Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA071730. Richard R. Romero, Judge.
Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Assistant Attorney General, Pamela C. Hamanaka, Steven D. Matthews and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J
Appellant Cesar Villagrana (defendant) appeals his first degree murder conviction. He contends that evidence of his domestic violence and a fight in which he was stabbed should have been excluded as inadmissible character evidence. Defendant also asserts instructional errors. We reject defendant’s contentions, and affirm the judgment.
1. Procedural History
Defendant and codefendant Israel Ramirez (Ramirez) were charged with the first degree murder of Randolfo Gutierrez (Gutierrez). The information also alleged that both men had used a deadly and dangerous weapon, a knife, in the commission of the crime. In addition it was alleged that defendant had suffered two prior convictions in violation of the “Three Strikes” law (Pen. Code, §§ 1170.12, subds. (a) - (d), 667, subds. (b) - (i); one prior conviction within the meaning of section 667, subdivision (a)(1); and one prior prison term within the meaning of section 667.5, subdivision (b).
Ramirez is not a party to this appeal.
All further statutory references are to the Penal Code, unless otherwise indicated.
Defendant was convicted by jury of murder in the first degree. After a waiver of jury trial as to his prior felony convictions, the trial court found the prior allegations to be true. The trial court sentenced defendant to a prison term of 86 years to life. Defendant filed a timely notice of appeal.
2. Prosecution Evidence
On the night of September 4, 2006, Rosaura Gutierrez (Mrs. Gutierrez) heard her son, Gutierrez, arguing with someone outside their apartment. She testified that when she went outside, she saw Gutierrez arguing with defendant and heard Gutierrez say in Spanish, “If you’re gonna stab me, do it already.” Near them were Ramirez and a woman, later identified as Angela Estrada (Estrada). Gutierrez had no weapon that night.
Mrs. Gutierrez thought that defendant was about to attack her son, so she tried to place herself between them. As Estrada distracted Gutierrez, defendant attacked him from behind. Defendant reached over Mrs. Gutierrez’s shoulder with something shiny in his hand, and as Estrada and Ramirez helped him, defendant grabbed Gutierrez by the neck and placed him in a headlock. Defendant either hit or cut Gutierrez repeatedly as they all struggled. Mrs. Gutierrez did not know who inflicted which blow, but she could feel them as she hung onto her son, felt herself being cut, and saw blood on Gutierrez’s arm, and an injury on his neck.
Mrs. Gutierrez hit, kicked, and tried to scratch defendant as he pulled Gutierrez toward a red car parked nearby, dragging her along with them. Finally, Mrs. Gutierrez grabbed defendant’s crotch and squeezed, causing him to let go of her son. Defendant, Ramirez, and Estrada then ran to a car and left. Gutierrez later died from his injuries.
A neighbor, Ashonnette Akens (Akens), testified that he went outside after he and his mother heard screaming. He saw a woman and man holding his friend Gutierrez while defendant stabbed him in the neck and in the side. When Akens’s mother yelled, the assailants fled. Akens saw the knife when defendant entered the car.
Akens recognized defendant, who was known by the nickname “Orange County.” Two or three days before the murder, defendant had argued with his girlfriend at a party, and Gutierrez interfered, saying, “That’s not how you treat a female, ” or something to that effect. Defendant had been holding the girl by the arms, shaking her. Akens overheard defendant say to Gutierrez, “I got you, ese.” (Italics added.) He explained that ese was derogatory term.
Akens’s mother, Elena Segarra (Segarra), testified that the night of the murder, she went outside with her son at the sound of screams, and saw two men and a woman attacking Gutierrez. She saw defendant stab Gutierrez in his side and cut his throat. After the assailants left, she tried to help Gutierrez, who was bleeding profusely, while her daughter called the police.
Segarra recalled that about a week before the murder, Gutierrez brought a girl to her home to use the telephone. The girl was crying, upset, and appeared to have been hit in the face. Defendant was outside, drunk and angry. Defendant told Gutierrez that he should never have gotten involved, and that he was going to get him. Segarra interpreted defendant’s words as a threat to kill him, but Gutierrez told her, “He ain’t gonna do nothing.”
