Opinion
NOT TO BE PUBLISHED
OPINION
DAVIS, Acting P.J.
A jury convicted defendant Frank Glen Alvarez of second degree murder and found that he personally used a deadly weapon, a knife, to commit the offense. (Pen. Code, §§ 187, subd. (a), 12022, subd. (b)(1).) In a bifurcated proceeding, the trial court found that defendant had 10 prior serious felony (strike) convictions. (§§ 667, subds. (a), (b)-(i), 1170.12.)
Hereafter, undesignated section references are to the Penal Code.
Sentenced to a prison term of 61 years to life, defendant appeals. He contends the trial court erred (1) in failing to instruct on its own motion on the effect of a prior assault by the victim against him (and, if not an error, claims his counsel was ineffective in failing to request this instruction, as well as one on voluntary intoxication); (2) in instructing with CALJIC No. 5.31 (defending against a fist assault; (3) in instructing with CALJIC No. 8.72 (juror unanimity and giving the benefit of doubt to manslaughter); (4) in finding a prior conviction for assault with a deadly weapon to be a serious felony; and (5) in awarding one less day of presentence custody credit.
The People concede the last point and we agree. Defendant will get his one day and an otherwise affirmed judgment.
Background
Defendant did not dispute that he committed a homicide. He claimed it was committed in actual self-defense (honest and reasonable belief in need to defend) or imperfect self-defense (honest but unreasonable belief).
Around 8:00 p.m. on July 28, 2005, defendant and a female companion were walking toward a light rail station when an irate man (later identified as the victim, Darrel McEwan) ran up behind them. All three appeared to be drunk, with defendant apparently the most intoxicated.
Angry and cussing, McEwan accused the woman of stealing a small radio from him and demanded it back. The woman removed the radio from her pocket and started to hand it to McEwan. Snatching the radio, McEwan gave the woman a “little shove,” and she stepped back. McEwan then pushed defendant (who has only one arm) in the area of his missing arm.
At this point McEwan started to walk away, climbed over a three-foot wall at the station, then turned and said something like, “What are you going to do about it, motherfucker?” In the meantime, defendant had unzipped and removed something from his backpack.
Defendant then approached McEwan and stabbed him in the chest. Bleeding profusely, McEwan pulled a knife from his chest and slumped upon the wall.
Defendant told his female companion that it was all her fault because she was “always starting shit,” and added, “let’s get out of here.”
Police arrived and defendant, who was just across the street walking, was pointed out and arrested.
McEwan’s cause of death was a stab wound, five to six inches deep, that penetrated his heart and liver. His blood alcohol level was .35 percent.
Reginald Jacobs, a truck driver, testified for the defense that he was helping his girlfriend, who was a flea market vendor, one morning in the summer of 2005 when he heard some cussing behind a building and saw a big guy (identified as McEwan) twice push a smaller, one-armed man (identified as defendant) to the ground. Jacobs intervened verbally and the men walked away. Jacobs did not see any injuries on defendant.
Discussion
1. Sua Sponte Instruction on Prior Assault; Ineffective Assistance of Counsel
a. Sua Sponte Instruction
Defendant contends the trial court erred in failing to give an instruction sua sponte (on its own motion) on the effect of McEwan’s assault of defendant (at the flea market) concerning the reasonableness of defendant’s (self-defense) conduct at the light rail station.
Defendant relies upon a well-established line of authority that holds it is erroneous, in the self-defense context, to refuse a request for instruction on the effect of the victim’s prior threats or assaults concerning the reasonableness of the defendant’s conduct. (People v. Garvin (2003) 110 Cal.App.4th 484, 488 (Garvin), citing People v. Moore (1954) 43 Cal.2d 517, 531, People v. Torres (1949) 94 Cal.App.2d 146, 151-153, People v. Bush (1978) 84 Cal.App.3d 294, 302-304, People v. Pena (1984) 151 Cal.App.3d 462, 474-478, People v. Gonzales (1992) 8 Cal.App.4th 1658, 1663-1664 (Gonzales); see CALJIC No. 5.50.1.)
