Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF 010737, F. Paul Dickerson, III, Judge. Affirmed.
A. M. Weisman, 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, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Robin Derman, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Gaut, J.
All statutory references are to the Penal Code unless stated otherwise.
A jury convicted defendant of one count of making criminal threats, one count of assault with a firearm, and one count of possession of methamphetamine. (§§ 245, subd. (a)(2) and 422; Health & Saf. Code, § 11377, subd. (a).) The jury found true the allegations of personal firearm use on the first two counts. (§§ 1192.7, subd. (c)(8), and 12022.5, subd. (a).)
The court found that unusual circumstances justified a grant of formal probation for five years instead of a prison sentence.
Defendant appeals, raising issues regarding self-defense, defendant’s physical disabilities, and prosecutorial misconduct. He also cites the prejudicial exclusion of evidence regarding his earlier misdemeanor conviction. We reject these contentions and affirm the judgment.
2. Facts
The first witness at trial in 2006 was James Ray, the victim, who had prior convictions for commercial burglary in 1984, assault in 1987, and domestic violence in 2005. Ray began subletting an apartment from defendant, a former coworker, in April 2004. Ray and his fiancée, Paula Tillotson, shared one bedroom. Her son, Joshua, had his own bedroom. Defendant and his girlfriend, Christina Garcia (also known as Anita), shared the third bedroom. Everyone shared rent and utilities.
Ray had a cat for which he, Tillotson, and Joshua were responsible. Everyone was supposed to share kitchen duty. Ray denied the apartment was dirty or there was a problem with flies.
Defendant and Ray had argued about issues relating to the shared residence like spilled coffee, utility bills, and Joshua’s friends. In November 2004, defendant approached Ray about moving out but defendant could not find another apartment.
On November 18, Tillotson, Garcia, and defendant argued about toilet paper. Tillotson cut her finger slicing potatoes and called the paramedics. Later the same evening, defendant and Ray argued again and defendant stabbed Ray with his dinner steak knife, causing a one-inch laceration on Ray’s arm. Ray responded by punching defendant in the face and knocking him down. Ray was 42 years old, stands 6 feet 4 inches tall, and weighs 244 pounds. Defendant was 60 years old, stands 5 feet 9 inches tall, and weighs about 180 pounds. Defendant also has several serious medical conditions.
Ray, Tillotson, and Joshua continued living with defendant without paying rent. Ray told defendant if he was forced to leave defendant would also be evicted.
On February 25, 2005, Ray and Tillotson argued in the morning about moving. Later Ray made a purchase at a nearby liquor store. As he walked back to the apartment, he heard defendant arguing with Tillotson and yelling “You know who did it.” Ray confronted defendant and asked, “What the hell is going on.” Defendant pulled a gun out of his pocket and fired. Ray was not hit. Defendant put the gun in his pocket and said, “The next one, I won’t miss.”
A teenage witness, Alston Griffin accompanied Ray and Joshua returning from the liquor store and saw defendant arguing with Tillotson. Ray rushed over and began speaking to defendant. When Ray started to walk away, Griffin saw Ray take aim and heard a gunshot and the words, “The next one is going to be for you.”
Joshua testified similarly to witnessing the confrontation between Ray and defendant and defendant firing a shot. Joshua heard defendant say that Tillotson had “popped his tires or something.” Ray did not threaten defendant.
Tillotson testified she was outside when defendant and Garcia got into his car and discovered all four tires were flat. Both Ray and Tillotson had been drinking that day. Tillotson admitted she had argued with defendant about the cleanliness of the apartment and toilet paper. Defendant intimated Tillotson had flattened his tires and she responded he could do the same to her car. Ray approached and yelled at defendant but was not threatening. Defendant reached in his pocket, pulled out a gun, pointed it at Ray, and fired. Defendant stated “that was the first one, the next one won’t miss.”
The police found marijuana, methamphetamine, and a hand gun in defendant’s bedroom when they searched the apartment.
Defendant testified he used to be Ray’s work supervisor. Defendant suffered from arthritis, diabetes, and circulatory problems. He invited Ray to share the apartment. Ray and the others did not clean up the kitchen or the bathroom or change the cat litter. In November 2004, defendant told Ray he would have to move. Later, Tillotson and Garcia had a disagreement and defendant and Ray also argued. When Ray took a swing at defendant, defendant stabbed Ray with his steak knife.
They continued to share the apartment. But Ray and Tillotson drank a great deal. Ray refused to pay rent and said he would force defendant to leave also. Defendant began eviction proceedings in December 2004 and a hearing date was scheduled for March 3, 2005.
