Opinion
D074170
09-23-2019
THE PEOPLE, Plaintiff and Respondent, v. RICHARD BARRON, Defendant and Appellant.
Charles M. Sevilla for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Michael Pulos and Nora S. Weyl, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN367520) APPEAL from a judgment of the Superior Court of San Diego County, Harry L. Powazek, Judge. Affirmed. Charles M. Sevilla for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Michael Pulos and Nora S. Weyl, Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted Richard Barron of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and found true allegations that he personally inflicted great bodily injury on a person 70 years of age or older (§ 12022.7, subd. (c)) and personally used a dangerous and deadly weapon (§ 1192.7, subd. (c)(23)). The court ordered Barron to serve three years of formal probation with 120 days in custody. Barron contends: (1) the prosecutor erred during presentation of the case and in final argument by diluting the applicable beyond-a-reasonable-doubt standard of proof to a mere "reasonableness" standard akin to the prosecutor's conduct in People v. Centeno (2014) 60 Cal.4th 659; (2) prejudicial evidentiary errors deprived him of his due process right to a fair trial; (3) the court improperly instructed the jury as to defense of property; and (4) his defense counsel provided constitutionally ineffective assistance that prejudiced his fair trial rights. Barron maintains the cumulative effect of these errors warrants a new trial.
Undesignated statutory references are to the Penal Code.
We reject these contentions, and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Because Barron does not challenge the sufficiency of the evidence of his conviction or the true findings on the allegations, we briefly summarize the facts of the incident. We relate additional facts below to the extent they are relevant to the issues on appeal, including as to whether Barron suffered prejudice from any asserted error.
Barron and the victim, J.Z., were neighbors. Barron owned several dogs, and he and J.Z. or J.Z.'s family members had previous interactions about the dogs being permitted to roam outside without leashes. One of the past incidents resulted in a physical altercation between Barron and J.Z.
One evening in December 2016, while J.Z. was outside his house, three or four of Barron's dogs ran onto J.Z.'s property and barked and snarled at him. J.Z. saw Barron nearby, and told him to get them off his property or he would pepper spray them. Barron did not respond, so J.Z. returned to his house and retrieved his pepper spray. When he came back outside, Barron and the dogs were in J.Z.'s driveway. After J.Z. tried to spray Barron's dogs, Barron "hauled off and slammed" J.Z. in the head with his large flashlight, knocking him down. Barron left after J.Z. got up and sprayed Barron's face with his pepper spray.
Bleeding, J.Z. went into his house and told his wife what had happened. She called 911 and related what J.Z. told her, said that J.Z. was bleeding, and told the operator about their history with Barron.
A responding officer observed blood droplets starting about 10 feet into J.Z.'s driveway and leading to his front door. He also observed a spray of what he believed was pepper spray going from the driveway area where the blood droplets started out to the street. The officer spoke with both J.Z. and Barron about the incident. J.Z., who had an approximately two-inch gash to his head revealing some of his skull, reported that after Barron's dogs charged at him and he retrieved his pepper spray, Barron was standing near his driveway. J.Z. told the officer that he told Barron at the time that his dogs were innocent but if they came after him he would spray them, at which time Barron came after him with his flashlight, hitting him in the head. Barron was red-faced and teary- eyed due to the pepper spray, in the officer's opinion. Barron told the officer J.Z. had pepper sprayed him then he "went after [J.Z.] and hit him with the, with the, um, my flashlight." When asked whether he swung the flashlight at J.Z., Barron replied, "I don't know. I just swung at him." When the officer asked Barron why J.Z. had a large gash on his forehead and was bleeding profusely, Barron replied, "Well, because I hit with a fuckin' . . . my flashlight." The jury watched the officer's body camera video recording of the interviews.
J.Z. received two layers of sutures for a 1.37-inch laceration to his forehead, and treatment for atrial flutter caused by the trauma he experienced.
Barron testified in his defense in part that he was standing on his own driveway when J.Z. pepper sprayed him in the face. Barron testified that he was so shocked and stunned by being blinded by the spray, he put his arms up to protect his face and rushed J.Z., crashing into him and making contact with the flashlight without swinging or intending to hit him.
DISCUSSION
I. Claim of Prosecutorial Misconduct as to Standard of Proof
Barron contends that throughout trial, starting in voir dire and ending in final argument, the prosecutor misinformed the jury as to the reasonable doubt standard of proof, telling them that "reasonable doubt meant merely what is the reasonable take on the evidence." He maintains the prosecutor argued the " 'jigsaw' puzzle theory of reasonable doubt" held to misrepresent the applicable standard of proof. (See e.g., People v. Centeno, supra, 60 Cal.4th at pp. 668-670; People v. Otero (2012) 210 Cal.App.4th 865, 869-872; People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1264-1266.) Barron acknowledges his counsel did not object to the prosecutor's statements, and contends his counsel was prejudicially ineffective by failing to do so. Normally, counsel's failure to object would forfeit Barron's claim of misconduct because a defense objection, if sustained, would have given the court an opportunity to correct any misunderstanding of the burden of proof. (People v. Friend (2009) 47 Cal.4th 1, 28; People v. Williams (2017) 7 Cal.App.5th 644, 686; see People v. Dalton (2019) 7 Cal.5th 166, 251 [stating requirement for timely objection on grounds of misconduct].) We nevertheless address the contention to resolve the ineffective assistance claim. A. Legal Principles
" ' "[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements [citation]." [Citation.] Improper comments violate the federal Constitution when they constitute a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citation.] Improper comments falling short of this test nevertheless constitute misconduct under state law if they involve use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] To establish misconduct, defendant need not show that the prosecutor acted in bad faith. [Citation.]' However, '[w]hen attacking the prosecutor's remarks to the jury, the defendant must show that, "[i]n the context of the whole argument and the instructions" [citation], there was "a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner." ' " (People v. Bell (2019) 7 Cal.5th 70, 111.) On the other hand, "[i]f the challenged comments, viewed in context, 'would have been taken by a juror to state or imply nothing harmful, [then] they obviously cannot be deemed objectionable.' " (People v. Cortez (2016) 63 Cal.4th 101, 130.)
