Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVA900580, Ingrid Adamson Uhler, Judge.
Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER J.
A jury convicted defendant Marina Cerise Sanchez of first degree burglary (count 1-Pen. Code § 459); attempted voluntary manslaughter, a lesser included offense of the charged count of attempted murder (count 2-§§ 664, 192, subd. (a)); attempted first degree residential robbery (count 3-§§ 664, 211), and another count of first degree burglary (count 4-§ 459). The jury additionally found true allegations attached to counts 2 through 4 that defendant had personally used a deadly weapon (§ 12022, subd. (b)(1)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). Finally, the jury found true allegations that defendant had committed both burglaries while another individual was present. On appeal, defendant contends that her federal Sixth Amendment right to confrontation, via the Fourteenth Amendment, was violated by the prosecution’s failure to produce the victim of counts 2 through 4 at trial. In addition, defendant maintains the trial court committed reversible error in refusing to give certain bracketed instructions she requested in the standard jury instruction on self-defense, CALCRIM No. 3470. Finding no error, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. COUNT 1
On February 6, 2009, Priscilla Velasquez lived as a tenant in defendant’s father’s home. Sometime between 7:00 and 8:00 p.m. she was watching television in her bedroom; she heard a female voice inside the residence asking “‘Dad, are you home? It’s me. Are you here? Dad, it’s me.” Velasquez never came out of her room to see who it was. Martin Sanchez, defendant’s father, testified that when he arrived home that evening he saw defendant standing by the gate leading to the backyard of his home. Defendant told him she needed to use the restroom; he allowed her to do so, but waited outside. She came out of the home and left.
Sanchez entered his home and later noticed two cell phones and a digital camera were missing; a window in the residence had been left open. Velasquez informed him that she had heard someone inside the house. Sanchez called the police. Deputy Sheriff Josh Guerry responded and took a report. An hour later Sanchez called the police again; he had noticed additional items that had been stolen and encountered a number of items taken from inside the home, which had been discarded on the ground by a tree in his backyard. Deputy Guerry returned to the home; the additional missing items included a Louis Vuitton purse and several pieces of jewelry. The items found in the backyard included makeup and a charging dock for the digital camera. On February 11, 2009, Sanchez called the police again when he saw defendant at a store in Fontana. Deputy Sheriff Dominic Moreno responded. Deputy Moreno found a digital camera in the trunk of defendant’s vehicle; Sanchez identified it as the one, which had been taken from his residence. Defendant was arrested thereafter. Moreno returned Sanchez’s digital camera the next day.
Defendant testified in her defense. She admitted stealing her father’s camera from his home after he permitted her into the residence to use the restroom. She denied being in the home prior to her father’s arrival. She also denied taking any jewelry, makeup, or cell phones from her father’s home.
B. COUNTS 2 THROUGH 4
On April 1, 2009, Efren Aceves (Efren) was sleeping on the couch in a trailer next to the mechanic shop where he worked. He was awakened by an argument between the victim (Efren’s cousin) and defendant. Defendant asked for money several times; she said “‘I need money. I have to have money.’” She appeared upset, angry, and desperate. The victim refused her requests; he told her to get out of the trailer. Defendant refused to leave. When the victim attempted to force her to leave the trailer, defendant suddenly swung a knife at the victim.
Fontana Police Officer Daniel Delgado testified the location was a truck yard, which consisted of a diesel truck repair shop, three mechanic bays, an office, and a trailer.
Defendant ran out of the trailer; Efren ran after her. Defendant got into a car; the car drove off at a high rate of speed, nearly colliding with a truck. Julio Aceves (Julio) who was also living on the property, testified that he heard a tire screeching; his brother called him thereafter; two to three minutes later he saw the injured victim. Efren returned to the victim; the victim “was holding his neck because he had a big cut.” The victim had incurred a four-inch cut to his neck. “A lot of blood was coming out.” Efren gave the victim a towel to soak up the blood. The victim went to the hospital; he was unable to speak; “[h]e was white, swollen and sleepy.” Tubes were placed into the victim’s throat to aid his breathing. The victim identified defendant as the culprit from a six-pack photographic lineup presented to him in the hospital.