Another neighbor, Natividad Marroquin (Marroquin), also heard screams, as well as the sounds of fighting. She went downstairs into the alley, where she saw one man hold Gutierrez by the throat, while another man was hitting him with a jabbing motion to the ribs. Marroquin identified defendant as one of the assailants. She thought defendant was holding Gutierrez, while the other one, whom she could not identify, was hitting him, but she had poor eyesight due to her diabetes, and someone pulled her inside. She did not see a weapon. Marroquin had seen defendant once before the night of the murder.
Mayte Zamora (Zamora), defendant’s girlfriend and mother of his child, testified that she had had an argument with defendant in the alley sometime before the date of the murder, and that defendant argued with Gutierrez when the latter intervened and asked if she was all right. Defendant left with Estrada, which made Zamora cry, and Gutierrez took her somewhere to call her mother for a ride. Zamora denied hearing defendant threaten Gutierrez.
3. Ramirez’s Defense Evidence
Defendant did not present evidence in his defense. Ramirez, however, testified in his own defense. On the day of the murder, defendant and Estrada bought beer in 40-ounce bottles, and Ramirez drank with them, consuming one or two bottles. Ramirez claimed that Gutierrez attacked them “out of [nowhere], ” “like for no reason, ” and that as Gutierrez moved toward them, his mother said, “My son, don’t do it.” This made him think Gutierrez had a weapon, and believing his life was in danger, he swung his knife at him, aiming for his stomach, but did not see it penetrate. Ramirez claimed that he struck only after Gutierrez attacked him, and never intended to kill him, but was just trying to get Gutierrez away from him.
Ramirez claimed that after he saw the knife, he ran away and assumed that defendant and Gutierrez were exchanging blows.
Ramirez acknowledged that he had given a recorded interview to Detective Lasch of the Long Beach Police Department. The recording was played for the jury. In the interview, Ramirez told Detective Lasch, among other things, that he and defendant each carried a knife when they encountered Gutierrez, but Ramirez never saw defendant’s knife in his hand. Ramirez claimed Gutierrez attacked him, and although he claimed at first that Gutierrez had a knife, he later admitted that Gutierrez was unarmed. Ramirez then took his knife out of his pocket, and as defendant and Gutierrez fought, stabbed Gutierrez three or four times on the right side of his back. After Ramirez, defendant, and Estrada fled together, Ramirez and defendant disposed of their bloody clothing and washed the blood off the car. Defendant asked an acquaintance to retrieve the traffic ticket he dropped at the scene. Defendant admitted to Ramirez that he had stabbed Gutierrez, and told him that he had flushed his knife down the toilet.
DISCUSSION
I. Propensity/Character Evidence
Defendant contends that the trial court erred in admitting the following evidence: (1) the testimony by several witnesses that defendant had engaged in domestic violence prior to the murder; and (2) photographs taken at the time of defendant’s arrest on September 22, 2006, when he had fresh stab wounds from a fight in which he was involved after the murder. Defendant contends that the evidence was propensity evidence that should have been excluded pursuant to Evidence Code sections 1101 and 352.
“Evidence Code section 1101, subdivision (a) reflects the general rule that evidence of other crimes is inadmissible when offered solely to prove criminal disposition or a propensity on the part of the accused to commit the crime charged.” (People v. Koontz (2002) 27 Cal.4th 1041, 1083, italics added.) However, “[n]othing in [Evidence Code section 1101] prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident....” (Evid. Code, § 1101, subd. (b).)
“[E]vidence of a person’s character... in the form of... specific instances of his or her conduct... is inadmissible when offered to prove his or her conduct on a specified occasion.”