In People v. Bell, the California Supreme Court pointed out that "case law is replete with innovative but ill-fated attempts to explain the reasonable doubt standard" and that the court thus has "generally discouraged prosecutors from using colorful analogies or displays on this topic." (People v. Bell, supra, 7 Cal.5th at p. 111.) For example, in People v. Centeno, supra, 60 Cal.4th 659, the prosecutor in a child sex assault case used a projector to display to the jury an image depicting the outline of the state of California, then gave the jury a hypothetical in which the trial issue was to identify the state with incomplete information from witnesses. (Id. at pp. 665-666.) The prosecutor in part argued the jury's decision "has to be based on reason. It has to be a reasonable account" and the law required them to look "at the entire picture, not one piece of evidence, not one witness . . . ." (Id. at p. 666.) The prosecutor continued: " 'Is it reasonable to believe that a shy, scared child who can't even name the body parts made up an embarrassing, humiliating sexual abuse, came and testified to this in a room full of strangers or the defendant abused Jane Doe. That is what is reasonable, that he abused her. [¶] Is it reasonable to believe that Jane Doe is lying to set-up the defendant for no reason or is the defendant guilty?' . . . 'Is it reasonable to believe that there is an innocent explanation for a grown man laying [sic] on a seven year old? No, that is not reasonable. Is it reasonable to believe that there is an innocent explanation for the defendant taking his penis out of his pants when he's on top of a seven-year-old child? No, that is not reasonable. Is it reasonable to believe that the defendant is being set-up in what is really a very unsophisticated conspiracy led by an officer who has never met the defendant or he['s] good for it? That is what is reasonable. He's good for it.' " (Ibid.)
The court in Centeno held the outline image was improper as "unrelated to the facts of the case" (People v. Centeno, supra, 60 Cal.4th at p. 669) and a flawed method of demonstrating the process of proving guilt beyond a reasonable doubt: "These types of images necessarily draw on the jurors' own knowledge rather than evidence presented at trial. They are immediately recognizable and irrefutable. Additionally, such demonstrations trivialize the deliberative process, essentially turning it into a game that encourages the jurors to guess or jump to a conclusion." (Id. at p. 667.) It also held the image was misleading by failing to accurately reflect the evidence in the case before the jury, "which was far from definitive." (Id. at p. 670.) Finally, the court criticized the prosecutor's repeated use of the word "reasonable" during her closing argument, which "strongly implied that the People's burden was met if its theory was 'reasonable' in light of the facts supporting it." (Ibid.) It stated it is "not sufficient that the jury simply believe that a conclusion is reasonable," rather, the jury "must be convinced that all necessary facts have been proven beyond a reasonable doubt. [Citation.] The prosecutor, however, left the jury with the impression that so long as her interpretation of the evidence was reasonable, the People had met their burden. The failure of the prosecutor's reasoning is manifest." (Id. at p. 672.)
In People v. Bell, supra, 7 Cal.5th 70, the court addressed a defendant's claim that a prosecutor similarly trivialized the reasonable doubt standard during closing argument. The prosecutor had referred to the reasonable doubt jury instruction (CALJIC No. 2.90), then said: " 'You have got an instruction about reasonable doubt. . . . Reasonable doubt is not all possible doubt. It has to be based on reason. [¶] If I take this quarter and flip it in the air over a hard surface, it's possible it could land on heads or it's possible it could land on tails. It's reasonable either way. It's reasonable because it's based on physics, logic and reason. [¶] But if I flip this coin up in the air and expected it to land smack dab on its side and stay standing still, is it possible? Sure, it's possible. Anything is possible, but is it reasonable?' " (Id. at p. 110.)
Though the Bell court observed the coin-toss analogy was "somewhat problematic because it is commonly linked to the concept of probability and 50-50 odds" (People v. Bell, supra, 7 Cal.5th at p. 111), it concluded it was not reasonably likely the jury would have misunderstood the argument to mean it could decide the case by flipping a coin. (Ibid.) The court emphasized it would "not ' " 'lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements." ' " (Id. at p. 111.) It explained that the prosecutor's argument did not trivialize or misstate the reasonable doubt standard: "Here, the prosecutor was attempting to explain the meaning of 'reasonable.' The jury had been properly instructed on the reasonable doubt standard, and the prosecutor's argument specifically brought their attention to this instruction. [Citation.] In contrast to some other cases, the prosecutor here did not attempt to quantify reasonable doubt or analogize it to everyday decisions like whether to change lanes in traffic. [Citation.] He gave jurors an example of a possible or imaginary, but unlikely, occurrence. The statute defining the burden of proof expressly states that a 'reasonable' doubt is not a mere ' "possible" ' or ' "imaginary" ' doubt. [Citations.] The prosecutor's argument did not undermine this standard." (Id. at pp. 111-112.) B. The Prosecutor's Statements and Arguments in This Case
In his challenge, Barron references some of the prosecutor's statements and arguments, but has isolated them from their context. We set them out more fully below.
During voir dire, the prosecutor asked about some of the jurors' ability to view testimony and judge credibility, and acknowledged another juror had stated they would "tend to go with what is most logical." The following colloquy then took place:
"[Prosecutor]: . . . In the jury instructions you're going to hear the word reasonable a lot. Because a lot of what the law is based off of is what's reasonable and what's logical, what make sense [sic]. Does that kind of jive with what your thinking is?
"[Prospective juror]: Yes.
"[Prosecutor]: Do you agree that there is a difference between the words reasonable and possible?
"[Prospective juror]: Yes.
"[Prosecutor]: Can you maybe give a little bit more emphasis on what your thinking is on that?
"[Prospective juror]: Well, something—I guess they are pretty close. Something can be reasonable but still be impossible. Like could be certain circumstances, there could a reasonable explanation but not possible to do the certain other facts that are involved.
"[Prosecutor]: Okay. So it would be depending on the totality of the circumstances?
"[Prospective juror]: Yes.
"[Prosecutor]: The other facts that are involved?
"[Prospective juror]: Yes."
The prosecutor asked if anyone disagreed that the words "reasonable" and "possible" had two different interpretations or meanings, then went on:
"[Prosecutor]: My burden of proof is beyond a reasonable doubt. And I'm sure you've heard that before, right? Whether be [sic] in the movies?
"[Prospective juror]: Yes.
"[Prosecutor]: And when the Judge reads you instructions, he is going to say, beyond a reasonable doubt is an abiding conviction that the charge is true. I don't have to eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. Do you have any distinctions, personally, between the words reasonable and possible?
"[Prospective juror]: I guess, I'm not sure.
"[Prosecutor]: Okay. . . . This is kind of a silly example, so I'm just preparing you ahead of time. Does anybody in here like basketball? Okay, perfect. You do, so I'll stick with you. So Juror Number 4, I'm five-foot-three without my heels on. And I tell you, I mean you know what you know about me just right now. I did play basketball. I was a guard. And at one point I was pretty good. I'm not so good anymore. If I tell [you] at one point I could dunk, is that reasonable, given what you know about me? Do you think?
"[Prospective juror]: There is some shooting guards that can dunk. But five-four is probably not.
"[Prosecutor]: Yeah, I'm not even five-four. I'm five-three in the morning. But is it possible?
"[Prospective juror]: Sure.
"[Prosecutor]: Sure. See you were a lot more easy to say, sure, it's possible. Right? That's possible. But is it reasonable? Does that make logical sense in your minds. You were more hesitant. Do you see where there is sort of a distinction?
"[Prospective juror]: Uh-huh.
"[Prosecutor]: Would everybody kind of agree with that? It is a silly example, I agree with you. But it kind of gives the point that there is all sorts of things that are possible in this world. Would you agree Juror Number 1?
"[Prospective juror]: Yes.