On the morning of February 25, 2005, Ray and Tillotson were noisy and slamming doors. From his bedroom, defendant heard Ray announce, “I ought to go in there and whip his ass.” Tillotson agreed. When Ray talked about kicking the door in, defendant put his pistol in his belt. Defendant resolved not to escalate the situation and tried to behave normally.
When defendant tried to drive Garcia home, he discovered the tires were flat on his truck. The tires had not been flat previously the same day. Tillotson remarked, “‘Oh, I see your tires are flat.’” He responded, “Like you don’t know.”
When Ray approached, Tillotson yelled at him, defendant “‘said you’ – slashed[,] punctured or flattened . . . ‘his tires.’” Ray yelled, “‘what the “F” are you doing,’ and waved his arms, and walk[ed] up in a distracting type of manner.” Ray used obscenities and waved his arms more. Defendant was afraid. He took the pistol out and, as Ray came closer, swinging his fists, defendant fired a warning shot. Ray did not have a gun and did not hit defendant. Defendant said, “The next one is going to lay you down.” Defendant told Garcia to call the police and defendant surrendered to them.
3. Antecedent Threats
The court gave a self-defense instruction based on CALCRIM No. 3470, including language that the jury may consider past threats or harm by the victim against the defendant “in deciding whether the defendant’s conduct and beliefs were reasonable.” The original version also contains an admonition that “Someone who has been threatened or 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 (2006-2007).) The Bench Notes to the instruction state that this portion of the instruction must be given on defense request when supported by sufficient evidence. (See People v. Pena (1984) 151 Cal.App.3d 462, 475; People v. Minifie (1996) 13 Cal.4th 1055, 1065, 1068.) The trial court had prepared the modified instruction. Defendant did not request the additional admonition and it was omitted without comment by anyone.
Defendant now charges the omission as reversible error. He argues the evidence showed ongoing conflict and previous assaults and threats by Ray that supported giving the omitted part of the instruction.
This issue has been decisively addressed in People v. Garvin (2003) 110 Cal.App.4th 484, 488-490 (Garvin), holding there is no sua sponte duty by the trial court to give a pinpoint instruction on antecedent threats. As in Garvin, “[t]he trial court was obligated to instruct on the basic principles of self-defense. It satisfied this duty by giving the standard [jury] instructions on this topic. These instructions are legally correct and the concept of antecedent assaults is fully consistent with the general principles that are expressed therein. (People v. Gonzales [(1992)] 8 Cal.App.4th [1658,] 1665.) The issue of the effect of antecedent assaults against defendant on the reasonableness of defendant’s timing and degree of force highlights a particular aspect of this defense and relates it to a particular piece of evidence. An instruction on the topic of antecedent assaults is analogous to a clarifying instruction. It is axiomatic that ‘[a] defendant who believes that an instruction requires clarification must request it.’ [Citation.] Therefore, we conclude that this is a specific point and is not a general principle of law; the trial court was not obligated to instruct on this issue absent request.” (Garvin, supra, at p. 489.)
We also reject defendant’s contentions that any error was prejudicial and his attorney’s failure to request instruction on this topic rendered her assistance ineffective. Defense counsel vigorously argued self-defense, including the existence of antecedent threats, to the jury in multiple ways and expressly asserted the jury could decide whether defendant’s conduct and beliefs were reasonable based on whether Ray had threatened or assaulted him in the past. It is not reasonably probable the jury, even with an express pinpoint instruction, would have reached a result more favorable to defendant. (Strickland v. Washington (1984) 466 U.S. 668, 684, 686-689; People v. Ledesma (1987) 43 Cal.3d 171, 215.)
4. CALCRIM No. 3429
No instruction was requested or given based on CALCRIM No. 3429: “A person with a physical disability is required to (know what/use the amount of care that) a reasonably careful person with the same physical disability would (know/use) in the same situation.” Defendant calls the omission an error. He contends his physical disabilities--arthritis, diabetes, and circulatory problems--were relevant to determine whether he acted in accordance with the reasonable person standard for self-defense: “While the objective reasonable person standard remains, it is the reasonable person with a similar physical disability.” (People v. Mathews (1994) 25 Cal.App.4th 89, 99.)
The trial court did not have a sua sponte duty to give CALCRIM No. 3429. (Garvin, supra, 110 Cal.App.4th at pp. 488-489.) Mathews, on which defendant relies is factually distinguishable. The Mathews defendant was confined to a wheelchair and was elderly, blind, and hearing impaired. The court held his physical disabilities were relevant to whether he knew the people entering his house were police officers when he brandished a weapon at them. (Mathews, supra, at pp. 93-94, 98, fn. 2, and 99.) Here defendant’s physical abilities did not impair his physical ability to perceive any purported threat from Ray.