Evidence of bad character may be excluded upon objection. (People v. Thomas (1992) 2 Cal.4th 489, 520.) “On appeal, a trial court’s ruling under Evidence Code sections 1101 and 352 is reviewed for abuse of discretion. [Citations.]” (People v. Lewis (2001) 25 Cal.4th 610, 636-637.) It is defendant’s burden to establish an abuse of discretion. (Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 366.) The court’s discretion “will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999)20 Cal.4th 1, 9 10.)
Further, the erroneous admission of such evidence is reviewable on appeal only if a timely and specific objection was made, alerting the trial court to the nature of the anticipated evidence. (People v. Doolin (2009) 45 Cal.4th 390, 438; Evid. Code, § 353.) Defendant contends that he first objected to the challenged evidence in a conference held prior to opening statements. When the discussion apparently moved into the area of the admissibility of evidence, it was the prosecutor, not defense counsel, who brought up defendant’s recent stab wounds, indicating that he might bring the subject up in his case-in-chief, along with a photograph showing that the wounds appeared to be fresh when he was arrested 18 days after the incident.
Defense counsel objected to the use of autopsy photographs in the prosecutor’s opening statement, as well as any mention of allegations that defendant had hit or beaten his girlfriend, arguing that it was inadmissible as irrelevant, highly prejudicial, and improper impeachment. Counsel also objected to any mention of hearsay evidence regarding prior violence by defendant. In his opening statement, the prosecutor did not say that defendant had hit or beaten his girlfriend, only that they had fought, and he did not mention defendant’s recent wounds.
The trial court then asked defense counsel for her position on the two issues: that defendant struck his girlfriend and that his wounds on September 22, 2006, were recent. Counsel did not ask that this evidence be excluded, but asked that Segarra not be permitted to use the words hitting or fighting in describing defendant’s fight with his girlfriend, Zamora. Counsel also asked for a limiting instruction to ensure against the use of the evidence as improper character evidence.
The trial court ruled as follows: “Well, she can testify to sufficient detail to explain what she saw and why she would focus on [defendant]. So that’s permissible.” Counsel replied, “Just note my objection, please, Your Honor.” The court said, “Yes.”
A. Domestic Violence
Defendant contends that the trial court did not adequately weigh probative value and prejudicial effect of the evidence of domestic violence, but fails to specify just what parts of the testimony of Segarra and Akens were more prejudicial than probative.
Assuming that defendant meant to challenge testimony by Akens and Segarra relating to his violence toward Zamora, we have found two instances. Akens testified that defendant took Zamora by her arms and shook her. As defendant acknowledges, the trial court struck Segarra’s testimony regarding an argument or altercation between defendant and Zamora, because it was hearsay.
Thus, the only testimony concerning domestic violence admitted by the trial court was Akens’s description of defendant’s shaking Zamora. Defendant did not make a specific objection to this evidence, either in the motion in limine or when it was presented, and has thus not preserved any challenge to it -- if, indeed, this is the evidence he means to challenge. (See Evid. Code, § 352; People v. Ramos (1997) 15 Cal.4th 1133, 1171.)
Regardless, the trial court did not abuse its discretion in admitting evidence of defendant’s quarrel with Zamora and Gutierrez’s interference. Evidence of prior acts is admissible if relevant to prove some fact such as motive, intent, preparation, plan, or identity, even if it also shows the defendant’s bad character. (Evid. Code, § 1101, subd. (b).) So long as there is a direct relationship between the prior conduct and an element of the charged offense, the evidence is properly admitted. (People v. Daniels (1991) 52 Cal.3d 815, 856.) Here, there was a direct connection between the quarrel and the issues of identity, motive, planning, and intent. Because he witnessed the earlier quarrel, Akens was able to recognize and identify defendant as one of the assailants when he saw the attack on Gutierrez. Further, Gutierrez’s interference established defendant’s motive to seek retribution, and defendant’s subsequent threat to Gutierrez showed defendant’s intent to do so.