"[Prosecutor]: But not necessarily the, it is reasonable but it makes sense?
"[Prospective juror]: Correct.
"[Prosecutor]: Okay. So would you hold me to an even higher standard than beyond a reasonable doubt? Would you make me go beyond all possible or imaginary doubt?
"[Prospective juror]: If you were standing next to someone who [is] six-two, I would say it's more reasonable for that person to be able to dunk, than you.
"[Prosecutor]: Sure. That makes sense. I guess
"[Prospective juror]: It is possible for you to dunk as well.
"[Prosecutor]: Yeah, I didn't make my question clear. So my burden of proof is beyond a reasonable doubt. I guess my question is, will you follow the law and only make—my burden is a high burden, we don't diminish that in any way. But would you make it even further, like I have to go beyond all possible or imaginary doubt in your mind in order for you to return a conviction?
"[Prospective juror]: I don't quite understand.
"[Prosecutor]: Okay. Sure.
"[Prospective juror]: If there is reasonable doubt then I would—beyond a reasonable doubt then I would give that verdict.
"[Prosecutor]: Okay. Nobody is telling you have to choose one way or the other right now. I'll go ahead—I understand."
The prosecutor proceeded with her voir dire, then concluded in the following exchange:
"[Prosecutor]: . . . [W]ould you hold me to that standard of beyond a reasonable doubt and not go beyond to make me prove possible, imaginary, eliminating all types of doubt?
"[Prospective juror]: No. Like the first thing you said.
"[Prosecutor]: Beyond a reasonable doubt?
"[Prospective juror]: Yes.
"[Prosecutor]: Okay. Would you everybody here agree that you will follow the law as it's written? Yes. Okay. Thank you."
At the end of her opening statement, the prosecutor said: "Now, ladies and gentlemen, at the end of this case I'm not going [to] stand up here or throughout this case ask you to find that Mr. Barron is some horrible guy or something like that. This case is merely about accountability. And the question is, did he hit [J.Z.] over the head with the flashlight. And perhaps the defense is going to say it was something of the matter self-defense [sic]. But when you are listening to the evidence and watching the witnesses testify, I urge you to be critical of what they are saying. Assess what makes sense, what is logical, what's reasonable, and then come to your conclusion. And at the end of this case I'm going to ask you to hold the defendant accountable for his actions and find him guilty of the single charge that is in the information. Thank you."
Following the close of evidence, the court instructed the jury as to the presumption of innocence and reasonable doubt under CALCRIM No. 220, telling the jury in part: "Whenever I tell you that the People must prove something, I mean they must prove it beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal you [sic] must find him not guilty."
During her closing argument, the prosecutor emphasized to the jury that the incident was not the fault of the dogs, but she stated it was not considerate and did not make sense to let them out into the front yard, knowing the neighbors would be bothered by that. She continued: "But as I said before, it's not a popularity contest. It is about what happened and what the evidence actually shows. And the evidence does show that the defendant purposefully hit Mr. [Z] over the head with that flashlight. And it was on Mr. [Z's] property, in a place where Mr. Barron did not have a right to be. And Mr. [Z] reacted by spraying him. Beyond a reasonable doubt. This isn't what could speculate [sic], possibly, may be true. It is what is reasonable, logical. Hold Mr. Barron accountable and find him guilty." C. Analysis
We conclude the prosecutor did not misstate or mischaracterize the reasonable doubt standard of proof in the remarks Barron challenges. She did not use a diagram, nor did she apply a "jigsaw puzzle"-like approach to the question or suggest in any of the remarks recounted above that the reasonable doubt standard could be met with a few pieces of evidence from which the jury could infer Barron was guilty. She did not suggest the People met their burden as long as the prosecutor's interpretation of the evidence was reasonable, or that a "reasonable" account of the evidence satisfies the People's burden. (Compare, People v. Centeno, supra, 60 Cal.4th at pp. 671-674, 676-677.) Her remarks did not invite the jury "to guess or jump to a conclusion." (People v. Katzenberger, supra, 178 Cal.App.4th at p. 1267.) She did not "attempt to quantify reasonable doubt or analogize it to everyday decisions like whether to change lanes in traffic." (People v. Bell, supra, 7 Cal.5th at p. 111.) As in Bell, the court had properly instructed the jury on the reasonable doubt standard and the prosecutor specifically referred back to that instruction. (Ibid.) The jury was provided with copies of the instructions for its deliberations. The basketball dunking example the prosecutor gave in voir dire, and the challenged statements in her opening statement and closing argument, in context, sought to explain the concept of reasonableness like the prosecutor's statements in Bell. (Ibid.) That is, the prosecutor "gave jurors an example of a possible or imaginary, but unlikely, occurrence" so as to help them understand the statutory requirement that "a 'reasonable' doubt is not a mere ' "possible" ' or ' "imaginary" ' doubt." (Id. at pp. 111-112, citing § 1096.)
Even if there were some error, we disagree with Barron that the case against him was close like Centeno, in which the sole primary witness, the victim, denied her previous story and refused to answer questions, raising serious credibility issues. (Centeno, supra, 60 Cal.4th at pp. 662-664.) J.Z. consistently reported the incident to his wife and responding officers. The physical evidence of blood drops and pepper spray corroborated J.Z.'s account. When asked why J.Z. had a large gash on his forehead, Barron admitted to officers he hit J.Z. with his flashlight. Thus, we may presume the jury understood and followed the court's instructions (People v. Dalton, supra, 7 Cal.5th at p. 336), and " 'treat[ed] the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.' " (People v. Potts (2019) 6 Cal.5th 1012, 1037.)
Our review of the prosecutor's remarks reveals no mischaracterization of the standard of proof and no misconduct that would have misled the jury to convict Barron under a standard less than proof beyond a reasonable doubt. Because the prosecutor did not mischaracterize the standard of proof, defense counsel was not remiss in failing to object. "Failure to raise a meritless objection is not ineffective assistance of counsel." (People v. Bradley (2012) 208 Cal.App.4th 64, 90; see also People v. Farnam (2002) 28 Cal.4th 107, 186, fn. 36; accord, People v. Thompson (2010) 49 Cal.4th 79, 122 [counsel is not ineffective for failing to make frivolous or futile motions].)