The Garvin decision, however, concluded that a trial court is not obligated to give such an instruction sua sponte. (Garvin, supra, 110 Cal.App.4th at pp. 488-489.) Garvin noted that a trial court “‘is required to instruct sua sponte only on general principles which are necessary for the jury’s understanding of the case. It need not instruct on specific points or special theories which might be applicable to a particular case, absent a request for such an instruction.’” (Ibid., quoting People v. Owen (1991) 226 Cal.App.3d 996, 1004-1005.) Garvin reasoned that the effect of a victim’s prior assaults against a defendant on the reasonableness of the defendant’s self-defense conduct highlights a particular aspect of this defense and relates it to a particular piece of evidence. Therefore, the issue of prior assaults covers a specific point (a pinpoint) rather than a general principle of law, and a trial court is not obligated to instruct on this issue absent request. (Garvin, supra, 110 Cal.App.4th at p. 489.)
Garvin recognized that a trial court is obligated to instruct on the general principles of self-defense as applicable. The trial court in Garvin satisfied this duty by giving the standard CALJIC instructions on the defense; Garvin added, “the concept of antecedent assaults is fully consistent with the general principles that are expressed therein.” (Garvin, supra, 110 Cal.App.4th at p. 489, citing Gonzales, supra, 8 Cal.App.4th at p. 1665.)
Under the reasoning of Garvin, then, the trial court here was not obligated to instruct sua sponte on the issue of McEwan’s prior assault against defendant. The trial court instructed on the general principles of self-defense as applicable. Consequently, the trial court did not err in failing to instruct on the effect of the prior assault.
The trial court provided: CALJIC Nos. 5.12 (actual and reasonable belief in necessity to defend--justifiable homicide in self-defense), 5.17 (actual but unreasonable belief in necessity to defend--manslaughter), 5.14 (reasonable ground of apprehension does not require actual danger), 5.15 (charge of murder--burden of proof regarding justification or excuse), 5.31 (assault with fists--when use of deadly weapon not justified), and 5.52 (self-defense--when danger ceases).
Defendant counters, though, that the Garvin trial court’s self-defense instructions included CALJIC Nos. 5.51 and 5.30, which defendant argues encompass the concept of prior assaults (as highlighted below), but which were not given here.
CALJIC No. 5.51 provides: “Actual danger is not necessary to justify self-defense. If one is confronted by the appearance of danger which arouses in his mind, as a reasonable person, an actual belief and fear that he is about to suffer bodily injury, and if a reasonable person in a like situation, seeing and knowing the same facts, would be justified in believing himself in like danger, and if that individual so confronted acts in self-defense upon these appearances and from that fear and actual beliefs, the person’s right of self-defense is the same whether the danger is real or merely apparent.” (Italics added in defendant’s briefs.) CALJIC No. 5.30 states as pertinent: “It is lawful for a person who is being assaulted to defend himself from attack if, as a reasonable person, he has grounds for believing and does believe that bodily injury is about to be inflicted upon him.” (Italics added in defendant’s briefs.)
Although the trial court did not instruct with CALJIC Nos. 5.51 or 5.30, it did instruct along similar lines with CALJIC No. 5.14, which, as given, provided: “The reasonable ground of apprehension does not require actual danger, but it does require (1) that the person about to kill another be confronted by the appearance of a peril such as has been mentioned [i.e., imminent danger of death or great bodily injury]; (2) that the appearance of peril arouse in his mind an actual belief and fear of the existence of that peril; (3) that a reasonable person in the same situation, seeing and knowing the same facts, would justifiably have, and be justified in having, the same fear; and (4) that the killing be done under the influence of that fear alone.” (Italics added.) This instruction contradicts defendant’s assertion that the self-defense instructions given here limited the reasonable person standard to the immediate circumstances at the light rail station without the prior circumstances of McEwan’s antecedent assault.
