were "with those punk motherfuckers," some people who had just gone by. Mr. Hat was about two feet from J.L.1's face, and J.L.1 said no, but not to talk to him like that. His friend T.C. perceived that J.L.1 was being "disrespected" by Mr. Hat, and started punching Mr. Hat. J.L.1 joined in and they punched Mr. Hat in the head several times. Several others from the group also started grabbing and hitting Mr. Hat, while T.C. tried to lift him against the wall. M.S. joined in, punching Mr. Hat in the stomach and head. M.S. and J.L.1 thought they saw Mr. Hat had a knife, but neither J.L.2 or R.S. could see one.
While Mr. Hat was being slugged by T.C., J.L.1 and M.S., Maduro suddenly joined in their confrontation by running up behind M.S. with a knife, stabbing him in the back and breaking a rib. M.S. turned around and saw a shiny reflection and realized Maduro had a knife or blade in his right hand. M.S. started to punch and push Maduro, and yelled that he had a knife. M.S.'s left arm was deeply slashed, and he felt winded and fell down. He and R.S. ran away from the knife.
As they ran, M.S. and R.S. saw Maduro going toward J.L.1, who was busy with the group punching Mr. Hat, with all of them hitting the ground at times. Maduro stabbed J.L.1 in the back. When J.L.1 turned around, he saw that Maduro was swinging his arm as though he had a knife. J.L.1 hit him and Maduro stabbed J.L.1 in the thigh. J.L.1 also sustained a neck wound.
Police Sgt. Robert Bowman was on patrol in his vehicle, and he happened upon this large fight. He arrived at the scene with lights and sirens going, to find that a person later identified as Maduro was fighting in the middle of the street with another Hispanic male. Sgt. Bowman saw the other man punching Maduro and then running off, but he could not tell where Maduro went after they left the middle of the street. Mr. Hat ran away and was never found.
Officer Joshua Clabough joined the sergeant at the scene of the fight and they talked to M.S., who reported he had been stabbed, as had J.L.1. A manager of a local bar told the officer that he saw a man with blood on his sweater crossing the street, pointing him out to officers as the man came around the corner across the street, heading east on the sidewalk. It was Maduro, walking in the general direction of the scene. Clabough intercepted him, activating his body-worn camera and recording the contact. The officer noticed Maduro had blood on his white sweatshirt, but not on his face. Maduro did not volunteer any information, except for saying the blood on the sweatshirt was his own, from being punched in the nose. Police patted Maduro down and looked for weapons in the area, but nothing was found. Maduro was released, but later arrested and charged.
II
TRIAL PROCEEDINGS
At Maduro's first trial, the jury acquitted him of one count of slashing R.S., but it was unable to reach a verdict on the two counts involving J.L.1 and M.S. Another jury was convened and those two victims were subpoenaed to testify under immunity. R.S. also testified, as did another of J.L.1's group, J.L.2. The responding police officers testified and the court admitted into evidence the nearby business's surveillance video. Also, the jury viewed and heard the video of the officer's body-worn camera footage of Maduro's interview, explaining his bloody nose at the scene. They reviewed a transcript of the interview.
According to the investigating detective's testimony, medical records showed that M.S.'s blood alcohol level when admitted to the hospital was .04 percent. M.S. had wounds in the right chest and back, about one-inch deep. His arm wound was several inches deep and about 15 centimeters long.
Medical records showed that J.L.1's blood alcohol concentration that night was .15 percent, which the treating doctor said could have lowered his inhibitions and affected his behavior. J.L.1 had a deep wound on his thigh and stab injuries to his back and neck. The doctor testified that fist fights are generally dangerous, due to risks of blunt force trauma and internal bleeding.
The investigating detective talked to both victims and to R.S. When he spoke to J.L.1 at the hospital, he asked him if he still thought that Mr. Hat had swung at him first, since the video did not show that to be the case. J.L.1 said what was on the video must have been what happened. The detective observed that the surveillance video was pretty grainy and it was difficult to see whether Mr. Hat had a knife or not. From the detective's viewing of the video, he thought that all the injuries the victims received were consistent with the actions of Maduro as shown in it, except for one cut on J.L.1's chin. Some of the fight occurred off camera toward the very end.
