Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF113690A Michael G. Bush, Judge.
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Brian Alvarez, and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, J.
Defendant Jimmy Lee Robinson stabbed his wife’s ex-boyfriend to death and was convicted of first degree murder. His defense at trial was that he was defending himself and his wife or was provoked. On appeal, he argues that (1) the court instructed the jury erroneously on the circumstances under which provocation can reduce the degree of murder from first to second; (2) the court erred in failing to instruct the jury on involuntary manslaughter on its own motion; and (3) the court erred in excluding evidence that the victim had been convicted of making a criminal threat. We affirm.
FACTUAL AND PROCEDURAL HISTORIES
Responding to a bystander’s 911 call, police and emergency medical personnel came to Valley Plaza, a mall in Bakersfield, on the afternoon of February 18, 2006. They found Kenneth Dewayne Moses lying on his back in the parking lot. His clothes were bloody and he had several stab wounds. When a police officer asked what happened, Moses said, “‘Jimmy did it.’”
Moses was taken to a hospital. An emergency room physician observed the stab wounds, including one in the left side of Moses’s chest over the location of his heart. The doctor performed emergency surgery to try to treat Moses’s internal injuries and in the process saw that this wound pierced the heart. Moses died 20 minutes after emergency treatment began. An autopsy found that, in addition to the chest wound that pierced the heart, Moses had stab wounds in five other locations. First, a wound to the left side of the neck was two and a half centimeters long and penetrated four and a quarter inches into the neck. Second, a wound on the front of the right shoulder consisted of two separate V-shaped cuts. One cut was one centimeter long, the other was one and a half centimeters long, and both were two and a half inches deep. The third wound was on the top of the right shoulder, 1.3 centimeters long and three quarters of an inch deep. The fourth wound was in the center of Moses’s back and consisted of two separate V-shaped cuts. One was 1.6 centimeters long, the other was 2.4 centimeters long, and both were one and three quarters inches deep. The fifth wound was also in Moses’s back and also consisted of two separate V-shaped cuts. One was one and a half centimeters long, the other was 2.1 centimeters long, and both were one and three quarters inches deep. The chest wound that pierced the heart was three and a quarter inches deep. Counting the two-part wounds as two cuts, Moses was cut a total of nine times. The stab wounds were the cause of death.
The district attorney filed an information charging defendant with willful, deliberate, and premeditated murder. (Pen. Code, § 187.) The information also alleged that defendant used a knife to commit the offense (§ 12022, subd. (b)) and had served a prior prison term (§ 667.5, subd. (b)). Defendant’s wife, Jennifer Robinson, was named as a co defendant and charged with harboring or concealing a felon. (§ 32.)
Subsequent statutory references are to the Penal Code.
At trial, the parties presented background facts about the relationship between Jennifer Robinson and Moses. They were involved in a romantic relationship from 1998 to 2000, living together part of the time. Jennifer testified that the relationship “was off and on” and that “there was a lot of cheating … on his part.” She described him as demanding, possessive, and intimidating. She believed he had physically abused a former girlfriend. She ended the relationship and demanded that he move out of their apartment after an incident in which he shoved her against an air conditioner and broke it.
After this, according to Jennifer, Moses made unwelcome contacts with her on many occasions. He frequently appeared at her home. Sometimes he banged on the doors and windows, attempting to convince Jennifer to let him in. On one of these occasions, she opened the door and he forcibly tried to kiss her. Other times he simply drove by. He also appeared, uninvited, at her workplace and left unwanted telephone messages for her at that location. Jennifer married defendant in 2001, but Moses’s attempts to contact her continued after this time. They intensified during a period in 2004 and 2005 when Jennifer and defendant were separated.
As Jennifer described it, an attempt to confront Moses about these unwanted contacts resulted in the meeting that ended in Moses’s death. Defendant asked Jennifer to get Moses’s cell phone number so he could “talk to him just to clear things up.” A mutual friend gave it to her, but she never used it. Later, on the day of the stabbing, the friend called Jennifer with a message from Moses: “[H]e’s not mad at you and he’s at Que Pasa Restaurant” at Valley Plaza. Jennifer decided to go to the restaurant to tell Moses to leave her alone. Defendant wanted her not to go. In the end, they both went, driving separate cars.