We conclude the trial court did not err in failing to instruct sua sponte on the effect of McEwan’s prior assault against defendant concerning the reasonableness of defendant’s self-defense conduct.
b. Ineffective Assistance of Counsel
Anticipating this conclusion, defendant claims his counsel was ineffective in failing to request an instruction on the effect of the prior assault by McEwan on the reasonableness of defendant’s conduct. Defendant also claims his counsel was ineffective in failing to request an instruction on voluntary intoxication that would negate malice.
To establish ineffective assistance of counsel, a defendant must show that his counsel performed unreasonably in an objective sense, and that he has been prejudiced--i.e., there is a reasonable probability the result would have been different absent the deficient performance (a probability sufficient to undermine confidence in the outcome). (In re Avena (1996) 12 Cal.4th 694, 721.)
As for the failure to request an instruction on the effect of the prior assault, defendant cannot establish the required prejudice to show ineffective assistance. The lack of prejudice here aligns with that described in Gonzales, where the court found harmless the trial court’s failure to give a requested instruction on the effect of an antecedent assault. (Gonzales, supra, 8 Cal.App.4th at pp. 1663-1665.)
As in Gonzales, defense counsel here “thoroughly aired” the subject of the prior assault in argument. (Gonzales, supra, 8 Cal.App.4th at p. 1664.) As in Gonzales, defense counsel argued that McEwan’s prior assault colored defendant’s perception and response. (Ibid.) And Gonzales’s reasoning as to harmlessness applies aptly here: “The concept at issue here [of prior assault and the reasonableness of defendant’s self-defense conduct] is closer to rough and ready common sense than abstract legal principle. It is also fully consistent with the otherwise complete self-defense instructions given by the court. It is unlikely the jury hearing the evidence, the instructions given and the argument of counsel would have failed to give the defendant’s position full consideration.” (Id. at p. 1665, fn. omitted.)
That leaves counsel’s alleged ineffectiveness in failing to request instruction on defendant’s voluntary intoxication to negate malice.
Evidence of voluntary intoxication is admissible to negate the required mental state for murder of express or implied malice aforethought. (People v. Whitfield (1994) 7 Cal.4th 437, 449.) As the basis for this instruction, defendant relies on a lay witness’s observation at the scene that described defendant as drunk, and apparently more intoxicated than McEwan (whose blood alcohol level was subsequently measured at .35 percent).
The problem for defendant on this issue is the limited nature of the appellate record. In the usual situation, such as this one, “where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.” (People v. Weaver (2001) 26 Cal.4th 876, 926.) Here, we can conceive of a reason for failing to request instruction on intoxication. The defense was self-defense, either actual or imperfect. An instruction on voluntary intoxication would have taken the jury’s eye off of self-defense--in an encounter that featured a large, belligerent victim pitted against a smaller, one-armed defendant--and may have cast it upon defendant as more of an intoxicated aggressor.
We do not find on the appellate record before us that defendant’s attorney rendered ineffective assistance of counsel.
2. CALJIC No. 5.31 (Self-Defense--Assault with Fists)
Defendant contends the trial court erred in giving CALJIC No. 5.31. As given, CALJIC No. 5.31 provided: “An assault with the fists does not justify the person being assaulted in using a deadly weapon in self-defense unless that person believes and a reasonable person in the same or similar circumstances would believe that the assault is likely to inflict great bodily injury upon him.”
Defendant claims the instruction was improper for two reasons: (1) the instruction is intended as a companion instruction to CALJIC No. 5.30 (self-defense--force reasonably necessary); and (2) it assumes the defendant is able-bodied and capable of defending himself with fists, but defendant here has only one arm.