At the close of testimony, the court discussed jury instructions with counsel. They went into detail on whether the court should give CALCRIM No. 3471 (Right to Self-Defense: Mutual Combat or Initial Aggressor), as modified to place the definition of "mutual combat" up front. Defense counsel said, "I'm good with that," and that it was fine with him. More generally, the court gave CALCRIM No. 3470 on the right to self-defense or defense of another.
Among other instructions, the trial court read CALCRIM No. 3472 (Right to Self-Defense: May Not Be Contrived). Although Maduro's opening brief challenged the giving of that instruction, his reply brief has withdrawn that issue, and we need not discuss it further.
Among the proposed jury instructions discussed was CALCRIM No. 372, dealing with inferring consciousness of guilt from a defendant's flight. Defense counsel objected, "I think that there is limited evidence of flight, and it is unduly prejudicial to instruct the jury that they can consider what the defendant did in this case as flight." The court went ahead and instructed the jury in that language: "If the defendant fled immediately after the crime was committed or after he was accused of committing the crime, that conduct may show that he was aware of his guilt. [¶] If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself." (CALCRIM No. 372.)
Among other standard instructions given, the trial court explained to the jury that under CALCRIM No. 200, some of the instructions given might not apply, and the jury should "follow the instructions that do apply to the facts as you find them." In CALCRIM No. 222, the jury was told that statements of attorneys are not to be considered facts or evidence.
During closing argument, the prosecutor said that in deciding whether Maduro was justified in using force, the jurors should consider whether he could have lawfully used a gun at the time, as opposed to stabbing with a knife. Defense counsel raised an objection that the prosecutor's question "[m]isstates the law and conflicts with the facts in this case. There's no gun in this case." The trial court responded, "No. It's argument. Overruled." The prosecutor continued to ask the jury whether Maduro's acts were necessary, or if they were unjustified lethal force, such as if a shooting had occurred under similar circumstances.
The jury returned a verdict convicting Maduro as charged. The court imposed a total prison term of seven years as follows: for stabbing M.S., two years, plus three years for the great bodily injury enhancement. For stabbing J.L.1, Maduro received a consecutive one-year term, and a year for the great bodily injury enhancement. He appeals.
III
MUTUAL COMBAT INSTRUCTION
A. Issues Presented
On appeal, Maduro argues the trial court should not have given the mutual combat instruction, for lack of substantial evidence that he voluntarily agreed to fight M.S. and J.L.1 before the stabbings occurred. Consistent with his claim of legitimate defense of another (Mr. Hat, who was being pummeled by several in the group), Maduro argues his entry into the scene did not occur until well after the assault began. In particular, Maduro contends that the prosecutor inappropriately grouped him together with Mr. Hat, in asking the jury about how "they" forcefully responded to the fistfight, "Did they have the right?" Maduro points out that the absent Mr. Hat was not the one on trial for the offenses, and claims that he, Maduro, was "uninvolved in the inception of the fight."
In Maduro's view, the only real question for the jury was whether he, a bystander, reasonably believed force became necessary, when he saw Mr. Hat being kicked and punched by at least three people. Since this was the second trial, and the hung jury from the first trial was instructed similarly, Maduro claims the mutual combat instruction must have been misleading and improperly suggested he and Mr. Hat were the same actor, for purposes of evaluating his claim of legitimate defense of another.
The People respond that the jury was also required to evaluate whether Maduro used excessive force in his response, and the instruction was essential on that question in the mutual combat scenario shown by the evidence. In particular, the People point out that when each of the two victims was initially stabbed in the back, he turned and confronted Maduro, and arguably, those second stabs (at least) must have been inflicted by Maduro while "mutual combat" was going on.