In sum, even if defendant had not forfeited his challenge to the evidence of his quarrel with Zamora, the trial court did not err in admitting it. Moreover, as defendant acknowledges, had the court erred, he would be required to show a reasonable probability of a more favorable result in the absence of the error, under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Stewart (2004) 33 Cal.4th 425, 478.)
Defendant suggests that the evidence of domestic violence unduly strengthened the prosecution’s case, which was otherwise weak, because “[t]here was no physical evidence linking [him] to the homicide or corroborating the testimonies of percipient prosecution witnesses and co-defendant’s confession.” By such an argument, defendant dismisses out of hand the overwhelming evidence of his guilt. Mrs. Gutierrez had seen defendant twice before the murder, most recently five hours beforehand. She witnessed the entire attack at very close range, and was able to recognize him in a photographic lineup and in court. Segarra, another eyewitness to the murder, had seen defendant before, recognized him when she saw him attack Gutierrez, and was able to identify him in court. A third witness, Marroquin, had also seen defendant before, and recognized him when she saw him attacking Gutierrez.
Furthermore, character evidence did not strengthen the prosecution case, as the trial court instructed the jury not to use evidence of defendant’s other acts to conclude that defendant had a bad character or was disposed to commit crime. The court instructed the jury to consider the evidence only for the limited purpose of deciding whether the witnesses were able to identify defendant, whether he acted with the requisite specific intent, or whether he had a motive to commit the charged offenses. Jurors are presumed to have understood and followed the trial court’s instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Defendant also contends that prejudice resulted when the trial court refused defense counsel’s request to sanitize the domestic violence incident. Counsel had asked that Segarra not use the words “fighting” or “hitting” in describing defendant’s argument with Zamora. As Segarra’s description of the argument was stricken altogether, there was nothing to sanitize and no undue prejudice.
We conclude that not only has defendant failed to establish an abuse of discretion, but he has not met his burden to show that he was harmed by the challenged evidence of his quarrel with Zamora.
B. Stab Wound Photographs
Defendant contends that the trial court erred in admitting evidence that when he was arrested on September 22, 2006, he had fresh stab wounds from a fight in which he was involved after the murder. We find no testimony regarding a fight in which defendant was stabbed, and defendant has referred to none in the record. Zamora testified that she was with defendant when he was arrested on September 22, 2006. At that time, when the police asked her if defendant had any injuries on him, she told them he had a stab wound on his side, and that it was two days old. There was no objection to this testimony at the time.
There was also testimony by medical examiner Dr. Paul Gliniecki, who gave his opinion that wounds depicted in a photograph admitted into evidence, without objection, were no more than two or three days old. There was no testimony establishing who was depicted in the photograph, and the wounds were not described as stab wounds.
As defendant made no objection to the evidence of his wounds, he has not preserved the issue for review. (Evid. Code, § 353.)
II. Instructions
Defendant contends that the trial court violated his right to due process and a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution, by making the following four instructional errors: (1) giving a modified form of CALCRIM No. 401, regarding aiding and abetting; (2) giving a modified form of CALCRIM No. 375, regarding evidence of an uncharged offense; (3) giving CALCRIM No. 875, regarding assault with a deadly weapon, without defining “assault”; and (4) failing to provide further definitions of “willful” or “deliberate” at the request of the jury.
A. CALCRIM No. 401: Aiding and Abetting
The trial court instructed the jury on aiding and abetting liability with CALCRIM No. 401, adding at the prosecutor’s request the following language: “Among the factors which may be considered in determining aiding and abetting are companionship and conduct before and after the offense.” Defendant contends that the added language contradicted the instruction that the jury must find that the intent to aid and abet the commission of the crime was formed before or during its commission by the perpetrator.
“[A]n appropriate instruction should inform the jury that a person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and [with] (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 561.) The jury should also be instructed that for aiding and abetting liability to attach, the intent to aid and abet must be formed prior to or during commission of the offense. (See People v. Cooper (1991) 53 Cal.3d 1158, 1164-1165 (Cooper).)