II. Claims of Evidentiary Error
Barron contends the trial court made a series of evidentiary errors favoring the prosecution that denied him his due process right to a fair trial. We review such claims under the deferential abuse of discretion standard. (People v. Clark (2016) 63 Cal.4th 522, 572.) Under this standard, we will not reverse " 'unless " 'the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " ' " (Ibid.) Further, we assess the trial court's ruling, not its reasoning, and affirm if it is correct on any ground. (People v. Brooks (2017) 3 Cal.5th 1, 39.) " ' "No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for the wrong reason. If right upon any theory of law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." ' " (People v. Zapien (1993) 4 Cal.4th 929, 976.) A. Admission of Alleged Hearsay Statements
1. Homeowner's Association Complaint and Resolution
Barron contends the trial court erred by permitting J.Z. to testify over defense counsel's hearsay objection that he had complained to his homeowner's association about Barron's dogs, the association had conducted a hearing, and the result of the hearing was that J.Z. "was told that [Barron] was informed that he needed to keep his dogs on a leash. And if he didn't, he would be fined a hundred dollars for every incident." According to Barron, the statement from the association was "pure hearsay" and if offered for a nonhearsay purpose, was not relevant and thus inadmissible. He also argues none of the jury instructions prevented the jury from using the evidence for the truth of the matter asserted: that he had been warned by the association about walking his dogs off leash, and thus evidence of the warning violated his Fourteenth Amendment confrontation rights by introducing testimonial hearsay evidence, a violation of Crawford v. Washington (2004) 541 U.S. 36.
The People respond that the evidence was properly admitted for a nonhearsay purpose of showing its effect on the hearer; as the prosecutor argued, for "this witness's [per]spective." They point out that after this exchange, in response to the prosecutor's questions, J.Z. confirmed the association's decision took place before the incident. J.Z. related that Barron's attitude to him about putting his dogs on a leash "ranged from being very cavalier to hostile," the latter involving belligerence and cussing, and that their relationship had become tense or strained over the years. The People argue that their theory—reflected in the court's jury instructions—was that Barron was trespassing on J.Z.'s property, and that J.Z. had the right to defend it, thus J.Z.'s knowledge and belief about Barron's previous conduct regarding his dogs was relevant to the amount of force a reasonable person would have used in the same situation.
The court instructed the jury with CALCRIM No. 3475, as follows: "The owner or lawful occupant of a home or property may request that a trespasser leave the home or property. If the trespasser does not leave within a reasonable time, and it would appear to a reasonable person that the trespasser poses a threat to the home, the property, owner or occupants the owner or lawful occupant may use reasonable force to make the trespasser leave. Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to make the trespasser leave. [¶] If the trespasser resists, the owner or lawful occupant may increase the amount of force he or she uses in proportion to the force used by the trespasser and the threat the trespasser poses to the property. [¶] When deciding whether Mr. [Z] used reasonable force, consider all the circumstances as they were known to and appeared to Mr. [Z]. And consider what a reasonable person in a similar situation with similar knowledge would have believed. If Mr. [Z's] beliefs were reasonable, the danger does not need to have actually existed."
We conclude the trial court did not abuse its discretion by permitting the testimony. Evidence is relevant if it has any tendency in reason to prove a disputed material fact. (Evid. Code, § 210.) " 'Hearsay evidence,' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated" (Evid. Code, § 1200, subd. (a)), and "[e]xcept as provided by law, hearsay evidence is inadmissible." (Evid. Code, § 1200, subd. (b).) But out-of-court statements may be admitted for a nonhearsay purpose—i.e., to establish something other than the truth of the matter asserted in the statement. (People v. Hill (1992) 3 Cal.4th 959, 987, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Thus, a statement that is offered to help explain a person's "state of mind and conduct" and is not offered for the truth of the matter asserted, is not hearsay. (Hill, at p. 987; accord, People v. Bell, supra, 7 Cal.5th at p. 100; People v. Livingston (2012) 53 Cal.4th 1145, 1162.)
The Supreme Court has explained this principle: " ' "[O]ne important category of nonhearsay evidence [is] evidence of a declarant's statement that is offered to prove that the statement imparted certain information to the hearer and that the hearer, believing such information to be true, acted in conformity with that belief. The statement is not hearsay, since it is the hearer's reaction to the statement that is the relevant fact sought to be proved, not the truth of the matter asserted in the statement." ' " (People v. Livingston, supra, 53 Cal.4th at p. 1162; People v. Bell, supra, 7 Cal.5th at p. 100; see also People v. Fuiava (2012) 53 Cal.4th 622, 689 [court properly admitted testimony that witness heard someone say defendant " 'did it' " for the nonhearsay purpose of establishing witness's state of mind]; People v. Samuels (2005) 36 Cal.4th 96, 122 [court properly admitted out-of-court statement to explain witness's subsequent actions].) However, "[t]he nonhearsay purpose must be relevant for the statement to be admissible for that purpose." (Livingston, 53 Cal.4th at p. 1162.)
Here, as the People point out, an issue at trial was whether J.Z. had a right to eject Barron from his property in defense of it, and the amount of force reasonably necessary to do so. In deciding this issue, the jury was entitled to consider "all the circumstances as they were known . . . to [J.Z.]" (CALCRIM No. 3475), including "his knowledge of the character and previous activities of the [trespasser] . . . ." (See, e.g., Boyer v. Waples (1962) 206 Cal.App.2d 725, 730.) J.Z.'s knowledge at the time of the incident that Barron was acting in disregard of the prior association warning to keep his dogs on leashes was indeed relevant, and the challenged evidence was properly admitted for the nonhearsay purposes of proving J.Z.'s knowledge and actions in conformity with that knowledge. As for Barron's confrontation clause argument, there was no improper introduction of hearsay offered for its truth, and Barron has not explained how the association's statement was testimonial, thus we reject Barron's confrontation argument on that basis. (People v. Bell, supra, 7 Cal.5th at p. 100 [" 'Out-of-court statements that are not offered for their truth are not hearsay under California law [citations], nor do they run afoul of the confrontation clause' "]; accord, People v. Brown (2017) 14 Cal.App.5th 320, 331-332 [failure to show how statements are testimonial defeats confrontation clause claim]; People v. Clark, supra, 63 Cal.4th at pp. 563-564 & fn. 37 [same].)
We acknowledge that at the time the testimony was elicited, the court did not give, nor did Barron's counsel request, an instruction limiting the use of this testimony for a nonhearsay purpose. Barron argues that the general instruction given by the trial court concerning evidence admitted for limited purposes did not identify this evidence and did not prevent the jury from using it for the truth of the matter. He maintains the evidence caused jurors " 'to defer to [alleged] findings and determinations relevant to credibility made by an authoritative, professional factfinder rather than determine those issues for themselves.' " Barron's counsel's failure to request a limiting instruction as to this particular evidence forfeited any contention related to the absence of such an instruction. (People v. Sanchez (2016) 63 Cal.4th 411, 460 [trial court has no sua sponte duty to give a limiting instruction; argument not cognizable on appeal where defendant did not request it]; People v. Manning (2008) 165 Cal.App.4th 870, 880.)
Considering the matter as a claim of ineffective assistance, we reject it. "The test for ineffective assistance of counsel is a demanding one." (People v. Acosta (2018) 28 Cal.App.5th 701, 706.) To establish ineffective assistance, a defendant has the burden to show his counsel's performance was deficient, and that he or she suffered prejudice as a result. (People v. Mikel (2016) 2 Cal.5th 181, 198; Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Acosta, at p. 706.) The claim fails in the absence of either one of these components. (People v. Holt (1997) 15 Cal.4th 619, 703.) To establish prejudice, "defendant bears the burden to show a reasonable probability that, but for his trial counsel's errors, the result would have been different. [Citation.] A reasonable probability is one ' "sufficient to undermine confidence in the outcome." ' " (People v. Olivas (2016) 248 Cal.App.4th 758, 770; People v. Woodruff (2018) 5 Cal.5th 697, 761-762.)