Jennifer arrived at the mall and saw Moses leave the restaurant, walk into the parking lot, and open the passenger door of a car. She approached and yelled at him to stay away from her and not contact her. Moses asked why she had asked their mutual friend for his phone number. About this time, defendant arrived, got out of his car, and approached. According to Jennifer, Moses then reached in his coat and defendant stepped between them. Jennifer recalled that when she lived with Moses, he possessed a handgun. She had told defendant about this fact.
Several witnesses saw the ensuing fight. Jennifer testified that she saw Moses pull defendant’s sweatshirt off over his head and saw defendant on the ground at one point. She said that, as defendant was getting in the car to leave after the fight, Moses was running after him.
Arlene Freeborn, driving in the parking lot, saw defendant appearing very angry and advancing on Moses “[w]ithout breaking stride, without missing a beat” until he “jumped” Moses. Then she saw them wrestling on the ground. She was certain it was defendant who attacked Moses, not the other way around. Freeborn described them as the “slim” man and the “husky” one and could not otherwise identify them, but there does not appear to be any dispute that the man she said she saw advancing was defendant and the other man was Moses. Moses was six feet two and a half inches tall and weighed 213 pounds; defendant was 5 feet 10 inches tall and weighed 205 pounds.
Mark Washington, though claiming total ignorance of the incident at trial, gave two detectives an extensive account of what he saw. As he was driving through the parking lot, he saw Moses leave the mall and walk to a car. He saw Jennifer walk up and argue with Moses. Then he saw defendant and Moses fighting; defendant was holding Moses in a headlock and forced Moses to the ground. Defendant released Moses and stood up. Moses also got up, with blood coming from his neck. He staggered toward defendant. Defendant staggered backward and took a fighting stance. Jennifer, who was in a car now, said “Let’s go.” Defendant got in and they drove away. Moses staggered toward the car and fell to the ground.
J., a minor, was at the mall with his family. He was entering the parking lot when he saw the conflict between defendant and Moses. J. testified that he saw defendant approach Moses using bad language. Moses kept walking. Then J. saw defendant slam Moses onto the ground and saw the two of them wrestling. He also saw Jennifer grab defendant and say, “Come on baby, let’s go,” before the two of them fled the parking lot. J. did not see them get in a car. As they fled, Moses got up and slowly attempted to chase them. By that time, Moses was bloody.
R., also a minor, came to the mall on a bus and saw defendant and Moses fighting as he crossed the parking lot toward the mall entrance. One of the two fighting men said, “‘Get this man off me before I kill him.’” R. did not know which man said it. He saw Moses grab defendant’s shirt and hold it. He also saw defendant strike Moses on the left side of the neck and he saw Moses bleeding. Defendant got in a car that was waiting nearby and was driven away. Moses collapsed on the ground.
Karen Berry testified that, while driving in the parking lot of the mall, she saw Jennifer reaching for her shoes underneath a car, while defendant and Moses were wrestling on the ground. The two men got up and defendant walked toward the car; Moses followed behind defendant, chasing him. Jennifer raised one of her shoes as if to hit Moses with it. Moses walked away from the car, swaying; he fell face down on the ground and then rolled over on his back. His shirt was bloody.
Danielle Garcia also saw defendant and Moses wrestling on the ground. She was the only witness who said she saw the larger man, Moses, hold the smaller, defendant, in a headlock and punch him.
Lisa Alameda testified that she saw defendant and Jennifer leaving the mall parking lot in their car. The car “was kind of jerking along like they were having trouble getting it to go,” but “once they got it going, they went rather quickly.” Jennifer was driving and “was very upset, she was crying, kind of hollering, shaking.” She and Alameda approached a stop sign from opposite directions; Jennifer was about to drive through the intersection without stopping but was forced to stop when Alameda turned left. Alameda saw defendant, the passenger, throw something out the window. She could not see the item. None of the witnesses saw the knife, and it was never recovered.
Several witnesses testified about defendant and Jennifer’s two-day flight after the stabbing. They went first to the home of Dee Pradt, a former girlfriend of defendant. Pradt testified that defendant said he had been in a fight; a man had come at him or Jennifer, so he “stepped in.” Defendant had a small injury on his hand. He changed clothes and left the clothes he had been wearing, which had blood on them, at Pradt’s apartment. She threw them in a dumpster.