Defendant testified she had initially met the victim on New Year’s Eve. The night before the instant incident, the victim had picked her up and brought her to the property. She spent time that night in both the trailer and the adjacent mechanic’s shop. Someone raped her in the mechanic’s shop that night; it was not the victim. She never reported the rape.
Defendant testified that on the night of the incident, she called the victim to ask if she could come over and pick up her wallet, which she had left in the trailer on the previous night. The victim told her that her wallet was there. Defendant had her friend Steve Palacio drive her over to the site; she walked into the trailer. She asked the victim where her bag was; the victim pointed and said “It’s right there”; defendant did not see it. The victim came up behind her and asked her if she wanted to “kick it.” She replied that she had just come over for her wallet. The victim grabbed her and told her to just “kick it.” Defendant yelled for Palacio; she began to leave. Efren grabbed her arm and told her to “kick it.” He started “pushing up on [her] butt” and “rubbing up[] on [her]” from behind. The victim also grabbed her arm and would not let go. Defendant attempted to pull away, but the victim grabbed her tighter. Defendant grabbed a small pocket knife that was clipped onto her pants, and swung it. The victim let go of her; she took off running. She ran to Palacio’s car; he drove off quickly. Defendant denied asking or demanding money from the victim; she denied stabbing the victim as revenge for what had occurred to her the night before.
There was some discrepancy in defendant’s various recounts regarding whether she left her purse or her wallet in the trailer.
Officer Delgado testified that he conducted an interview of defendant on April 7, 2009. The prosecution played a video and audio recording of the interrogation to the jury. Officer Delgado testified that during the interview, defendant was erratic; her relation of details “was sporadic. She jumped back and forth, jumped into a whole different story, came back. . . . [I]t was actually one of the most difficult interviews I’ve had.” Defendant admitted being on marijuana and coming down off methamphetamine during the interview.
Defendant reported being at the truck yard on New Year’s Eve and on the night prior to the incident at issue in this case, i.e., March 31, 2009. As to the latter evening, she reported getting into an argument with Palacio; she took off walking. Someone picked her up and brought her to the truck yard. She hung out with a number of people including several females; they were using methamphetamine. Two men inside the trailer grabbed her; one of them raped her. Defendant never positively identified the rapist by name, describing him vaguely as a “fat Hispanic male.” She then ran a mile from the truck yard. Someone eventually picked her up and brought her to a gas station where she purchased a cup of coffee. She never called the police to report the rape.
Julio testified he saw defendant walking around inside the truck yard around 1:30 a.m.; she was behaving strangely and nervously. She asked him for a ride; he refused. Julio testified he had never seen defendant prior to that night; he was not at the New Year’s Eve party. Efren testified he did not see defendant that night; he had not seen her between New Year’s Eve and April 1, 2009, when she stabbed the victim. He testified he did not party in the mechanic’s shop on March 31, 2009, and that there was no party in the trailer that night. Paul Ramos, a mechanic at the shop in the truck yard, testified he saw defendant in the street adjacent to the truck yard around 2:15 a.m. on March 31, 2009. “[S]he wasn’t right physically or mentally because she looked kind of strange.” Defendant asked him if she could use his phone; he let her. Ramos then left; defendant remained at the truck yard. He testified he had never seen defendant before.
Defendant reported that she called the victim the next evening about an hour before she went to the trailer in order to garner permission to come over; the victim told her to come over. She wished to return to the trailer to recover the purse she had left there the previous evening. Palacio gave her a ride to the truck yard, but remained in the vehicle. Defendant walked into the trailer through an open door; she told the two men inside that she wanted her belongings. The two men grabbed her and pushed on her, wrestling with her. Defendant ran to Palacio’s vehicle; Palacio took off quickly. Palacio told her that he saw one of them chasing her holding a big gun, a rifle or a shotgun. Defendant repeatedly denied having a knife; she denied stabbing the victim. Defendant reported being in the trailer for less than five minutes.