Here, J.Z.'s testimony concerning the association complaint and resolution was a small and fleeting part of an abundant amount of evidence, including by Barron's own trial testimony, of Barron's guilt. Barron testified he let his dogs outside without leashes before the incident in question. He admitted that years before the incident his dogs ran down an embankment to J.Z.'s driveway, resulting in a physical altercation between him and J.Z. He testified that he let his dogs outside his front yard off leash on the night in question. Jurors watched the officer's recorded interview where Barron admitted hitting J.Z. with his flashlight. The officer testified at trial that when he asked Barron if he swung the flashlight at J.Z., Barron answered, "I don't know. I just swung at him." Barron's testimony was that he did not swing at or purposefully hit J.Z. He described "rush[ing]" at J.Z. after J.Z. pepper sprayed him and "crash[ing] into him," causing J.Z. to get hit. We conclude that the inculpatory evidence was overwhelming, and Barron's defense case was relatively weak, such that there is no reasonable probability that had the association evidence been omitted or had a limiting instruction been given, the result would have been different.
2. Evidence of 911 Taped Call by J.Z.'s Wife
Barron contends the trial court erred by permitting the jury to hear J.Z.'s wife's 911 taped call over his counsel's hearsay objection asserted during pretrial motions on the issue. He maintains neither the People nor the court identified a nonhearsay purpose for the call, which he argues was full of pejorative and prejudicial remarks as well as inflammatory recountings of past events unrelated to reporting J.Z.'s injury. The People maintain that J.Z.'s statements to his wife were not hearsay but were prior consistent statements, and her statements to the 911 operator were excited utterances, an exception to the hearsay rule.
In part, J.Z.'s wife told the operator: "[T]he dogs were out which they have been before and the dogs have gone after our grandchild and we've filed complaints and we've done our homeowner's association [sic] and anyway so the dogs were out and [J.Z.] said to him your dogs are innocent but if they come after me I'm going to spray them. He had pepper spray in his hand because I don't think it's safe to walk in our neighborhood with [Barron's] four or five big dogs." In response to the operator's question as to whether there was a discussion or argument about the dogs, she said, " Oh yeah, it's always about the dogs. He just doesn't control them. He's just an awful person. And he was in our driveway. When he hit [J.Z.]. And we're in a gated community so supposedly we own from the center of the road, you know . . . ." The operator asked if Barron had "any mental problems or the use of drugs," to which J.Z.'s wife replied: "Uh no but he has been somewhat inebriated at times and cussed [J.Z.] out" and also said, "Oh he called [J.Z.] a fuck head and then he hit him."
We need not decide whether the challenged evidence constituted inadmissible hearsay, because we conclude that any error would have been harmless under either the state "reasonable probability" or the federal "beyond a reasonable doubt" standard of prejudice. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) Much of the commentary on the call (see footnote 6, ante) was repeated by J.Z.'s wife in her trial testimony (the fact Barron's dogs came after her grandchild, Barron's assertedly calling J.Z. a "fucker" or "dick head," and her fear of Barron's dogs). J.Z. testified about the association complaint as recounted above. And, as we have already concluded, the case against Barron was not a close credibility contest as he maintains. In sum, under either standard, we conclude the result would not have been different had the court excluded evidence of the 911 call.
III. Additional Claims of Prosecutor Misconduct in Questioning and Argument
A. Question About Barron's Temper
Shortly after the prosecutor began her cross-examination, the following exchange occurred:
"[Prosecutor:] . . . Do you have a temper, Mr. Barron?
"[Barron:] I can get angry. I don't know that [I] understand your question.
"[Prosecutor:] Well, do you recall an instance that took place over a parking spot when your business was at [prosecutor names business]?
"[Barron:] No.
"[Prosecutor:] You don't recall yelling at a woman who parked in your parking space for [business], swearing and hitting her car?
"[Barron:] Absolutely not.
"[Prosecutor:] Okay. [J.W.] was the president of [business]?
"[Barron:] I know [J.W.], yes.
"[Prosecutor:] Okay. So [she] wouldn't have witnessed that?
"[Barron:] I have no idea what she witnessed. But I didn't yell and scream or hit somebody's car. No way."
The prosecutor also asked Barron's wife about the alleged incident. Barron's wife told the prosecutor that she "would find that incident highly unlikely," that if true, she would want to know what led up to it, and it was "the first time I've ever heard of this."
Barron argues these exchanges were prejudicial; that the prosecutor's questions were not supported by any independent evidence and elicited mere innuendo that portrayed him to the jury as an ill-tempered bully. It is true that statements of facts not in evidence by a prosecuting attorney may constitute misconduct. (See People v. Rivera (2019) 7 Cal.5th 306, 382 [addressing statements made during closing argument].) However, Barron's counsel did not object to these questions or ask the court for an admonition, which in our view could have cured the harm. The contention of misconduct is forfeited. (Accord, Rivera, at pp. 381-382 ["Where the defendant does not contemporaneously object to alleged misconduct, we generally decline to review the claim on appeal unless a timely admonition could not have cured the harm"; defendant's failure to object to alleged misconduct until after closing argument was untimely and forfeited].)
In any event, as we have explained, the admitted evidence against Barron was quite strong, and the questioning on this topic was relatively short. Also, the court instructed the jury that evidence was the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else the court told it to consider as evidence, but "[n]othing that the attorneys say is evidence." Under the circumstances, we conclude any misconduct in suggesting facts not in evidence would be harmless under any standard of prejudice. (Accord, People v. Rivera, supra, 7 Cal.5th at p. 382.) B. Argument Concerning Barron's Possible Intoxication
Asserting "[t]here was not a scintilla of evidence of intoxication," Barron further contends the prosecutor engaged in misconduct in closing argument when she suggested that he might have been "more intoxicated than he claims he was that night" and "[m]aybe [his] memory is a little bit off."
More fully, the prosecutor stated: "Mr. Barron's [story] on the other hand, does not match. It does not make sense. And the only reason to not tell the truth about what happened, is because you[] are hiding something. It's because maybe you did something wrong. Or I don't know if Mr. Barron maybe was actually more intoxicated than he claims he was that night. Maybe the memory is a little bit off. When you saw the officer questioning him on the body camera, it was kind of like pulling teeth to get him to explain what happened. Were [you] pepper sprayed? No. You weren't? Okay. What is the purpose of that? Like, that automatic I'm not going to tell you what happened [sic]. And then, well, he just came out and started spraying me from the edge of the driveway. And then, okay, any conversation? I get it. Initially, somebody might say, no, we didn't have a conversation. But after the officer has asked you this three or four times, well, what led up to it? What happened? Tell me what happened? Eventually you say, okay, this is what happened. And you would start to explain it. But that's not what Mr. Barron did. And what he testified to today was actually quite different than what he told [ ] the officer."