Next, Jennifer went to see Cheryl Worthy, who was defendant’s cousin. Jennifer told Worthy she and defendant were in trouble, and Worthy agreed to rent a motel room for them in her name. Defendant came to Worthy’s apartment later and asked for money, but she said she had none.
The next day, defendant went back to Pradt’s apartment and asked her to rent another motel room for him and Jennifer in her name. Pradt agreed.
Defendant’s daughter Sarah and Jennifer’s daughter Sabrina were living with defendant and Jennifer on the day of the stabbing, as was Jennifer and defendant’s two-year-old son Koby. In the evening of the day of the stabbing, neighbors picked up the three children at their house and brought them to the motel where defendant and Jennifer were staying. Sarah testified that defendant said “there was an accident at the mall because [Moses] was trying to come at Jennifer. And he tried to stop her with a knife, and my dad just took it from him.” He also told Sarah, “‘I killed [Moses] because he was messing with Mom.’” Sarah admitted that when she spoke to the police, she did not mention that defendant said Moses was attacking Jennifer with a knife. Sabrina testified that defendant told her Moses had gotten hurt and died at the hospital and that they would have “to take it day by day to see what happens.” On cross-examination by defense counsel, Sabrina added that defendant said Moses pulled a knife and defendant took it from him.
In his closing argument, the prosecutor contended that the crime was first degree murder because defendant “premeditated, deliberated this murder on the 10-minute drive towards Valley Plaza.” Defense counsel argued that defendant should be acquitted because he was defending himself and Jennifer or should be convicted of a lesser offense because he was reacting to provocation or a sudden quarrel.
While the jury was deliberating, defendant admitted the prior prison term. The jury found defendant guilty of first degree murder and found the knife-use allegation true. The court sentenced him to 25 years to life in prison plus one year for using a knife and one year for the prior prison term.
DISCUSSION
I. Instruction on provocation reducing degree of murder
Defendant contends that the court gave the jury an erroneously incomplete or misleading instruction on the effect of provocation in reducing the degree of murder from first to second. Defendant did not object to the instructions at trial, but a trial court in a criminal case is required—with or without a request—to give correct jury instructions on the general principles of law relevant to issues raised by the evidence. (People v. Michaels (2002) 28 Cal.4th 486, 529-530.) Further, an appellate court can address an incorrect instruction to which no objection was made at trial if the instruction impaired the defendant’s substantial rights. (§ 1259.) We review de novo the court’s instructions on provocation. (People v. Cole (2004) 33 Cal.4th 1158, 1217.)
Defendant’s argument focuses on a difference between the CALCRIM instructions the court gave and the comparable instructions in CALJIC. The court gave the jury the following instruction in accordance with CALCRIM No. 522:
“Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter.
“The weight and significance—the weight and significance of the provocation, if any, are for you to decide.
“If you conclude the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also consider the provocation in deciding whether the defendant committed murder or manslaughter.”
Immediately after this, the court read CALCRIM No. 570, stating:
“A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion.
“The defendant killed someone because of a sudden quarrel or in the heat of passion if, one, the defendant was provoked; two, as a result of the provocation the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; and, three, the provocation would have caused a person of average disposition to act rashly and without due deliberation, that is from passion rather than from judgment. [¶] … [¶]
“It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct.
“You must decide whether the defendant was provoked and whether the provocation was sufficient.
“In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.
“If enough time passed between the provocation and the killing for a person of average disposition to ‘cool off’ and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis.”
Although these instructions set forth a standard for provocation sufficient to reduce murder to manslaughter (it must be provocation that “would have caused a person of average disposition to act rashly and without due deliberation”), they did not set forth another, less demanding standard for provocation sufficient to reduce murder from first degree to second. CALJIC No. 8.73, by contrast, does state that provocation sufficient to reduce the degree of murder can be provocation “not sufficient to reduce the homicide to manslaughter .…” Defendant’s theory here is that the lack of a statement like this might have confused the jury and led it to believe the standard applicable to the murder-versus-manslaughter inquiry also applied to the reduction-of-degree inquiry.