The trial court instructed the jury as follows, with the additional language in italics: “To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: 1, the perpetrator committed the crime; 2, the defendant knew that the perpetrator intended to commit the crime; 3, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and 4, the defendant’s words or conduct did, in fact, aid and abet the perpetrator’s commission of the crime. Someone aids and abets a crime if he knows of the perpetrator’s unlawful purpose and he specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime. If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. Among the factors which may be considered in determining aiding and abetting are companionship and conduct before and after the offense. If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him an aider and abettor.” (Italics added.)
Defendant acknowledges that courts have held that factors relevant to determining whether substantial evidence supports a finding that defendant was an aider and abettor include companionship and conduct before or after the offense. (E.g., In re Juan G. (2003) 112 Cal.App.4th 1, 5; People v. Campbell (1994) 25 Cal.App.4th 402, 409; In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094-1095.) However, he argues that because such cases do not reach the issue of instructing the jury regarding such factors, they are meant only to guide the appellate court, not the jury, and are thus inapplicable here.
In a case not cited by defendant, an appellate court found no error in giving a jury instruction with similar language. (People v. Brown (1981) 116 Cal.App.3d 820, 826.) There, the appellant objected to instructing the jury that ‘“conduct both before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.”’ (Id. at p. 826.) In an argument similar to defendant’s, the appellant asserted that instructing the jury to consider companionship and conduct after the commission of the crime would allow it to find aiding and abetting solely from the defendant’s presence while the perpetrator committed the crime. (Ibid.) However, that appellate court found no error because, just as in this case, the trial court otherwise properly instructed in all the elements of aiding and abetting and told the jury that mere presence was insufficient; that the aider and abettor must have shared the perpetrator’s criminal intent and acted with knowledge of the perpetrator’s unlawful purpose. (Ibid.)
Relying on Cooper, defendant also suggests permitting consideration of conduct after the crime is an incorrect statement of law. We disagree. In Cooper, the California Supreme Court did not so hold, nor did it consider the language challenged here. There, the court held that for a conviction of aiding and abetting a robbery, rather than the less serious offense of accessory after the fact, a getaway driver must form the intent to facilitate or encourage commission of the robbery prior to or during the carrying away of the loot to a place of temporary safety. (Cooper, supra, 53 Cal.3d at pp. 1165, 1167.)
Here, after defendant participated in fatally stabbing Gutierrez, he and Ramirez fled together, disposed of their bloody clothing together, and together washed the blood off the car in which they had fled. Defendant attempted to enlist someone to retrieve the traffic ticket he had dropped at the scene. Defendant admitted to Ramirez that he had stabbed Gutierrez, and told him that he had flushed his knife down the toilet.
Conduct after the commission of the crime, such as flight and hiding evidence, implies a consciousness of guilt, which juries may consider if the appropriate cautionary instruction is given, as it was here. (See People v. Thornton (2007) 41 Cal.4th 391, 437-438.) Thus, because conduct after the crime may be relevant to show a consciousness of guilt, and provide some circumstantial evidence of intent at the time of the commission of the crime, the language added by the trial court was a correct statement of law. (See In re Lynette G., supra, 54 Cal.App.3d at pp. 1094-1095 [flight].)
Defendant contends that the additional language played “a key role” in his conviction, and permitted the jury to find aiding and abetting liability on facts that showed him to be an accessory after the fact. Relying on People v. Guiton (1993) 4 Cal.4th 1116, 1130, he argues that reversal is required because the verdict does not indicate whether he was convicted under a correct or incorrect theory.
As we have found that the instruction was correct, it did not permit conviction on an incorrect theory. Moreover, no evidence suggested that defendant was a mere accessory after the fact. Overwhelming evidence showed that he was an active participant in the attack. He arrived on the scene with a motive to do violence, and he was either armed at the time of the attack or obtained a knife from Ramirez. Mrs. Gutierrez saw something shiny in defendant’s hand during the attack on her son. She felt herself being cut as she struggled with defendant. Akens saw defendant stab Gutierrez with a knife as Ramirez held him. Segarra saw defendant cut Gutierrez’s throat. It is thus unlikely that the additional language played “a key role” or any role in the jury’s verdict.