We reach the same conclusion as above concerning this claim of misconduct. Barron's counsel did not lodge an objection, so the claim is forfeited. (Accord, People v. Rivera, supra, 7 Cal.5th at pp. 381-382.) In any event, Barron testified he might have had a glass of wine before the incident; so the prosecutor's remark was a fair comment on the evidence falling within the wide latitude permitted by prosecutors in closing argument. (Accord, People v. Peoples (2016) 62 Cal.4th 718, 802; People v. Cordova (2015) 62 Cal.4th 104, 137.) Barron makes a cursory claim of ineffective assistance of his counsel for failing to object, but we would decline to view defense counsel's silence as ineffective assistance as it is reasonable to conclude counsel either did not perceive the assertion as misconduct, or he would not as a tactical matter want to draw attention to the prosecutor's assertion about possible intoxication. (See People v. Woodruff, supra, 5 Cal.5th at p. 746 [reviewing court will reverse a conviction based on ineffective assistance of counsel on direct appeal only if there is affirmative evidence that counsel had no rational tactical purpose for his act or omission].)
IV. Claim of Improper Instruction on Defense of Property
Because part of the People's theory was that J.Z. was entitled to defend his property, the court instructed the jury with the self-defense instruction (CALCRIM No. 3470), which the parties modified in various ways including to add the phrase: "If you find that the incident that is alleged began on Mr. [Z's] property, please consider CALCRIM instructions 3475 and 3476." CALCRIM Nos. 3475 and 3476 relate to the defense of property, which the court read to the jury in part as follows: "The owner, or lawful occupant of a home or property may request that a trespasser leave the home or property. If the trespasser does not leave within a reasonable time, and it would appear to a reasonable person that the trespasser poses a threat to the home, the property, owner or occupant, the owner or lawful occupant may use reasonable force to make the trespasser leave. [¶] . . . [¶] When deciding whether Mr. [Z] used reasonable force, consider all the circumstances as they were known and appeared to Mr. [Z]. . . . If Mr. [Z's] beliefs were reasonable, the danger does not need to have actually existed. [¶] . . . The owner or possessor of real or personal property may use reasonable force to protect that property from imminent harm. Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to protect the property from an imminent harm. [¶] When deciding whether Mr. [Z] used reasonable force, consider all the circumstances as they were known to and appeared to Mr. [Z]. . . . If Mr. [Z's] beliefs were reasonable, the danger does not need to have actually existed."
Barron contends the trial court erred by giving the jury over his counsel's objections the defense of property instruction because it was tailored to benefit only J.Z., and not also him with respect to his property, namely, his dogs. He maintains there was substantial evidence to support the instruction as to his dogs from the effects of J.Z.'s use of pepper spray. He also contends the court's instruction improperly permitted the jury to consider the middle of the street as J.Z.'s property that J.Z. was entitled to defend, an "invalid theory" that was not harmless.
We reject Barron's first contention. Even if his counsel's objections to the defense of property instruction were consistent with this claim, his counsel did not propose a modification to include Barron or his dogs in the defense of property instructions, but acceded to other modifications. While a defendant may raise for the first time on appeal instructional error that affects his substantial rights, " '[a] party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial.' " (People v. Buenrostro (2018) 6 Cal.5th 367, 428.) Here, Barron's claims as to the defects in the defense of property instructions are forfeited because they challenge the instructions as incomplete, and he was obligated to request clarifying language but failed to do so.
Barron asserts his counsel "objected to these instructions as a whole." But the record is unclear as to the basis for Barron's counsel's objection. At the cited portions of the record, his counsel was referring to the self-defense instruction, and whether a person would have the right to enter another person's property to extinguish a threat. Counsel explained: "If Mr. Barron is on the street and he is peppered sprayed, he has right to close that extinguish that threat [sic], regardless [if] Mr. [Z] is on his street or on his driveway. I think what we're doing is add kind of like special instruction [sic], which I'm hesitant to do. To say he can go up to the boundary to extinguish that threat, but then not go into it. That goes to further instruction later on that I think are kind of misleading as they are proposed." He later suggested that if the parties included CALCRIM No. 3475 "then we don't necessarily need to modify or do any type of special changes to [CALCRIM No. 3470 as to self-defense]." When the parties got to CALCRIM Nos. 3475 and 3476, Barron's counsel merely stated he felt it was a special instruction, and asked to leave the last paragraph but change the word "defendant" in the instruction to "Mr. [Z]." The prosecutor and court agreed. That concluded counsel's input on the self-defense and defense of property instructions.
There is no merit to Barron's second contention regarding the instructions being based on an "invalid theory," namely, that J.Z. was entitled to pepper spray Barron and his dogs if they were standing in the middle of the street. Barron asserts, without record citation, that the street was subject to an easement for the public, and "[t]he jury was given two theories of two crimes of trespass: one on the [Z] driveway and one invalid theory of [Barron] being in the middle of the street." He argues "[t]his Court has no way of knowing whether the jury accepted [J.Z.'s] version that he may have fired at the dogs when they were in 'his half' of the street (as corroborated by the pepper spray in the street), or his trial testimony that they were in his driveway at the time."
The People respond that no such easement evidence was admitted into evidence. But the existence of any such easement, had such evidence been admitted, would not have affected the outcome in any event because the People did not present the jury with the theory that J.Z. defended his property while Barron and his dogs were standing in the street. J.Z.'s testimony was that Barron and his dogs came down an embankment onto J.Z.'s property and were 15 to 20 feet into J.Z.'s driveway when J.Z. tried to pepper spray them. The prosecutor made clear during the jury instruction conference that her theory was that the incident began on J.Z.'s property, requiring Barron to retreat. This was the theory she argued to the jury as well, that "by the time [J.Z.] came back out [with his pepper spray], Mr. Barron has now moved to his driveway and the dogs are kind of more in this region . . . the left corner of the driveway. And Mr. Barron is in Mr. [Z's] driveway. He tells him . . . I'm going to spray them. I'm going to spray your dogs. Get them off of my property." She pointed out there was no pepper spray in the middle of the street or in Barron's driveway. The officer's testimony was that the pepper spray marks started five to ten feet into J.Z.'s driveway and went out toward J.Z.'s side of the street; they did not extend to Barron's driveway. Contrary to Barron's argument, the officer did not state or suggest J.Z. owned that part of the street or the street was his property. In short, the jury was not faced with an assertedly legally invalid theory exacerbated or promoted by the defense of property instructions. There was no error. Our conclusion that the easement evidence would have been inconsequential on this record defeats Barron's claim of ineffective assistance for his counsel's failure to introduce the homeowner's association rules pertaining to owner easements over the streets.