No weapons or any possessions of defendant were located inside the trailer.
Felix Salinas, a truck driver who had arrived at the truck yard that night between 9:00 p.m. and 11:00 p.m., testified he was preparing his truck for departure. He witnessed a white, four-door sedan with two occupants attempt to enter the truck yard; he had to move his truck to enable them sufficient space to pull in. The vehicle pulled in and parked behind Salinas’s personal car. Defendant exited the vehicle from the passenger side and entered the trailer directly through the door; he did not see her knock. The driver remained inside the vehicle with the engine on. Between two and five minutes later, defendant ran from the trailer and got into the car. One person was chasing defendant. Once she got in the car, it took off quickly; it almost hit another truck attempting to enter the yard. Another man then exited the trailer; he “was bleeding from the neck.” Fontana Police Officer Summer Ing testified Salinas told him defendant was in the trailer for less than two minutes.
DISCUSSION
A. CONFRONTATION
Defendant contends the People committed prejudicial, reversible error pursuant to the federal Sixth Amendment (Confrontation Clause), via the Fourteenth Amendment, in failing to produce the victim of counts 2 through 4 at trial for defendant’s examination. She likewise contends she was therefore unconstitutionally compelled to testify in violation of the federal Fifth Amendment, via the Fourteenth Amendment. Finally, she contends she was deprived of her state and federal constitutional rights to due process by the failure of the People to produce the victim at trial. We find defendant’s contentions unavailing.
Prior to trial and apparently after an off-the-record discussion of the People’s inability to obtain the presence of the victim at trial, defendant evidently moved to dismiss counts 2 through 4 due to the victim’s absence: “[I]t would put [defendant] in a position where she would have to testify, violating her privilege to remain silent.” The trial court noted that it was “satisfied that deportation had nothing to do with the victim’s absence and the only reason he’s absent from court is the... involuntary commitment to a residential treatment program, then the deportation cases will not apply as far as I’m concerned.” As to defendant’s contention that the victim’s absence would compel her testimony, the court observed “in a self-defense case, normally the defendant testifies, no matter what, to get that defense in front of the jurors. It’s very difficult to do so otherwise. So [defendant] probably would always be in the same situation, the same solution, that she’s going to have to testify to the defense being self-defense.”
Only after the filing of the People’s supplemental opposition to defendant’s prior motion to dismiss the case on other grounds does the record provide a more complete picture concerning the circumstances of the victim’s prospective absence from trial. The People reported that “[t]he victim... who has remained cooperative with the People since the date of the incident, was deported to Mexico sometime around July of 2009, approximately three months after the crime in the present case was committed.” “On Wednesday, January 13, 2010, Senior Investigator Alvarez spoke to the victim’s mother, who disclosed that [the victim] is currently being held, involuntarily, in some type of rehabilitation program in Mexico and is not expected to be released until sometime in April.” The People averred they alerted the defense to the situation on January 15, 2010. Investigator Alvarez’s attached declaration indicated that as late as August 13, 2009, she had spoken with the victim (then living in Guadalajara, Mexico) who continued to convey his willingness to testify at trial. Investigator Alvarez had spoken with a United States Customs and Border Protection agent regarding the formalities legally attendant with transporting a previously deported, undocumented alien to testify at trial. That agent informed her that she was required to obtain a letter from the deputy district attorney outlining the necessity of having the witness testify and the details of when, where, and how the victim would be transported to trial. Investigator Alvarez obtained just such a letter. On January 1, 2010, the victim’s mother advised Investigator Alvarez that the victim was being held involuntarily in a mental health facility in Mexico. Investigator Alvarez contacted the victim’s mother at least three times thereafter; the victim’s mother said she was not allowed to have contact with the victim for four months; she was unwilling or unable to provide any information to Investigator Alvarez regarding the location of the victim’s detention. Investigator Alvarez contacted the victim’s cousin in an effort to obtain such information; the victim’s cousin spoke with the victim’s mother, but was unable to obtain any helpful information.