B. Legal Principles; No Forfeiture Found
The People initially contend that Maduro has forfeited this instructional error claim, since at trial, defense counsel said that giving the modified mutual combat instruction was fine with him. We decline to decide the issue on the basis of forfeiture. The trial court had the duty to instruct on all material issues presented by the evidence, even absent any request by counsel, sua sponte. (People v. Breverman (1998) 19 Cal.4th 142, 157.) The sua sponte duty to instruct applies where there is substantial evidence to support a defense and the defendant is relying on the defense, or the proposed defense is not inconsistent with the defendant's theory of the case. (People v. Villanueva (2008) 169 Cal.App.4th 41, 49.) If this instruction were an incorrect statement of the law or if error on this point affected the defendant's substantial rights, it could be reviewed on appeal even without an objection below. (People v. Franco (2009) 180 Cal.App.4th 713, 719 (Franco).)
To ascertain whether claimed instructional error affected the substantial rights of the defendant, we would have to examine the merits of the claim, " ' "at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." ' " (Franco, supra, 180 Cal.App.4th 713, 719.) We engage in this exercise and proceed to the merits of Maduro's claims that the record did not support the giving of the mutual combat instruction.
"We review de novo whether a jury instruction correctly states the law. [Citations.] Our task is to determine whether the trial court ' "fully and fairly instructed on the applicable law." [Citation.]' [Citation.] When instructions are claimed to be conflicting or ambiguous, 'we inquire whether the jury was "reasonably likely" to have construed them in a manner that violates the defendant's rights.' [Citation.] We look to the instructions as a whole and the entire record of trial, including the arguments of counsel. [Citations.] We assume that the jurors are ' " 'intelligent persons and capable of understanding and correlating all jury instructions . . . given.' " ' [Citation.] If reasonably possible, we will interpret the instructions to support the judgment rather than to defeat it. [Citation.] Instructional error affects a defendant's substantial rights if the error was prejudicial under the applicable standard for determining harmless error." (Franco, supra, 180 Cal.App.4th at p. 720; italics omitted; see People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 433.)
C. Relevant Factors and Analysis
Maduro's reply brief withdrew any appellate arguments regarding contrived self-defense, and this mutual combat analysis must focus on his claims of justifiable defense of another, Mr. Hat. The surveillance video evidence showed Maduro talking to Mr. Hat before the incident occurred, and Maduro did not dispute he was acquainted with him. The jurors learned that Mr. Hat was nowhere to be found and was not on trial, but they were nevertheless required by the evidence to consider Maduro's apparent relationship with him, as part of the self-defense scenario. We cannot agree with Maduro that the instructions were ambiguous in referencing "the defendant" throughout. Under CALCRIM No. 3470, the jury was told the People had the burden of proving beyond a reasonable doubt that the defendant, identified as Maduro, did not act in lawful self-defense or defense of another. Defense of another with force would be justified if the defendant reasonably believed the opponents posed an imminent risk of great bodily injury to him, and if the amount of force used was reasonable.
As given here, CALCRIM No. 3471 in relevant part defined a fight as "mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense or defense of another arose. A person who engages in mutual combat has a right to self-defense or defense of another only if: (1), he actually and in good faith tried to stop fighting; (2), he indicated by word or conduct to his opponent in a way that a reasonable person would understand that he wanted to stop fighting and that he had stopped fighting; and (3), he gave his opponent a chance to stop fighting. If the defendant meets these requirements, he then had a right to self-defense of another if the opponent continued to fight." (Italics added.)
As given here, CALCRIM No. 3471 also stated, "However, if the defendant used only nondeadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting, communicate the desire to stop the opponent or to give the opponent a chance to stop fighting." There was no substantial evidence that Maduro used anything but deadly force, although he does argue that knife use can be less deadly than gun use. (See pt. IV, post.)
The court in Ross, supra, 155 Cal.App.4th 1033, 1046-1047 interpreted previous case law defining "mutual combat" as conduct consisting of "fighting by mutual intention or consent, as most clearly reflected in an express or implied agreement to fight. . . . [T]here must be evidence from which the jury could reasonably find that both combatants actually consented or intended to fight before the claimed occasion for self-defense arose." (Italics omitted.) The court further explained, "The test is not whether the force used appears excessive in hindsight but whether it appeared reasonably necessary to avert threatened harm under the circumstances at the time. The law grants a reasonable margin within which one may err on the side of his own safety, and so long as he is found to have done so reasonably, no abuse of the right of self-defense should be found to have occurred." (Id. at p. 1057; see People v. Heffington (1973) 32 Cal.App.3d 1, 14 [when a deadly weapon is used in response to an initial "weaponless assault," the courts assume that "reasonable" jurors would consider the relationship of the two types of force in deciding the scope of lawful self-defense].)