During the jury instruction conference, Barron's counsel argued that if Barron was on the street and was pepper-sprayed from J.Z.'s property, he had the right to enter J.Z.'s property to extinguish that threat. The prosecutor made clear that she did not disagree with that proposition, but explained it was not her theory: "My theory [is] this all began on Mr. [Z]'s property. Mr. [Z's] testimony was that Mr. Barron was in his driveway. The dogs were on his property when this all began. So if the jury finds that is the factual scenario, then Mr. Barron would . . . actually have to retreat."
V. Claims of Constitutionally Ineffective Assistance of Counsel
Barron advances several claims that his counsel provided constitutionally ineffective assistance on matters on which there was no tactical reason or justification, prejudicing his fair trial rights. Having in mind the legal principles applicable to such claims summarized above (part II(A)(1), ante), we address them in turn. A. Counsel's Failure to Call Corroborating Witnesses
Barron contends his counsel was ineffective for failing to call several witnesses to refute the prosecution's "theme" that Barron "was an ill-tempered, foul[-]mouthed bully who would routinely allow his dogs to roam unleashed and bother the neighbors." Notably, Barron does not cite to portions of the record to support his assertion about the People's asserted character attack. He points to defense counsel's argument that Barron and his wife socialized with neighbors and let their dogs play together, saying that the jury "would expect corroboration" of this assertion. Barron identifies several neighbors and another individual who submitted declarations in support of his motion for new trial, summarizing their declarations and arguing they would portray Barron as highly regarded, a leader and good neighbor, composed and polite, and who handled his dogs appropriately. According to Barron, counsel's failure to call these disinterested witnesses was unreasonable and prejudiced him by failing to corroborate his and his wife's testimony.
Our view of the record does not bear out Barron's claim that the People presented Barron in such a negative manner or attacked his character as an overarching theme of the case. To the contrary, in her opening statements, the prosecutor told the jury the case was about accountability; that she would not ask it to find Barron to be "some horrible guy or something like that." Though J.Z.'s wife did testify that she felt Barron's actions and language toward them was "bullying" or "full of contempt," J.Z. did not. And the prosecutor in her closing arguments emphasized the accountability point again, stating that the case was not about whether the dogs were mean, and it was "not a popularity contest" but rather "about what happened and what the evidence actually shows." At worst, the prosecutor characterized Barron as "not considerate" for letting his dogs out knowing his neighbors were bothered by that.
Thus, we cannot say Barron's counsel was ineffective for failing to rebut a supposed theme of the case that does not appear in the record. Moreover, because only the new trial declarations are in the record without detailing the background of the individuals who gave them or information relating to their credibility, we cannot assess that Barron's defense counsel should have called these individuals as trial witnesses, which would have resulted in opening the door for the People to present potentially bad character evidence concerning Barron. (Evid. Code, § 1102, subd. (b).) It is Barron's burden to establish constitutionally inadequate assistance of counsel (People v. Mickel (2016) 2 Cal.5th 181, 198), and on this record, we cannot say that he met this burden. We thus rest on the presumption that his counsel's actions fell within the broad range of reasonableness. (Ibid.) B. Defense Counsel's Closing Arguments
The trial court's instructions to the jury included one on lawful self-defense, which told the jury in part that Barron would not be guilty of the charged crime if he (1) reasonably believed that he was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully; (2) reasonably believed that the immediate use of force was necessary to defend against that danger; and (3) used no more force than was reasonably necessary to defend against that danger.
The court continued to read the self-defense instruction as follows: "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 that there was imminent danger of body [sic] injury to himself. Or and [sic] imminent danger that he is would be [sic] touched unlawfully. [¶] Defendant's belief must have been reasonable and he 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 belief were [sic] 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. If the defendant's belief were [sic] reasonable, the danger does not need to have actually existed. The slightest touching can be unlawful if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind. If you find Mr. [Z.] threatened or harm [sic] the defendant in the past, you may consider that information in [ ] deciding whether the defendant's conduct and beliefs were reasonable. If you find that the defendant knew that Mr. [Z.] had threatened or harmed others in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable."
During closing arguments, Barron's counsel argued to the jury that J.Z. was annoyed and sought to punish the dogs by pepper spraying them, but then transferred his intent to Barron as the person responsible for the situation. Counsel stated: "And I don't think [J.Z.] had the ability to foresee or step into someone else's shoes to think, how is that person going to respond if they're peppered sprayed. I mean, if you suddenly peppered spray someone and they are not aware of what it is, how are they going to react? And that is the question that has probably been going through all of our minds these last few days. And the danger of entertaining that and sitting here and thinking, what would I have done? You can't say for sure what you would have done, okay. Because that's a rational thought process. You put yourself in that circumstances [sic] and you go, if I had been sprayed, and assume you knew it was pepper spray as opposed to something else. But even then, even if you didn't know it was pepper spray, you would think, oh, I would have ran [sic] because that's the best way to get away from it, right? Well, not necessarily. Like I said, you are thinking of it rationally. You have time. You have all the information to kind of think and put that into prospective. But in reality, when are people confronted [sic] in that manner, they are not thinking rationally, okay. And that's not the standard here. The standard is reasonableness, okay."
Defense counsel posited that individuals react differently when ambushed, and that under the circumstances when Barron was confronted with being sprayed, his response was to rush toward J.Z.: "[Barron] gets sprayed with something. And at that time moment [sic] he doesn't know. And that's when that response kicks in. Like I said, it's not a rational response. I mean, that's not how our brain works. That's not how we revolved [sic] over time. If it had we wouldn't be here. Evolution would have called us out. You know, you get confronted by danger, you need to do some sort of action in order to survive. If you have to wait and rationally think about it, then the likelihood is it's too late and that's it for you. His response to this was to rush forward at what was being sprayed at him. And he knows that he hit and he knows that knocked [J.Z.] down. And he hears [J.Z.] on the ground call for his wife. And he stops. Because at this point he doesn't [ ] need to do anything more. He is not being attacked any more. He is not being sprayed. And the dogs also not sprayed [sic]."
Barron contends that in making these arguments his counsel was ineffective for undermining his self-defense theory because he asserted Barron acted unreasonably, instinctively, or irrationally when J.Z. confronted him and sprayed him with pepper spray. Barron characterizes his counsel as misunderstanding the law, and "arguing against" the self-defense instruction, which he maintains cannot be explained as a tactical decision.
The argument mischaracterizes the record. Barron neglects to point out that after defense counsel made these remarks, he proceeded to correctly explain to the jury the elements of a lawful claim of self-defense under the self-defense jury instruction, and how Barron's conduct met those elements. Taking all of the remarks in context, it is apparent that counsel was explaining to the jury that Barron's reaction of moving toward J.Z. was not a rational, thought-out response, but that Barron did so because he reasonably believed and it was "pretty self-evident" he was in imminent danger; he reasonably believed immediate use of force was necessary to defend against the danger, stopping once J.Z. fell to the ground; and Barron used reasonable force against the pepper spray by rushing forward and knocking J.Z. to the ground. Counsel emphasized: "And it is important that we remember that it has to be a reasonable person. And not just for Richard Barron but also for [J.Z.]." As the People point out, the argument was consistent with Barron's testimony that he "didn't stand on the side of my road saying Gee, I've just been pepper sprayed. Let's go and slug him in the head. You know, this was a visceral reaction to an immediate attack. And there was no conscious thought process here."