As for defendant’s first point about CALJIC Nos. 5.30 and 5.31 being inseparable companions, defendant relies on People v. Enriquez (1977) 19 Cal.3d 221. Enriquez merely stated that “CALJIC No. 5.30 instructs that a person being subjected to an assault may use all force he believes reasonably necessary to prevent an injury which appears imminent. CALJIC No. 5.31, however, places a limitation on the amount of retaliatory force which may be used against an assault with fists. Such an assault does not justify the use of a deadly weapon in self-defense [unless the attacked person reasonably believes the assault is likely to inflict great bodily injury].” (19 Cal.3d at p. 228.)
As relevant, CALJIC No. 5.30 states that a person engaging in self-defense “may use all force and means which he believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent.”
Enriquez does not state that CALJIC Nos. 5.30 and 5.31 must be given together. Nor do the use notes in the CALJIC manual allude to any such requirement. Here, CALJIC No. 5.31 applied under the facts of this case where McEwan initially pushed or shoved defendant.
And that brings us to defendant’s second point. Defendant argues that because he has only one arm, he could not be expected to defend himself with “fists” against such an assault by a much larger, able-bodied assailant such as McEwan. CALJIC No. 5.30, defendant asserts, allows a person to use the force “reasonably necessary” to prevent injury which appears imminent. For a person such as defendant who is unable to defend using his fists, use of a weapon may be “reasonably necessary.” CALJIC No. 5.31, defendant maintains, denied him that right.
Defendant’s argument is both legally creative and legally wrong. The argument fails to read CALJIC No. 5.31 in its entirety, and defendant is not legally entitled to use greater force than any other person engaging in self-defense. CALJIC No. 5.31 specifies that “[a]n assault with the fists does not justify the person being assaulted in using a deadly weapon in self-defense unless that person believes and a reasonable person in the same or similar circumstances would believe that the assault is likely to inflict great bodily injury upon him.” (Italics added.) As the People persuasively maintain, “[p]art of [defendant’s] ‘circumstances’ is that he has only one arm. The overarching rule is the same for everyone: the self-defense response must be reasonable under the circumstances. The one-armed defendant is in the same legal position as the defendant with two arms, just a different circumstance.” (Italics in the People’s brief.)
Defendant complains, though, that when CALJIC No. 5.31 is given in a case where a defendant is unable to defend himself with fists, “it means that [] he must submit to an assault and any infliction of minor to moderate injury upon him, as long as the assailant does not threaten to inflict great bodily injury upon him.” (Italics in defendant’s brief.) Again, the People have the answer: “The answer, of course, is that the one-armed man need not submit to any more than the two-armed man; but neither [of them] can use a deadly weapon in self-defense unless threatened with an assault likely to inflict great bodily injury. . . . The corollary to [defendant’s] argument is that a ‘disabled’ person facing an unarmed assailant who seeks to inflict even ‘minor or moderate’ injury may use deadly force in response. [Defendant] cites no authority for such a proposition, and it is clearly contrary to the law of self-defense . . . .” (Italics in the People’s brief.)
We conclude the trial court did not err in instructing with CALJIC No. 5.31.
3. CALJIC No. 8.72
Defendant contends the trial court erred in giving CALJIC No. 8.72, which, as given, stated: “If you are convinced beyond a reasonable doubt and unanimously agree that the killing was unlawful, but you unanimously agree that you have a reasonable doubt whether the crime is murder of the second degree or voluntary manslaughter, you must give the defendant the benefit of that doubt and find it to be voluntary manslaughter rather than murder of the second degree.”
Defendant argues that CALJIC No. 8.72 erroneously requires juror unanimity before any juror can give a defendant the benefit of the doubt between murder and manslaughter, thereby diluting the People’s burden of proving murder rather than manslaughter beyond a reasonable doubt.