As the claimant of instructional error, Maduro has the burden of showing there was no substantial evidence in support of the prosecution's offered theories, regarding the respective roles of Mr. Hat and Maduro in the altercation. To argue the mutual combat instruction was not a proper statement of the law, Maduro focuses on the timing of his participation in the incident, by contending that no substantial evidence showed that he was part of the initial aggression. Instead, it was Mr. Hat who made comments to J.L.1 and got in his face, and it was T.C. who first tackled Mr. Hat. A few minutes later, Maduro showed up in the surveillance video, making stabbing motions toward J.L.1 and M.S., not once each but twice each.
Maduro continues to claim that any disproportionate use of force occurred only initially, when J.L.1's group decided to respond to Mr. Hat's words by punching and kicking him. (See People v. Enraca (2012) 53 Cal.4th 735, 760 [insults or gang-related challenges not deemed sufficient provocation for a manslaughter case].) Testimony was presented by a doctor on how fistfights are generally dangerous, due to risks of blunt force trauma and internal bleeding. Also, Mr. Hat had confronted not only this group, but also other people, who were able to successfully ignore him and walk away. We do not condone the brawl that happened here, but instead examine the entire record for support of the challenged instruction, as requested.
The court's strict analysis of the "mutual combat" term in Ross was in part founded on a distinction that the defendant there had engaged with only one person, as opposed to a group. (Ross, supra, 155 Cal.App.4th at p. 1046, fn. 16 ["Determining what constitutes mutual combat in the setting of a gang battle or war may present unique difficulties."].) Under the current circumstances, this jury was properly asked to decide if Maduro's actions demonstrated he had reached an express or implied agreement to fight with any of the individuals in the group with whom Mr. Hat was already fighting. (Id. at p. 1050.) During closing argument, the prosecutor reminded the jury that the witnesses differed on whether Mr. Hat had been shown to have a knife during the altercation. Possibly, the metallic gleam showing up on him in the surveillance video could have been a watch he was wearing, instead of a knife. The prosecutor accordingly suggested two alternative theories to the jury, that if Mr. Hat had a knife, then "it's game over," and Maduro was guilty because Mr. Hat did not have a lawful right to self-defense, and neither did Maduro have any right to intervene on Mr. Hat's behalf. However, if the jury were to decide that Mr. Hat did not have a knife, the circumstances of the punching and kicking fight arguably did not authorize Maduro to use a deadly weapon to defend Mr. Hat or himself, and it could conclude that he was using more force than was reasonably necessary.
In response at trial, defense counsel stated, "[T]he prosecution has not proven beyond a reasonable doubt that Mr. Hat had a knife. And that means that we get to talk about whether or not [Maduro] had a right to defend Mr. Hat." The jury heard different arguments about what the evidence showed about the background giving rise to the respective uses of force. The mutual combat instruction was properly read to this jury to assist its evaluation of Maduro's conduct in the factual context shown by the evidence. The jury was given the opportunity to consider whether Mr. Hat was the initial aggressor, which affected the legitimacy of Maduro's claim of justifiable defense of another. They were given the option of treating Maduro and Mr. Hat as a unit, or separately, for purposes of deciding whether Maduro, the only defendant known to be on trial, had developed a reasonable belief that Mr. Hat needed to be defended with such deadly force.
Regardless of whether the evidence supported Maduro's claim he formed a reasonable belief that he initially needed to stab each victim once, the evidence showed that another separate, later stab took place for each. At least for the second set of stabs, the prosecution supplied enough evidence to support an instruction on whether the jury could find Maduro's personal attacks "were struck in the course of a fight into which defendant and [the victim] mutually consented to join." (Ross, supra, 155 Cal.App.4th at p. 1050.) Upon being struck when Maduro approached, M.S. turned from his fight with Mr. Hat toward Maduro, who then fought back and cut open his arm. And while J.L.1 was trading punches with Mr. Hat, Maduro knifed J.L.1 in the back and J.L.1 turned around and began swinging at Maduro, who hit back and stabbed J.L.1's thigh. This evidence provided substantial support for an instruction requesting the jury to decide if Maduro had ever indicated to his opponents, between stabs, that they had a chance to stop fighting against him in particular.