B. CALCRIM No. 375: Evidence of Prior Acts Limited to Identity, Intent, and Motive
Defendant contends that the court erred in giving CALCRIM No. 375. The instruction began: “The People presented evidence of other behavior by the defendant... that was not charged in this case that the defendant... threatened Randolfo Gutierrez and fought with Mayte Zamora.” The trial court then instructed the jury to consider the evidence only for the limited purpose of deciding whether the witnesses were able to identify defendant, whether the defendant acted with the requisite specific intent, or whether he had a motive to commit the charged offenses.
Defendant advances three reasons in support of his contention that CALCRIM No. 375 should not have been given: (1) the threat evidence was weak, and other evidence showed that Gutierrez did not consider defendant’s comments to be threats; (2) using defendant’s uncharged prior behavior to establish identity or motive was a pretext to present prejudicial character or propensity evidence; and (3) the instruction was an improper “pinpoint” instruction, because it highlighted specific evidence.
Defendant does not claim that he objected to the instruction on the first two grounds he urges here. Defendant objected to the reference in the instruction to evidence of threats, but he did not otherwise object to the instruction. Thus, he has not preserved those issues for appeal. (See People v. Hart (1999) 20 Cal.4th 546, 622.) Further, the instruction limited the use of the evidence, and defendant’s counsel had asked for a limiting instruction at the time the trial court ruled that it would admit evidence of defendant’s quarrel with Zamora and Gutierrez’s interference. The trial court was thus required to give such an instruction. (Evid. Code, § 355; People v. Falsetta (1999) 21 Cal.4th 903, 924.)
Defendant’s third ground -- the instruction was an improper pinpoint instruction -- lacks merit. Instructions pinpointing a party’s theory are proper so long as they are not argumentative. (People v. Wharton (1991) 53 Cal.3d 522, 570-571.) Argumentative pinpoint instructions are those which “‘invite[] the jury to draw inferences favorable to one of the parties from specified items of evidence.’” (People v. Earp (1999) 20 Cal.4th 826, 886.) Further, a pinpoint instruction must not express or suggest the court’s opinion. (People v. Wright (1988) 45 Cal.3d 1126, 1135-1137.)
As given here, CALCRIM No. 375 was not argumentative, as it did not invite or compel the jury to draw any inferences, and it did not express or suggest the court’s opinion. It was a limiting instruction given to protect defendant from improper inferences. It is not improper to refer generally to evidence in giving such a cautionary instruction. (Cf. People v. Ghent (1987) 43 Cal.3d 739, 759-760.) The instruction’s reference to evidence of threats was general and did not include the specific statements by defendant that he was going “to get” Gutierrez, and “I got you, ese.” (Italic added.) The trial court did not err in giving the instruction.
C. CALCRIM No. 875: Assault
Defendant contends that the trial court failed to define “assault” for the jury, and that the trial court had a sua sponte duty to instruct the jury on the elements of simple assault.
Defendant failed to object to or seek clarification of the trial court’s express statement that it would use CALCRIM No. 875 to define assault with a deadly weapon. Given that omission the claim was not preserved for appellate review and is forfeited. (See People v. Cleveland (2004) 32 Cal.4th 704, 705; People v. Palmer (2005) 133 Cal.App.4th 1141, 1156.)
Regardless, the claim is without merit. The trial court did not fail to define assault. The jury was instructed in this case with CALCRIM No. 875, which includes the elements of assault. (See People v. Golde (2008) 163 Cal.App.4th 101, 121-122.) Defendant acknowledges that the court read CALCRIM No. 875, but argues that the court should also have given an instruction regarding simple assault, such as CALJIC No. 9.00. Relying on People v. Hood (1969) 1 Cal.3d 444 (Hood), defendant contends that in all prosecutions for assault with a deadly weapon, the trial court must give a simple assault instruction sua sponte.