As defendant acknowledges, this court, in People v. Pescador (2004) 119 Cal.App.4th 252, recently rejected a similar challenge to CALJIC No. 8.72 in light of other instructions which informed the jurors of their duty to each give an individual opinion. As we stated in Pescador: “CALJIC No. 8.72, when considered in context with CALJIC Nos. 8.50, 17.11, and 17.40, did not instruct the jury that it had to make a unanimous finding that they had a reasonable doubt as to whether the crime was murder or manslaughter in order for defendant to receive the benefit of the doubt.” (Pescador, supra, 119 Cal.App.4th at p. 258.)
CALJIC No. 8.50 was given here, which stated as pertinent that “[t]o establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder . . . .” CALJIC No. 17.40 was also given here, which stated as pertinent that “[t]he People and the defendant are entitled to the individual opinion of each juror. [¶] . . . Each of you must decide the case for yourself . . . .” The third contextual instruction cited in Pescador, CALJIC No. 17.11--which gives the benefit of the doubt between first and second degree murder to the second degree--was not given here because only second degree murder and manslaughter were at issue.
We adhere to Pescador and find the trial court did not err in instructing with CALJIC No. 8.72.
Defendant contends a different conclusion is compelled by a 1988 United States Supreme Court decision, Mills v. Maryland (1988) 486 U.S. 367 [100 L.Ed.2d 384]. We disagree.
In Mills, the high court found some death penalty trial instructions unconstitutional because there was a substantial probability that jurors would misinterpret the instructions to mean that all jurors had to agree on the existence of a mitigating circumstance before any juror could give it effect. But as the People note, in Mills, unlike in Pescador and here, there were no other instructions clarifying or providing context for the arguably ambiguous one. (See Mills, supra, 486 U.S. at pp. 378-379, incl. fn. 11.)
Defendant also claims that the cumulative effect of all the alleged errors discussed previously necessitates a reversal. Since we have not found any individual error, there can be no cumulative error.
4. The 1985 Prior Conviction as a Serious Felony
Defendant claims that his 1985 conviction for assault with a deadly weapon was not proven by sufficient evidence to be a “serious felony” for purposes of the three strikes law (§§ 667, subds. (b)-(i), 1170.12) and the prior serious felony five-year enhancement (§ 667, subd. (a); see § 1192.7, subd. (c)). We disagree.
In a bifurcated trial, the trial court found that defendant had 10 prior serious felony convictions: a 1992 conviction for arson (§ 451, subd. (b)); a 1985 conviction for assault with a deadly weapon, a knife (§ 245, subd. (a)), the conviction at issue here; seven convictions for armed robbery (§§ 211, 12022.5) and one conviction for armed burglary (§§ 459, 12022.5) (these latter eight convictions were brought and tried together in 1975).
California law specifies that in determining whether a prior conviction qualifies as a “serious felony” conviction, the inquiry is a limited one based upon the record of the prior criminal proceeding, with a focus on the elements of the offense of which the defendant was convicted. (People v. McGee (2006) 38 Cal.4th 682, 706.) If the enumeration of the elements of the offense does not resolve the issue, the court may examine the record of the prior proceeding to determine whether that record demonstrates that the prior conviction is of the type that meets the “serious felony” definition. (Ibid.; People v. Woodell (1998) 17 Cal.4th 448, 452-461.)
The record of defendant’s 1985 assault conviction that the prosecutor tendered to prove the conviction was a “serious felony” conviction consisted of the complaint, the information, the preliminary hearing holding order, the transcript of the hearing on the plea, the minute order on defendant’s change of plea, the minute order of judgment and sentencing, and the abstract of judgment.
We examine the record for substantial evidence that the 1985 assault conviction is a “serious felony.” (People v. Luna (2003) 113 Cal.App.4th 395, 398 (Luna).) A “serious felony” conviction includes a conviction for “assault with a deadly weapon . . . in violation of Section 245.” (§ 1192.7, subd. (c)(31); see § 667, subds. (a)(4), (d)(1); Luna, supra, at p. 398.)