Since only two counts of assault were charged, but at least four stabs caused injury to these victims, the prosecutor reminded the jury that they must reach a unanimous decision on which of the stabs constituted the basis for each conviction. The initial stab to M.S. was sufficiently forceful to break his rib, and the second cut his arm open. J.L.1 received a stab in the back and then a deep wound to the thigh. Maduro's timing argument cuts both ways, partly because the evidence was equivocal on whether Mr. Hat had a knife during the initial part of the fight. Substantial evidence was presented to allow the jury to decide whether Maduro had reached an implied agreement with each of the victims, at some point, to engage in mutual combat with them. The jury was required to examine the evidence on whether he had a reasonable and objective basis to believe that Mr. Hat needed defending, to the extent of Maduro's repeated use of a knife to inflict great bodily injury. Although Maduro argued he did not originally inject himself into the fray, the jury did not have to accept his version of how much force was reasonable.
Maduro focuses on the previous mistrial to argue there must have been prejudicial instructional error, "because the first jury demonstrated serious confusion about how the mutual combat instruction interacted with the defense of another instruction. The first trial resulted in a hung jury on both Counts 1 and 2, indicating that the case was a close call for at least one member of the jury." Since that was a different trial with different evidence, this argument carries little weight. These jurors were told they should ignore any instructions they concluded were inapplicable to the facts of the case. (CALCRIM No. 200.) The parties vigorously disputed the facts and, at the end of the day, the jury rejected Maduro's version of the events and convicted him of each assault.
Because the mutual combat instruction had substantial evidence to support it, it was appropriately given and we need not address Maduro's arguments about the proper standards for evaluating harmful error. (Ross, supra, 155 Cal.App.4th 1033, 1054-1055.)
Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836. --------
IV
CLAIMS OF PROSECUTORIAL MISCONDUCT OR ERROR
A. Issue and Relevant Facts
Maduro next argues that the prosecutor's closing argument was unduly inflammatory, in addressing the issue of proportionate use of force. The prosecutor pointed out to the jury that group fights like this can change or fluctuate. Initially, the prosecutor suggested that if a new threat, such as a gun, were withdrawn or brought under control, no responsive lethal force would be authorized upon the disappearance of that threat. He then said that as to each of the incidents of stabbing, the jury should decide whether reasonable or proportional force was used. Later, he used the gun example again, talking about the back and forth during the group fight: "Is that such sudden and deadly force that it would be okay for [Maduro] to pull out a gun and shoot [M.S.] right in the back? Lethal force, a gun. Is it okay for him to pull out a gun and shoot [M.S.] at that moment right in the back? Does that need to happen? Does [M.S.] need to die right then? No." The prosecutor repeated, "Could [Maduro] pull a gun out right there and shoot [M.S.] in the back?" Defense counsel objected that such a question "[m]isstates the law and conflicts with the facts in this case. There's no gun in this case." The trial court decided that as argument, the reference was not inappropriate, and overruled the objection. The prosecutor again suggested that if Maduro had pulled out a gun and shot the victim, that would be excessive lethal force.
After the defense's closing argument, which claimed Maduro had used only a reasonable degree of responsive force, the prosecutor said in rebuttal that it would not have been an exercise of reasonable force if, when a fistfight broke out, someone pulled out a gun and shot someone. He argued that a reasonable person would have found that type of force was unnecessary, and that just because Maduro's own use of force had ultimately succeeded in getting M.S. to retreat from the knife, it did not mean only "reasonable" force was used here.
B. Applicable Standards
Because Maduro made a reasonably prompt objection to this form of argument, we deem the issue to be preserved for review. He argues that the comparisons made by the prosecutor between a fight using fists and a knife, and a hypothetical street shooting, qualified as the kind of misstatement of fact and law that can result in reversible error. "A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.' " (People v. Cole (2004) 33 Cal.4th 1158, 1202 (Cole); People v. Parson (2008) 44 Cal.4th 332, 359.)