There was no error. The instructions given stated the law correctly. In the reduction-of-degree context, the instructions told the jury that “the weight and significance of the provocation, if any, are for you to decide.” They did not state that the provocation is sufficient to reduce the degree of murder only if it was enough to cause an average person to act rashly. The misunderstanding defendant contends the jury might have fallen into would have been just that—a misunderstanding of the instructions. We generally presume that juries understand and follow the court’s instructions (People v. Yeoman (2003) 31 Cal.4th 93, 139), and there is no reason here to conclude that the jurors might incorrectly have interpreted these instructions as suggested by defendant.
We do not doubt that an instruction like the one in CALJIC No. 8.73 would also have been correct. This instruction would, however, have been a pinpoint instruction, i.e., one that relates particular facts to a legal issue in the case. A pinpoint instruction need be given only on request; a failure to give it absent objection or request is not a ground for reversal. (People v. Saille (1991) 54 Cal.3d 1103, 1120; 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 610, pp. 869-870.) In fact, our Supreme Court has held that any instruction pursuant to CALJIC No. 8.73 relating provocation to the degree of murder is a pinpoint instruction and that a failure to give it sua sponte is not error. (People v. Rogers (2006) 39 Cal.4th 826, 878.) It follows that an instruction specifying the amount of provocation needed to reduce the degree of murder need not be given sua sponte. We acknowledge that reversible error can arise if the giving of only a part of a non required instruction renders the charge erroneous (People v. Saille, supra, 54 Cal.3d at p. 1119), but we do not believe that is true here.
When asked for any objections to the instructions given, defendant’s trial counsel said he had none, “with the exception … that I announced earlier some of the CALJIC I prefer.” This general statement of a preference for unspecified CALJIC instructions does not amount to an objection to the provocation instructions given or to a request for an instruction containing the point at issue. Moments later, defense counsel said, “I didn’t object to any [of the instructions given]. If we’re going to give CALCRIMS, [those given] appear to be appropriate instructions.”
For these reasons, we also reject defendant’s claim that the instructions violated his constitutional rights to due process and a jury trial. Since the instructions given were correct and the court had no duty to give an additional pinpoint instruction sua sponte, there is no basis for the claim of a constitutional violation.
Finally, contrary to defendant’s contention, he has made no showing that his trial counsel’s omission of an objection or request on this point constituted ineffective assistance. He has not shown a reasonable probability that the jury would have found second degree murder if an instruction like CALJIC No. 8.73 had been given. (Strickland v. Washington (1984) 466 U.S. 668, 692, 694, 697.)
II. Omission of involuntary manslaughter instruction
While the jury was deliberating, the court asked counsel to put on the record a discussion about the jury instructions that had taken place off the record earlier. One of the points discussed was that defendant did not request, and the court did not give, a jury instruction on involuntary manslaughter:
“THE COURT: Was there any jury instruction that you think I should have given that I didn’t give? … [¶] … [¶]
“MR. KATHKA [defense counsel]: No, your Honor.
“THE COURT: We did discuss as far as lesser included that although the court gave the voluntary manslaughter, there simply was no evidence to suggest that the defendant would have been guilty of involuntary manslaughter. [¶] You agree with that, Mr. Kathka?
“MR. KATHKA: I submit I had no argument that it would fall within involuntary manslaughter, your Honor.”
Defendant now argues that the court was required to give an involuntary manslaughter instruction on its own motion. His theory is that the jury reasonably could have found that he had no intent to kill and no conscious disregard for life and that the facts confronting him warranted action to defend Jennifer or himself, but that the quantity of force he used to do this was excessive. A killing under those circumstances would constitute involuntary manslaughter. (See People v. Welch (1982) 137 Cal.App.3d 834, 840, overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 91.) We review de novo the court’s instructions on lesser-included offenses. (People v. Cook (2006) 39 Cal.4th 566, 596.)
Involuntary manslaughter generally is a lesser offense necessarily included within the offense of murder. (People v. Prettyman (1996) 14 Cal.4th 248, 274.) A trial court must instruct the jury on a lesser-included offense on its own motion when the evidence warrants it; the instruction is not required if there is no evidence that the offense was less than that charged. (Ibid.; People v. Gutierrez (2002) 28 Cal.4th 1083, 1145.) An erroneous failure to give a lesser-included-offense instruction results in reversal of a conviction only if the error is prejudicial. (People v. Blakeley, supra, 23 Cal.4th at p. 93.) Although defendant contends that the omission of the instruction violated his federal constitutional rights, the California Supreme Court has held “that the failure to instruct sua sponte on a lesser included offense in a non capital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility.… [S]uch misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.” (People v. Breverman (1998) 19 Cal.4th 142, 165; see also People v. Blakeley, supra, 23 Cal.4th at p. 93.) In other words, the harmless-error-review standard of People v. Watson (1956) 46 Cal.2d 818, 836, applies.