Of the attached documentation, the earliest conveyance of the victim’s potential absence from trial is an e-mail dated January 19, 2010.
Defendant renewed her motion to dismiss predicated on a due process violation arising from the prosecution’s failure to produce the victim at trial. The court denied defendant’s motion. The court reasoned that “regardless of the circumstances, regardless if he’s in a lockdown institution, regardless if he’s working in another city in Mexico, regardless of the circumstances... there’s no state action involved in the fact that the People are unable to bring this witness to Court. [¶] [T]he fact [is] they made every attempt to keep in contact with the victim and making every type of arrangements to have the victim come to court including contact[ing] the U.S. Border Patrol [sic], they, I assume, were going to pay for his expenses to come to the state so that he would have an opportunity to testify.... They’ve done whatever they could to continue contact and open the line of communication between themselves and the victim in the hopes he would come to court and testify. [¶] There’s absolutely no state action in this case.” Indeed, the court noted that the People desired the victim’s presence at trial even more than defendant.
As to defendant’s contention that her testimony would therefore be unconstitutionally compelled, the court noted, “I’ve tried numerous attempt[ed] murders as well as murder cases, whether the person obviously is available to testify or not in terms of the alleged victim, that... normally, not necessarily always, but normally the defendant does testify to establish a claim of right of self-defense.” “[T]he victim’s state of mind is really irrelevant. It’s what’s going to be in [defendant’s] state of mind in terms of why she acted the way she did, whether or not she has an actual claim of self-defense... or whether or not she had an imperfect claim of self-defense; that she honestly, reasonably believed that she had to use self-defense....” The court also observed, “you’ve always given a clear indication to this Court to establish a claim of right of self-defense which normally is required because it’s the defendant’s state of mind that’s important, not in terms of the victim’s state of mind, in terms of whether or not she was acting reasonably under the totality of the circumstances of a claim of right of self-defense. You’ve always made it very clear to this Court and to [the prosecutor] that you were going to call her as a witness, whether the victim was available or not.” “I always thought that during all these conferences we’ve had in chambers, that you made it very clear [defendant] was going to testify.”
Defendant continued to raise the issue throughout trial, with the court repeatedly denying the request. The court effectively disposed of the issue with its rationale: “I made it very clear in terms of the Court’s ruling in the due process claim, I didn’t feel there was any state action involved. And that’s why I made the ruling that I did; that I understand, irrespective of the fact that the victim was deported, subsequent to deportation, [the prosecutor], through a declaration from her investigator, indicated that not only did they have his whereabouts and understanding of his whereabouts and the fact that he was being cooperative and the fact that they got INS [sic] approval for him to return to the United States for the purpose of testifying, that it was only because of the recent involuntary residential treatment program that he now remains unavailable.”
“A criminal defendant has the right, guaranteed by the confrontation clauses of both the federal and state Constitutions, to confront the prosecution’s witnesses. (U.S. Const., 6th Amend.; Cal. Const., art. 1, § 15.) The right of confrontation ‘seeks “to ensure that the defendant is able to conduct a ‘personal examination and cross-examination of the witness, in which [the defendant] has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.’” [Citations.] To deny or significantly diminish this right deprives a defendant of the essential means of testing the credibility of the prosecution’s witnesses, thus calling “into question the ultimate ‘“integrity of the fact-finding process.”’” [Citation.]’ [Citation.]” (People v. Herrera (2010) 49 Cal.4th 613, 620-621.)