A prosecutor can commit misconduct by misstating or mischaracterizing the evidence in argument to the jury. (People v. Hill (1998) 17 Cal.4th 800, 823 (Hill); People v. Harrison (2005) 35 Cal.4th 208, 249.) "[I]t is misconduct [for a prosecutor] to misstate the law during argument." (People v. Huggins (2006) 38 Cal.4th 175, 253, fn. 21.) California prosecutors are otherwise provided with a wide degree of flexibility during arguments. (Hill, supra, at p. 819.) " ' " 'The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.' " ' " (Ibid.) It is not appropriate for an argument to include statements of supposed facts which have no basis in the evidence. (Id. at p. 828.)
When a claim of prosecutorial misconduct focuses on the prosecutor's remarks before the jury, " 'the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' " (Cole, supra, 33 Cal.4th 1158, 1202-1203; italics added.) "In conducting this inquiry, we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements." (People v. Frye (1998) 18 Cal.4th 894, 970.) A conviction will not be reversed for prosecutorial error or misconduct unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. (People v. Tully (2012) 54 Cal.4th 952, 1010.)
C. Analysis
Maduro's defense asserted entitlement to use an amount of force that was reasonably necessary for repelling the group's attacks on Mr. Hat. Maduro admits it was a close question on whether he had used reasonable force against two members of the group. He contends that the prosecutor's argumentative statements about guns were reasonably likely to adversely affect his defense, because they wrongfully equated the use of different types of weapons, although some are more dangerous than others.
The applicable test for determining reasonable force "is not whether the force used appears excessive in hindsight but whether it appeared reasonably necessary to avert threatened harm under the circumstances at the time. The law grants a reasonable margin within which one may err on the side of his own safety, and so long as he is found to have done so reasonably, no abuse of the right of self-defense should be found to have occurred." (Ross, supra, 155 Cal.App.4th 1033, 1057; italics added.)
In Ross, the court found fault with the prosecutor's argument to the jury that "conflated defendant's conduct with the consequences it produced . . . .," and continued, "punching one's assailant in the face is not like shooting him in the head or stabbing him in the heart." (Ross, supra, 155 Cal.App.4th at pp. 1053, 1057; italics omitted.) In that context of a verbal argument between a man and woman who were each acting belligerently, which resulted in the man punching the woman in the face after she slapped him, such comparisons of the potential for injury from shooting or stabbing were deemed unfair. (Ibid.) The court in that case was concerned that the jury was not allowed to decide whether the man's response to the woman's slap was excessive at the outset, for averting a perceived threat of violence to him. Instead, the jury instruction on "mutual combat," given without any explanation on how to apply that term under the circumstances, was incomplete and misleading. (Id. at pp. 1043-1044.)
But here, the prosecutor's closing argument permissibly kept the focus upon whether Maduro had shown he was privileged to use his knife with deadly force, within the given circumstances of the fistfight. In explaining what qualifies as a deadly weapon, the prosecutor also mentioned that although a rock was not an inherently deadly weapon, one could be used to hit someone in the head and thereby cause serious injury. The prosecutor was not suggesting that Maduro had actually used a gun or a rock, or inflicted other types of wounds, but was instead using hyperbole to highlight the proportionality issue by presenting it more starkly. The relevant point being made was not whether a knife is usually more innocuous than a gun, but rather whether under these circumstances, Maduro's knife was utilized as a deadly weapon for inflicting great bodily injury, as a proportional response to witnessing the violence against Mr. Hat.
The People's reference to People v. Trujeque (2015) 61 Cal.4th 227, 260, for a discussion of joinder and severance issues where different weapons were allegedly involved in the charges, does not add anything to the analysis here. (Ibid. ["[I]t is debatable whether a gun or a knife is a more dangerous weapon."].) In our case, the prosecutor's passing references to gun use occurred within a lengthy set of arguments, and do not appear to have created a danger of distracting the jury from the central issues identified to it. These were whether the circumstances of the fistfight justified Maduro in the moments that he used his knife, and whether he did so in a manner that was proportional to the threats presented to Mr. Hat by the group.