Defendant urges us not to follow Breverman and to apply the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18 instead. Declining to follow controlling California Supreme Court authority is not among our options, however. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In this case, we need not decide whether the evidence warranted an involuntary manslaughter instruction. Assuming for the sake of argument that the instruction was appropriate, we conclude that the omission of it was harmless.
As discussed in the previous section of this opinion, the court instructed the jury on two lesser offenses included in first degree murder: second degree murder and voluntary manslaughter. The jury could have convicted defendant of second degree murder by finding that he was sufficiently provoked. It could have convicted him of voluntary manslaughter by finding that he had an intent to kill or a conscious disregard for life but either acted in imperfect self-defense or imperfect defense of another, or that he acted in the heat of passion in response to a sudden quarrel or provocation sufficient to cause a reasonable person to act rashly. The jury rejected all these options and found that defendant intentionally killed Moses and did so willfully, deliberately, and premeditatedly.
The only difference between the instruction the court gave on voluntary manslaughter based on imperfect self-defense or imperfect defense of another (i.e., CALCRIM No. 571), and any similar involuntary manslaughter instruction it could have given, would have been that the voluntary manslaughter instruction included a requirement of an intent to kill or a conscious disregard for life, while the involuntary manslaughter instruction would instead have required only criminal negligence or an act posing a high risk of great bodily injury or death (see CALCRIM No. 580). Given the first degree murder verdict, there is no likelihood that if the jury had received the instruction on involuntary manslaughter, it would have found that there was no willfulness, deliberation, or premeditation after all, no intent to kill, nor even any conscious disregard for life, but instead only a justified decision to use force accompanied by a criminally negligent failure to confine the force used to a reasonable amount. Our Supreme Court has determined that similar failures to give an involuntary manslaughter instruction were harmless on several occasions. (People v. Gutierrez, supra, 28 Cal.4th at p. 1145 [failure to give involuntary manslaughter instruction not reversibly erroneous where jury rejected voluntary manslaughter and found first degree murder]; People v. Prettyman, supra, 14 Cal.4th at p. 274 [error, if any, in failing to instruct on involuntary manslaughter harmless where jury rejected second degree murder and found first degree murder]; People v. Sedeno (1974) 10 Cal.3d 703, 721 [failure to give involuntary manslaughter instruction not prejudicial where jury rejected second degree murder and found first degree murder], overruled on other grounds by People v. Breverman, supra, 19 Cal.4th 142.)
III. Exclusion of evidence of victim’s prior conviction
In 2001, Moses pleaded no contest to one misdemeanor count of violating section 422, which prohibits “willfully threaten[ing] to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement … is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety .…” During trial, defense counsel sought to introduce into evidence a superior court document showing this conviction. He argued that it was admissible under Evidence Code section 1103, subdivision (a), to prove that the victim had a violent character, which in turn supported his claim that the victim was the aggressor. He also argued that the conviction corroborated Jennifer’s testimony that Moses was sometimes threatening and intimidating. Defense counsel did not know the factual basis of the conviction; he had searched unsuccessfully for the victim. There was no evidence that defendant or Jennifer knew of the conviction or the facts on which it was based.
The court excluded the evidence. “The conviction, itself, really is of no value because it’s not really put in context,” it stated. Defendant now argues that this ruling was erroneous and denied him his constitutional right to put on a defense.
Defendant asserts that the ruling apparently was based on People v. Wheeler (1992) 4 Cal.4th 284, 297, 300, in which the Supreme Court held that a court record of a misdemeanor conviction is inadmissible hearsay if offered for impeachment, and that a prior misdemeanor must be proved by evidence of the underlying conduct. (See also People v. Chatman (2006) 38 Cal.4th 344, 373 [applying Wheeler].) He urges us to accept the view of the Court of Appeal in People v. Duran (2002) 97 Cal.App.4th 1448, 1460, that the Legislature enacted Evidence Code section 452.5 in reaction to Wheeler to render records of misdemeanor convictions admissible. (See also People v. Wesson (2006) 138 Cal.App.4th 959, 968 [citing Duran].)