Here, however, the victim was not a “witness” against defendant on the issue of defendant’s “self-defense, ” either at the trial itself or in the presentation of some other “testimonial” evidence adduced by the People at trial. Neither was the victim “examined” on the issue of defendant’s defense such that defendant had a right to “cross-examine” him. Thus, the Sixth Amendment Confrontation Clause was not implicated in the present case on the issue of defendant’s theory of self-defense. Indeed, all the cases cited by defendant in support of her argument concerned factual scenarios whereby the People adduced some evidence evinced from a “witness” on a contested issue prior to trial who did not appear at trial and, therefore, was unavailable for cross-examination at trial.
It is axiomatic that any right to “cross-examine” a witness necessarily implies that the witness has already been “examined” in some manner, whether at trial, the preliminary hearing, or, at the very least, an interrogation conducted by government agents. Moreover, the substance of that examination would have to have been admitted at trial prior to any manifestation of a right to confrontation. (See Crawford v. Washington (2004) 541 U.S. 36, 51-52, 68.)
In People v. Mendieta (1986) 185 Cal.App.3d 1032, the People introduced a preliminary hearing transcript of a percipient witness’s testimony regarding the defendant’s robbery of a store after they were unable to obtain the witness’s presence at trial. (Id. at pp. 1036-1039.) The appellate court held that the prosecution had failed to exercise due diligence in compelling the witness’s presence. It therefore reversed the judgment. (Id. at pp. 1039-1040.) In Barber v. Page (1968) 390 U.S. 719, the federal Supreme Court held that a defendant’s right to confrontation had been violated when the prosecution introduced the preliminary hearing transcript of his prior codefendant’s testimony while making no effort to obtain the prior codefendant’s presence at trial. (Id. at p. 723.) In People v. Cromer (2001) 24 Cal.4th 889, the prosecution introduced into evidence the victim’s preliminary hearing testimony at trial, but failed to produce the victim as a witness. (Id. at p. 893.) The Cromer court held that the People failed to exercise reasonable diligence in securing the victim’s attendance at trial; therefore, the defendant’s right to confrontation had been violated and judgment on that particular count was properly reversed. (Id. at pp. 904-905.) In People v. Sandoval (2001) 87 Cal.App.4th 1425, the trial court permitted the prosecution to introduce at trial the preliminary hearing testimony of a victim and percipient witness to other charged offenses despite the fact that the prosecution averred it was unable to obtain his presence at trial. (Id. at pp. 1428-1433.) The appellate court held that the People failed to exercise reasonable efforts to secure the victim’s presence at trial; thus, defendant’s right to confrontation of the witnesses against him had been violated, resulting in prejudicial error. (Id. at pp. 1428, 1445.) Thus, all the cases exposited by defendant involve situations where evidence obtained from a particular witness on a contested issue was used against the defendant at trial, but the defendant was not afforded the opportunity to cross-examine the witness at trial because the People failed to exercise reasonable efforts to obtain the witnesses’ presence at trial. Here, as noted above, no evidence obtained from the victim relevant to defendant’s defense was adduced at trial; thus, defendant had no right to confront the victim on that issue at trial.
Defendant’s contention that the prosecution’s failure to produce the victim at trial prejudiced her defense is more appropriately framed as a violation of her Sixth Amendment right to compulsory process; but even so cast, defendant’s argument would fail. “Generally, it is not the duty of the prosecution to produce or to keep track of witnesses the defendant may later wish to have testify. (People v. Rance (1980) 106 Cal.App.3d 245, 253.) “‘[A]n accused is not entitled to a dismissal simply because he is unable to produce witnesses assertedly necessary to his defense. [Citation.] The rule is otherwise, however, where it is shown that the prosecution has wrongfully deprived an accused of the opportunity to secure the presence of a material witness.’” (In re Jesus B. (1977) 75 Cal.App.3d 444, 448.) “The mere fact that the Government deports [illegal-alien] witnesses is not sufficient to establish a violation of the Compulsory Process Clause of the Sixth Amendment or the Due Process Clause of the Fifth Amendment. A violation of these provisions requires some showing that the evidence lost would be both material and favorable to the defense.” (United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 872-873; see also People v. Valencia (1990) 218 Cal.App.3d 808, 825 [defendant must show deported witnesses’ testimony would have been favorable].” “Indeed, the Sixth Amendment does not by its terms grant to a criminal defendant the right to secure the attendance and testimony of any and all witnesses: it guarantees him ‘compulsory process for obtaining witnesses in his favor.’ [Citation.]” (Valenzuela-Bernal, at p. 867.)