Further, the jurors received instructions that any inconsistency they perceived between the jury instructions and the arguments of counsel, which were not evidence, were to be resolved in favor of the instructions. (CALCRIM Nos. 104, 200, 222.) We presume the jury in this case understood and followed the trial court's instructions. (People v. Brady (2010) 50 Cal.4th 547, 566, fn. 9.) We need not consider harmless error issues on the prosecutorial misconduct claim, since no error or prejudice occurred.
V
FLIGHT INSTRUCTION; CUMULATIVE ERROR
A. Legal Standards
A trial court should properly give a flight instruction " 'whenever evidence of the circumstances of [a] defendant's departure from the crime scene or his usual environs, . . . logically permits an inference that his movement was motivated by guilty knowledge.' " (People v. Lucas (1995) 12 Cal.4th 415, 470.) The "instruction is properly given if the jury could reasonably infer that the defendant's flight reflected consciousness of guilt." (People v. Howard (2008) 42 Cal.4th 1000, 1020.) "In this context, flight 'requires neither the physical act of running nor the reaching of a faraway haven' but it does require 'a purpose to avoid being observed or arrested.' " (People v. Jurado (2006) 38 Cal.4th 72, 126.) The circumstances of a person's departure from a crime scene, such as hiding a weapon, may sometimes be used to demonstrate such a purpose of evasion. (Ibid.)
De novo review generally applies to claims of impropriety of giving jury instructions. (People v. Posey (2004) 32 Cal.4th 193, 218.) For reviewing alleged error in giving the flight instruction, harmless error standards are utilized. (People v. Silva (1988) 45 Cal.3d 604, 628; People v. Crandell (1988) 46 Cal.3d 833, 870 [addressing erroneous flight instruction]; Watson, supra, 46 Cal.2d 818, 836.) This instruction did not assume that the defendant's flight was established, "but instead permitted the jury to make that factual determination and to decide what weight to accord it." (People v. Carter (2005) 36 Cal.4th 1114, 1182-1183.) The courts do not specify any defined period related to the offense during which a defendant's flight must occur. (Ibid.)
The "cautionary nature" of the instruction is somewhat beneficial to the defense, by "admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory." (People v. Jackson (1996) 13 Cal.4th 1164, 1224; People v. Boyette (2002) 29 Cal.4th 381, 438-439.) "[T]he facts of each case determine whether it is reasonable to infer that a defendant's flight shows consciousness of guilt." (People v. Mason (1991) 52 Cal.3d 909, 941 (Mason).) If a defendant has committed other crimes, and his knowledge of those crimes might explain why he fled from authorities, that factor affects the weight, not the admissibility, of the evidence of flight. (Id. at p. 942.)
When identity of the perpetrator is in issue, it is proper to instruct on flight if there is some admissible evidence connecting the flight with the defendant as the person who fled, "and if such evidence 'is relied upon as tending to show guilt.' " (Mason, supra, 52 Cal.3d 909, 943.) Flight, alone, is not sufficient to establish guilt. The jury should proceed by deciding first whether the person who fled was the defendant. If so, it decides how much weight to accord to flight, in resolving the other issues bearing on guilt. (Ibid.)
B. Relevant Facts
When the police arrived at the scene, Sgt. Bowman saw Maduro fighting someone in the street, but he lost track of Maduro after both of those men ran away. The prosecutor later argued Maduro "was already running away" by the time the police arrived. Although that is not completely inaccurate, the evidence also showed that while the police officers were interviewing other people at the scene, a bar manager pointed Maduro out to them as somebody who had been involved in the fight. By then, Maduro was across the street moving toward the scene, not away from it. At that point, he was intercepted and interviewed by the officer with the body camera, and explained why he had blood on his sweatshirt from being punched in the nose, although his face was not bloody. He did not have a knife on him, and none was found in the vicinity, a business district with a lot of trash cans and plantings. The officer released him at the scene, but he was later apprehended.