In sum, we perceive no misunderstanding of self-defense legal principles or otherwise constitutionally inadequate performance on the part of Barron's counsel. Nor has Barron shown any prejudice from any supposed ineffective assistance. The jury was properly instructed on self-defense. Barron has made no showing to rebut the presumption the jurors understood, accepted, and followed those instructions. (People v. Erskine (2019) 7 Cal.5th 279, 301, 303; People v. Potts, supra, 6 Cal.5th at p. 1037.) C. Counsel's Failure to Object to Introduction of Body-Worn Camera Footage or Ask that the Transcript be Redacted
Barron contends his counsel was constitutionally ineffective for failing to object when the court played the responding officer's body-worn camera footage during the People's rebuttal case and provided the jury with a transcript. He maintains his counsel should have at a minimum redacted the following statements of the officer:
- "Yeah, it's a legit 245." [Referring to the Penal Code section for assault with a deadly weapon.]
- "I need to pat you down for weapons, okay?"
- "I understand you don't appreciate that [being handcuffed in your own house]. However, you just assaulted somebody with a deadly weapon and we're trying to get to . . . the bottom of it."
- "Five big dogs, okay. And you think a reasonable person would think that that's normal? That there's five big dogs coming out, you guys have history, right?"
- "You know you can knock somebody out and kill them by hitting them in the head with a flashlight?"
- "It doesn't negate the fact that you hit somebody in the head with a flashlight which is considered a deadly weapon by the means that it was used. Okay? So, at this point you are under arrest for assault with a deadly weapon . . . ."
- "I understand that he pepper sprayed you, however, that doesn't give you the right to smash him in the head with a flashlight."
Barron, who has isolated some of these remarks out of context, characterizes them as "highly prejudicial," gratuitous, and inadmissible opinions on his guilt or innocence.
We are not persuaded that Barron has overcome the strong presumption that counsel's silence about the recording was a trial strategy. (See People v. Amezcua and Flores (2019) 6 Cal.5th 886, 911, fn. 11; People v. Dennis (1998) 17 Cal.4th 468, 541.) " '[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.' " (People v. Romero and Self (2015) 62 Cal.4th 1, 25; People v. Carrasco (2014) 59 Cal.4th 924, 985.) The record does not reveal why Barron's counsel failed to object to the challenged portions of the recording, and we cannot agree that there was no reasonable strategic basis for the decision. (Accord, Carrasco, at pp. 985-986.) The officer's statement about conducting a pat down is not inflammatory, particularly in context, and counsel may have simply found it a remark reflecting standard police procedures. Further, Barron had already admitted telling the officer that he had hit J.Z. with his flashlight, and had testified about being handcuffed and arrested, so his counsel could have concluded other statements and information in the recording were merely cumulative, and decided it best not to draw undue attention to them. (Accord, Amezcua and Flores, at p. 985, fn. 11.)
More fully at this point in the transcript, the officer said: "All right, step on out for me. I need to pat you down for weapons, okay? I'm going to respect you, and we're just gonna talk about what happened, but it's a pretty serious situation that happened, right? What is your name sir?"
As for the officer's statements that Barron had committed an assault with a deadly weapon, the officer was telling Barron why he was asking him questions, and explaining in a respectful way why he was arresting him. The other statement about a "legit 245," as we read the transcript, was a remark likely directed into his radio to either the dispatcher or other officers. These statements are unlike those found improper in People v. Torres (1995) 33 Cal.App.4th 37, in which an officer gave opinions at trial as to the definitions of robbery and extortion, and volunteered that robbery " 'is what happened in this particular case.' " (Id. at pp. 48-49.) The court in Torres found that error harmless in any event, because the trial evidence supported a finding on all elements of robbery and negated a necessary element of extortion, thus the court held the jury could not "reasonably have reached any other conclusion than defendant's acts constituted attempted robbery . . . ." (Id. at p. 52.) Nothing in People v. Coffman and Marlow (2004) 34 Cal.4th 1, compels a different conclusion. That case merely states the general rule that a trial witness should not express an opinion on a defendant's guilt because it does not assist the jury; there, the California Supreme Court found no such opinion was given by a codefendant percipient witness who merely testified about the defendant's participation in the offenses. (Id. at p. 77.) Nor were the statements like those held to have been erroneously and prejudicially admitted in People v. Guizar (1986) 180 Cal.App.3d 487, in which the prosecutor emphasized during closing arguments a taped statement and transcript presented to the jury in which a witness said the defendant, who was on trial for murder, had "committed 'some murders before . . . .' " (Id. at p. 491.) The Court of Appeal held it was "inconceivable" that defense counsel did not object to that evidence on grounds it was more prejudicial than probative. (Id. at p. 492.) But the court's conclusion was compelled by other considerations weakening the prosecution's case, including the parties' alcohol consumption and the witness's five-day delay in explaining his version of the shooting. (Ibid.)
At one point the officer said: "Okay. Now I'm, I'm not disputing that anything, that the incident did not happen [sic]. I have two different sides of the story. They're very, very similar but it's a he said/he said what happened first leading to what. Okay? It doesn't negate the fact that you hit somebody in the head with a flashlight which is considered a deadly weapon by the means that it was used. Okay? So, at this point you are under arrest for assault with a deadly weapon and we're going down to Vista Detention Facility." The officer also told Barron: "Just because you're being arrested tonight doesn't mean you'll be found guilty. This is definitely something that will have to be hashed out in court based on the circumstances that they are [sic]. However, with the injury and the weapon used and the means it was used, uh, you are under arrest for assault with a deadly weapon. Okay? Like I said earlier, I'm gonna respect you. I'm not going to treat you poorly, okay, but I would like your cooperation through this process. If you don't want to talk to me, that's fine. At this point, you are under arrest so I'm not going to ask you anything else, okay?"
Here, the case against Barron was strong, and included Barron's own admissions on the evening in question as to what he had done. Even if we concluded it was error to admit, or ineffective assistance to fail to object to, the officer's "legit 245" statement or other statements to Barron about him committing assault with a deadly weapon, we cannot say their omission would have altered the verdict.
VI. Claim of Cumulative Error
Barron contends that the number of asserted errors was cumulatively prejudicial, resulting in the jury having received an unfair depiction of events. Because we have either found no error, or concluded that any assumed error was harmless, no cumulative prejudicial effect warrants reversal. (Accord, People v. Bell, supra, 7 Cal.5th at p. 132; People v. Winbush (2017) 2 Cal.5th 402, 486.)
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: BENKE, Acting P. J. AARON, J.