Here, defendant failed to make any showing that the victim’s conjectured testimony at trial would have been favorable to her defense. Indeed, if anything, circumstances suggest otherwise. Likewise, defendant fails to aver any wrongful deprivation of her access to the witness on the part of the prosecution. The court’s finding that the prosecution had done everything reasonably necessary to obtain the victim’s presence at trial was thoroughly supported by the affidavit of Investigator Alvarez. Moreover, as the People noted, “if [the victim] was an important witness to the defense, the defense could have subpoenaed him. To my knowledge, they made no effort to bring him here themselves.” The court also observed that defendant could have made arrangements to attain the victim’s presence at trial if she believed his testimony was crucial to her defense: “And that, [defense counsel], you have had an opportunity as well to contact the victim through his mother; that you could have made the same request, could have made the same type of arrangements, accommodations to have the victim come to court to testify if you thought it was so important for him to be here to provide any type of exonerating evidence.” Thus, defendant’s contention, that her rights to confrontation or compulsory process were unconstitutionally violated, fails.
Finally, defendant’s contention that the victim’s absence made her testimony at trial unconstitutionally compelled is largely inscrutable. We understand, of course, that defendant could have presented her self-defense theory via questions directed at the victim on cross-examination; however, the questions themselves would have been improperly considered by the jury as evidence of her defense. (CALCRIM No. 104; People v. Clark (1993) 5 Cal.4th 950, 1033 disapproved of on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Only had the victim answered the questions by admitting that he had assaulted defendant, would his examination prove fruitful to her defense; however, any such conjecture is pure speculation as to what he would have testified. Indeed, if anything, it appears from the context of the record that he would likely have testified much in the manner as Efren, which would have solidified the prosecution’s case. Furthermore, as the court noted, the defense of self-defense is generally strongly tied to the defendant’s state of mind; thus, often inherently necessitating the defendant’s testimony. In any event, no one forced defendant to testify. As the trial court pointed out, defendant had already indicated her strong inclination to testify prior to the discovery of the victim’s unavailability and regardless of it thereafter. Thus, defendant’s testimony was not unconstitutionally compelled.
B. JUROR INSTRUCTIONS
Defendant contends the court erred in declining to instruct the jury with certain optional bracketed instructions in the standard jury instruction on self-defense, CALCRIM No. 3470, which she specifically requested. We hold that substantial evidence did not support giving the bracketed instructions.
In an unreported chambers conference, defendant apparently requested the court instruct the jury with CALCRIM No. 3470, the standard pattern jury instruction on self-defense. Defendant also apparently requested that the court instruct the jury with several of the optional bracketed instructions. The court agreed to instruct the jury with the standard instruction and two of the optional bracketed instructions, but denied defendant’s request to instruct on the remaining requested bracketed instructions.
With respect to the standard CALCRIM No. 3470 jury instruction, the court instructed the jury as follows: “Self-defense is a defense to Count 2, attempted murder. The defendant is not guilty of that crime if she used force against the other person in lawful self-defense. The defendant acted in lawful self-defense if: [¶] 1. The defendant reasonably believed that she was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully; [¶] 2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; and [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of violence to herself. The defendant’s belief must have been reasonable and she must have acted because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful self-defense. [¶] When deciding whether the defendant’s beliefs were reasonable, consider all of the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed. [¶] . . . [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. If the People have not met this burden, you must find the defendant not guilty of attempted murder as charged in Count 2.”