The information underlying defendant’s 1985 assault conviction charged him with violating “Section 245(a)” in that he “willfully, unlawfully, and feloniously commit[ted] an assault upon Victor Aguilar, a human being, with a deadly weapon, to wit, a knife.” The transcript of defendant’s plea hearing regarding this conviction shows that defendant pleaded guilty “to [this] charge,” in that he “willfully, unlawfully and feloniously commit[ted] an assault upon Victor Aguilar, a human being, with a deadly weapon, a knife.”
The record of the 1985 assault conviction thus provides substantial evidence to support the trial court’s finding that this conviction was a “serious felony” because the assault conviction meets the definition of “serious felony” of section 1192.7, subdivision (c)(31): “assault with a deadly weapon . . . in violation of Section 245.”
Defendant counters, however, that the transcript of defendant’s 1985 plea hearing shows the plea encompassed a negotiated agreement in which defendant pleaded guilty to the assault as charged in the information in exchange for a dismissal of the great bodily injury and prior conviction allegations. In that transcript, defendant notes, the prosecutor also stated that he was unable to locate the alleged victim, Victor Aguilar; that, as a result, he (the prosecutor) had substantial doubt as to his ability to prove that defendant had the specific intent to inflict great bodily injury; and that, as an additional result, he would not be able to establish that the section 245 conviction was a serious felony. Furthermore, defendant adds, the transcript shows that a witness who had identified defendant as the 1985 assailant recanted her identification at the preliminary hearing.
Based on these transcript passages, defendant argues that “[t]he People announced that they could not prove the [1985] offense as a serious felony at the time. That is why a plea bargain was negotiated. It would be absurd to allow the People to claim that the [1985] conviction was for a serious felony when they stated that they could not prove that very fact at the time the [1985] case was prosecuted.”
Defendant might have a point had the voters not intervened and expanded the “serious felony” definition of section 1192.7 at the March 2000 Primary Election. (Luna, supra, 113 Cal.App.4th at pp. 397, 398-399 [applying this expanded definition--§ 1192.7, subdivision (c)(31)--to uphold a 1994 section 245 conviction as a serious felony conviction].) Prior to this expansion, a section 245 conviction for assault with a deadly weapon, to constitute a serious felony, would have required a defendant to have “personally inflict[ed] great bodily injury” (§ 1192.7, subd. (c)(8)), or to have “personally use[d] a . . . deadly weapon (§ 1192.7, subd. (c)(23)). But as the Luna court recognized, “section 1192.7, subdivision (c)(31) [adopted by the voters at the March 2000 Primary Election] merely requires that the accused previously have been convicted of ‘assault with a deadly weapon . . . in violation of Section 245.’ There is no requirement that the accused personally use the deadly weapon [or personally inflict great bodily injury] as in . . . section 1192.7, subdivision (c)(8) and (23).” (Luna, supra, 113 Cal.App.4th at p. 398, italics in original; see also People v. Banuelos (2005) 130 Cal.App.4th 601, 606-607 [disagreeing with Luna on its specific facts, which are not pertinent here, but agreeing that the enactment of section 1192.7, subdivision (c)(31) “means that an unambiguous reference [in the prior conviction record] to a conviction of assault with a deadly weapon will now suffice to prove a serious felony”].)
And, finally, defendant’s due process-based claim that it “was an implied term of the plea bargain in the [1985] case that the [assault with a deadly weapon conviction] would not be treated as a serious felony,” rings hollow. Defendant received the benefit of his 1985 bargain in that the great bodily injury and prior conviction allegations were stricken. There was no implication in the 1985 plea bargain that the assault conviction could never be deemed a serious felony conviction.
5. Extra Day of Credit for Time Served
The People do not object, and neither do we, to an award of one more day of presentence custody credit, given that defendant was arrested on the night of July 28, 2005, but not booked into jail until after midnight, July 29.
Disposition
The judgment is modified to award defendant an additional day of presentence custody credit. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this additional day, and to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON, J., BUTZ, J.