Defendant’s reliance on Hood is misplaced. Here, defendant was not charged with assault with a deadly weapon. Thus, the trial court was not required to instruct as to simple assault. Rather, assault with a deadly weapon was the target offense for purposes of the prosecution’s natural and probable consequences theory. (See generally People v. Prettyman (1996) 14 Cal.4th 248, 261, 266.) Under that theory, “a defendant may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the ‘natural and probable consequence’ of the target crime.” (Ibid.) The trial court had no sua sponte duty to identify other potential target crimes not identified by the prosecutor. (Id. at p. 269.) Nor was the court required to identify uncharged target offenses which would support a guilty verdict of a lesser included crime. (People v. Huynh (2002) 99 Cal.App.4th 662, 677-678.)
There was no error by the trial court.
D. Response to Jury Request re Willful and Deliberate
Defendant contends that the trial court gave an inadequate response to a request sent out by the jury during deliberations. The note read: “Would like definition of ‘willful’ in regards to ‘intent to kill’ under 1st degree murder beyond written in instructions. [¶] Also - deliberate.”
In a conference regarding the question, the court read the note to counsel, and commented: “I don’t think we can go beyond what’s written.” The prosecutor agreed, adding, “I’d just refer them back to the particular instruction that contains the definitions.” The court proposed to tell the jurors that it could do no more than refer them to the CALCRIM instruction already given, No. 521. Defendant’s counsel replied, “I agree with that, Your Honor, ” and then agreed to writing a note to the jury to that effect, rather than bringing the jurors back into the courtroom.
Although defendant agreed to the response, he now contends that the court erred, arguing that the definitions of “willful” in CALCRIM Nos. 521 and 875 conflicted with each other. He does not contend that the definition in either instruction was incorrect.
As respondent notes, defendant did not preserve the issue for appeal. “The long-standing general rule is that the failure to request clarification of an instruction that is otherwise a correct statement of law forfeits an appellate claim of error based upon the instruction given.” (People v. Rundle (2008) 43 Cal.4th 76, 151, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Moreover, because defendant expressly agreed to the court’s response to the jury’s request, he is barred from challenging it on appeal under the doctrine of invited error. (People v. Davis (2005) 36 Cal.4th 510, 539.)
Moreover, the definitions in the two instructions do not conflict with each other. Defendant contends that the conflict appeared in the following excerpt from the two instructions: “The defendant acted willfully if [he] intended to kill. The defendant acted deliberately if [he] carefully weighed the considerations for and against [his] choice, and knowing the consequences, decided to kill” (CALCRIM No. 521); and “Someone commits an act willfully when [he] does it willingly or on purpose. It is not required that [he] intend to break the law, hurt someone else, or gain any advantage” (CALCRIM No. 875).
“When considering a challenge to a jury instruction, we do not view the instruction in artificial isolation but rather in the context of the overall charge. [Citation.]” (People v. Mayfield (1977) 14 Cal.4th 668, 777.) “‘Jury instructions must be read together and understood in context as presented to the jury....’” (People v. Brock (2006) 143 Cal.App.4th 1266, 1277.)
Although defendant states that the language of the two instructions is contradictory, he fails to explain his conclusion or to cite authority to support his argument. Read in context, it is clear that CALCRIM No. 521 explained willful murder, while CALCRIM No. 875 explained willful assault. There is no contradiction. The jury was not instructed, as defendant’s argument suggests, that “willful” was defined as an intent to kill, nor was it told that a defendant acted willfully only if he intended to kill. The jury was not instructed that someone acts willfully only if he did not intend to hurt someone else. We assume that the jurors were capable and understood the instructions in the context intended by the court. (People v. Brock, supra, 143 Cal.App.4th at p. 1277.)
E. No Cumulative Error
As we have found no error, we reject defendant’s claim that cumulative error requires reversal.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, Acting P. J., ASHMANN-GERST, J.