Defendant may be contending his medical problems made him feel more vulnerable or threatened and had some bearing on the degree of self-defense he felt compelled to employ against Ray. But that issue is covered by the part of the instruction stating the jury could in “deciding whether the defendant’s beliefs were reasonable, consider all 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.”
Under these circumstances, defendant again cannot establish prejudicial error or ineffective assistance of counsel.
5. Propensity Evidence
The jury heard testimony about the November altercation between defendant and Ray but was not allowed to learn that the case against defendant was resolved by a misdemeanor plea bargain. Defendant contends it was a violation of due process and prejudicial error to allow some facts relating to the propensity evidence but to exclude the ultimate fact of the misdemeanor conviction. (§ 1108, subd. (b).) We review the trial court’s evidentiary ruling for an abuse of discretion. (§ 352; People v. Valdez (2004) 32 Cal.4th 73, 109.)
In People v. Falsetta (1999) 21 Cal.4th 903, 917 (Falsetta), the California Supreme Court “observed that the prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jury’s attention would not be diverted by having to make a separate determination whether defendant committed the other offenses. [Citation.]”
Falsetta, however, was concerned with a series of sex offenses, which, by their nature, are more inflammatory than the present two incidents involving feuding roommates. The other two cases cited by defendant also involved more serious sexual crimes. (People v. Callahan (1999) 74 Cal.App.4th 356; People v. Harris (1998) 60 Cal.App.4th 727.) In Falsetta and Harris, the courts were concerned that the juries might punish the defendants for their subsequent sex crimes if they thought they had been spared punishment previously. (Falsetta, supra, 21 Cal.4th at p. 917; Harris, supra, at p. 739.) Callahan is distinguishable because, in that case, defendant complained on appeal about the trial court granting his motion to exclude the prior conviction, not the trial court denying defendant’s motion to allow such evidence.
In the present case, we agree with the trial court’s assessment that the information about defendant’s misdemeanor plea bargain would have been more prejudicial than probative and there was no abuse of discretion in excluding it, particularly when defendant was allowed to elicit all the relevant facts about the November incident through examination and cross-examination.
6. Prosecutorial Misconduct
In his rebuttal argument, the prosecutor referred to the defendant’s strategy as being that of a “snow globe” in which pieces of distracting information, like fake snow in a globe, are shaken up together and swirled around. Defendant describes this style of argumentation as prosecutorial misconduct. He particularly objects to the prosecutor’s comments about “defendant’s medical issues. [¶] These are things where each time one of these things is introduced they’re hoping, you know, maybe they can shake this thing up, there’s enough stuff in there that when they go back there, when the juries go back there and sit down [sic] talk about this case, they think about these other things, not about what’s on the inside, about the real issues in this case.” Defendant contends the foregoing was misleading because a man’s physical abilities are relevant to the issue of whether his conduct in self-defense was reasonable. (People v. Mathews, supra, 25 Cal.App.4th at pp. 99-100.)
Defendant’s failure to object to this line of argument or to request a curative admonition waives his claim on appeal. (People v. Frye (1998) 18 Cal.4th 894, 970.) Notwithstanding the waiver, we do not agree there was misconduct. (People v. Navarette (2003) 30 Cal.4th 458, 506.)
It is not misconduct for a prosecutor to accuse defense counsel of obscuring the evidence by using the image of a smoke screen, the metaphor of “ink from an octopus,” or the comparison to throwing sand in the jury’s eyes. These, like the snow globe description, are all variations of “accusing the defense of attempting to hide the truth, and . . . would be understood as nothing more than urging the jury not to be misled by the evidence.” (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)
Nor did the prosecutor misstate the law. (People v. Hill (1998) 17 Cal.4th 800, 819.) Instead, he argued defendant had not acted reasonably under the circumstances, including defendant’s acknowledged medical problems.
The court cured any possible impropriety when it instructed the jury that it must follow the court’s instructions if the attorneys’ comments presented a conflict and that the attorneys’ statements were not evidence. (CALCRIM Nos. 200 and 222.) We presume the jury followed its instructions. (People v. Hinton (2006) 37 Cal.4th 839, 871.)
Nor is it reasonably probable defendant would have achieved a more favorable result without the prosecutor’s argument. (People v. Barnett (1998) 17 Cal.4th 1044.) Hence, no ineffective assistance of counsel can be demonstrated for defense counsel’s failure to object.
7. Disposition
We affirm the judgment in its entirety.
We concur: Ramirez, P. J., King, J.