The trial court proposed instructing the jury that if it concluded Maduro fled or tried to flee the scene immediately after a crime was committed, it could consider this evidence to infer he had an awareness of his guilt of the crime. (CALCRIM No. 372.) The defense objected to the trial court instructing the jury in that manner. Trial counsel argued that Maduro's conduct did not qualify as clear evidence of flight, so it would be "unduly prejudicial to instruct the jury that they can consider what the defendant did in this case as flight."
The prosecutor responded, "I think there's certainly evidence in this case that the defendant, immediately after the crime, fled the scene and hid the knife and then was trying to walk away." The trial court decided to read the jury CALCRIM No. 372, for considering evidence about the defendant's flight, as follows:
"If the defendant fled immediately after the crime, . . . that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance
of that conduct. However, evidence that the defendant fled cannot prove guilt by itself."
C. Analysis; Harmless Error, If Any
According to Maduro, the giving of the flight instruction was error because the evidence showed he remained in the area, walking around, while the responding police officers were investigating the fight. He argues the evidence was equivocal on whether he was trying to leave the vicinity, and that one officer admitted to not being sure whether Maduro was fleeing. Instead, he was identified by a bystander as someone who had been in the fight, and who was now walking more or less toward the scene.
Maduro's arguments that he remained in the area at the relevant times disregard other evidence, that the responding sergeant saw him fighting in the middle of the street and then disappearing for a while, until he was rediscovered across the street with blood on his sweatshirt. The record is essentially undisputed that he had a knife during the confrontation but did not have it with him when intercepted. The knife was not found in the area afterwards. Factual issues were presented on why Maduro took the actions that he did, both leaving the scene of the fight and returning to give a recorded statement, and whether they were related to consciousness of guilt about his role in the incident or the incriminating nature of the knife.
In following the conditional structure of this instruction, the jury had to make several related determinations before drawing an inference of consciousness of guilt. The jury had to decide whether Maduro's actions showed an intent to evade detection, and whether an inference about consciousness of guilt should be drawn. It was told that corroborating evidence was also necessary. For evaluating whether flight occurred, what weight to give the evidence, and whether there were alternative explanations for Maduro's behavior, this instruction gave the jury appropriate guidance. (Lucas, supra, 12 Cal.4th at p. 471; People v. Bradford (1997) 14 Cal.4th 1005, 1055.) "The jury could attribute an innocent explanation to his conduct, but it could also infer that his departure and the circumstances thereof were consistent with and supported the prosecution's theory." (People v. Bonilla (2007) 41 Cal.4th 313, 329.)
Instructing the jury on flight, even if erroneous, may be "clearly harmless" because "the instruction [does] not assume that flight was established, leaving the factual determination and its significance to the jury." (People v. Visciotti (1992) 2 Cal.4th 1, 61.) The very terms of the instruction informed the jury that it first had to decide whether it believed that the defendant actually fled. Only if the jury were to make that preliminary finding would it proceed to decide the significance of that conduct.
In addition to giving the flight instruction, the trial court explained to the jury: "Some of these instructions may not apply depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are in this case, follow the instructions that do apply to the facts as you find them." Even assuming that the evidence was evenly balanced about whether Maduro left the scene with an intent to avoid being identified as the perpetrator or as the possessor of the knife, we would still not find that the trial court prejudicially erred in instructing the jury on flight, because of the cautionary safeguards built into the instruction. Reversal is not warranted without some additional showing, not present here, on how the jury might have misapplied the instruction to find him guilty. (Crandell, supra, 46 Cal. 3d at p. 870.)
D. Cumulative Effect Of Error, If Any
Maduro argues for reversal based on multiple arguable errors. "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) Under some circumstances, several errors that are each harmless on their own should be viewed as prejudicial when considered together. (Hill, supra, 17 Cal.4th 800, 844.) But here, no serious errors occurred that, viewed individually or in combination, could possibly have affected the jury's verdict. (People v. Martinez (2003) 31 Cal.4th 673, 704.) We reject this claim of cumulative prejudicial error and affirm.
DISPOSITION
The judgment of conviction is affirmed.
HUFFMAN, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.