“[A]s a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor. [Citations.]” (Mathews v. United States (1988) 485 U.S. 58, 63, citing Stevenson v. United States (1896) 162 U.S. 313, 332 [refusal of voluntary manslaughter instruction in murder case where self-defense was primary defense constituted reversible error]; see also Keeble v. United States (1973) 412 U.S. 205, 208.) However, “[a] trial court has no duty to instruct the jury on a defense-even at the defendant’s request-unless the defense is supported by substantial evidence. [Citations.]” (People v. Curtis (1994) 30 Cal.App.4th 1337, 1355.)
Here, none of the optional bracketed instructions requested by defendant were supported by substantial evidence. Thus, the court acted appropriately in refusing them. The first bracketed instruction requested by defendant would have read, as modified for this case, “‘The defendant’s belief that she or someone else was threatened may be reasonable if she relied on information that was not true, however the defendant must actually reasonably have believed that the information was true.’” (CALCRIM No. 3407.) Defense counsel below argued that the victim reasonably believed defendant was present the previous night when she was raped; therefore, she reasonably believed the victim’s intent on the night of the instant incident was to rape her. The court properly refused the requested instruction because the defense theory was a non sequiter, i.e., just because the victim was present at the location of the alleged rape the previous night does not reasonably mean he intended to rape her the following night. Indeed, defendant testified that she previously felt comfortable with the victim and that he was a nice guy. Moreover, no evidence was adduced at trial that the victim was present the previous night at the time when defendant alleges she was raped. Thus, substantial evidence failed to support the instruction. Finally, the court found that the instructions as given, particularly the language that read “‘[w]hen deciding whether the defendant’s beliefs were reasonable, consider all of the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed’” adequately conveyed defendant’s theory. We agree.
While defendant testified that the victim picked her up and brought her to the truck yard, defendant at no time expressly testified or reported that the victim was present at the truck yard when she was raped. In fact, she testified she did not see the victim until sometime after the alleged rape. Moreover, defendant testified at trial that the rape occurred in the mechanic’s shop, but told Officer Delgado in her interview that the rape occurred in the trailer. Thus, even if the victim were on the property, no evidence was adduced that he was in close proximity to the site of the alleged rape or even knew it had or was occurring. Indeed, the court duly noted that even if the victim was on the property, “Being on the property outside, not knowing anything was going on inside, is not enough. So you need to give me specific testimony that she said that happened and [the victim] did nothing to prevent it.”
The next requested bracketed instruction would have read, “‘If you find that [the victim] threatened or harmed the defendant or others in the past, you could consider that information in deciding whether the defendant’s conduct and beliefs were reasonable.’” (CALCRIM No. 3407.) Again, no evidence was adduced at trial that the victim ever threatened defendant; thus, the instruction was properly refused.
Finally, defendant contends the court should have instructed the jury, as she requested below, with the bracketed instruction reading “‘[s]omeone who has been harmed by a person in the past is justified in acting more quickly or taking greater self-defense measures against that person.’” (CALCRIM No. 3470.) Yet again, no evidence was adduced that the victim ever threatened or harmed defendant in the past. Indeed, as noted above, the victim testified she felt comfortable with the victim and that he was a nice guy. Moreover, as the trial court noted, defendant obviously felt comfortable enough to return to the site of her alleged rape despite the victim’s presence. Thus, substantial evidence failed to support any of the optional bracketed instructions requested by defendant.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER Acting P. J., RICHLI J.
With respect to the optional bracketed instructions of CALCRIM No. 3470, the court gave the following: “[(1)] If you find that the defendant received a threat from someone else that she reasonably associated with [the victim], you may consider that threat in deciding whether the defendant was justified in acting in self-defense, [and (2)] A defendant is not required to retreat. She is entitled to stand her ground and defend herself and, if reasonably necessary, to pursue an assailant until the danger of death/bodily injury/sexual assault has passed. This is so even if safety could have been achieved by retreating.”