We need not decide whether the record of the conviction was inadmissible under Wheeler. We disagree with defendant’s view that the court excluded the evidence pursuant to the Wheeler holding. The court’s statement was that, without any information about the factual basis of the plea, the evidence of the conviction lacked value “because it’s not really put in context.” The court also said the evidence “really doesn’t tell the jury anything but he simply had been convicted of a PC 422 as a misdemeanor five years ago. Doesn’t add anything. [¶] In fact, it would leave a lot to them, a lot of room for speculation on behalf of the jury.” These statements did not assert that the evidence is inadmissible hearsay.
We agree with the People’s view that the ruling was, instead, a decision pursuant to Evidence Code section 352 that the probative value of the evidence was substantially outweighed by the probability that it would confuse the issues or mislead the jury. Assuming for the sake of argument that the evidence was not inadmissible hearsay and was admissible under Evidence Code section 1103, we affirm that decision.
Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” We review rulings under Evidence Code section 352 for abuse of discretion. (People v. Minifie (1996) 13 Cal.4th 1055, 1070.)
Evidence that Moses was convicted of making a criminal threat did have some tendency to show that he lacked a peaceful character and therefore provided some support, consistent with the character-evidence exception in Evidence Code section 1103, for defendant’s claim that Moses was the aggressor. We disagree, therefore, with the trial court’s view that the evidence had no probative value. This value was small, however. The jury had no way of knowing what relevant similarities and dissimilarities there might have been between the situation of the present case and that of the prior offense. This meant that the conviction had limited value for judging the likelihood that Moses was acting in the present case in conformity with the character he exhibited in the prior case. Further, there was other, more directly relevant evidence in support of defendant’s claim that Moses was the aggressor: Jennifer’s claim that Moses was intimidating and had shoved her and abused a former girlfriend; her assertion that Moses reached for something in his coat before he and defendant fought; the testimony of Candyce Apple, Moses’s fiancée, that Moses had two or three pocket knives and typically carried one for use in his work; her statement to police, later retracted, that one of the knives was not at their house after the stabbing and that she was expecting to get it back from Moses’s employer; Apple’s ambiguous testimony when asked if Moses was a violent man; Sabrina and Sarah’s testimony that defendant told them Moses pulled a knife; and Danielle Garcia’s testimony that she saw the larger man holding the smaller man in a headlock and punching him. Only some of the evidence supporting defendant’s version came from interested witnesses on defendant’s side, so it cannot be said that Moses’s prior conviction was the only independent corroboration of that version. In light of this context, we conclude that the probative value of Moses’s prior conviction was small and that the court did not exceed the bounds of reason in finding its value to be substantially outweighed by the potential for confusing the issues or misleading the jury.
“Q. Ms. Apple, did you ever know [Moses] to be a violent man?
For the same reasons, we reject defendant’s contention that the exclusion of the victim’s conviction unconstitutionally denied him the right to present a defense. In light of the other evidence presented, the proper exclusion of this marginally significant evidence pursuant to Evidence Code section 352 did not deprive defendant of “‘a meaningful opportunity to present a complete defense.’” (Crane v. Kentucky (1986) 476 U.S. 683, 690.)
Even if it were error to exclude the evidence, we conclude the error is harmless under any standard. Although the evidence supporting defendant’s claim that Moses was the aggressor was significant—enough to render unimportant the contribution of Moses’s prior conviction, as we have said—the evidence undermining that claim was far more powerful. Three witnesses saw defendant holding Moses in a headlock or striking him. No one ever saw Moses with a knife, but defendant surely had one, for it is beyond dispute that defendant stabbed Moses in the heart, the neck, and four other places. There is no likelihood that if the evidence of Moses’s prior conviction had been admitted, the jury would have found defendant not guilty or guilty of a lesser offense.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Harris, Acting P.J., Kane, J.
“A. No, not like—you had to provoke him. He didn’t—he wasn’t—he wasn’t an angry person; so he didn’t just go out to start anything like—hard to explain.
“Q. I’m just asking from your personal experience.
“A. No.”