Opinion
D056192
08-18-2011
THE PEOPLE, Plaintiff and Respondent, v. JUSTIN MICHAEL BATES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCE284177)
APPEAL from a judgment of the Superior Court of San Diego County, William J. McGrath, Jr., Judge. Affirmed.
A jury found defendant Justin Bates guilty of one count of attempted voluntary manslaughter (Pen. Code, §§ 664/192), and one count of assault with a deadly weapon (§ 245, subd (a)(1)), and found true that when committing these crimes he personally used a deadly weapon (a knife) and personally inflicted great bodily injury. The court sentenced Bates to seven years in state prison.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, Bates contends the court erred in numerous evidentiary rulings and committed instructional error. Bates also contends that because the pivotal evidence was provided by the victim (Jacquiline), and her testimony was rife with inconsistencies, the evidence was insufficient to support the verdict.
FACTS
A. Prosecution Evidence
Third Party Witnesses
Shortly before 2:00 a.m. on September 19, 2008, Mr. and Mrs. M. were awoken in their home on Hacienda Drive in El Cajon, California, by the sounds of a car crash. While Mrs. M. called 911, Mr. M. went outside to investigate. He saw a car roll slowly up the street, then roll backwards down an incline into a neighbor's yard. After the car stopped, he heard a high pitched scream and then moaning.
As Mr. M. watched, he saw someone approaching his house, carrying a bloody knife. The person stated, in a "matter of fact [and] very calm" manner, that "I had to do it; she is a fucking whore. I had to do it; she is a fucking whore." The person put the knife down, raised his hands above his head, and said, "I am not going to do anything." However, when someone inside Mr. M.'s house yelled that the person might have a gun, Mr. M. retreated inside and locked the door. When police arrived, they arrested the person who had been carrying the knife, identified at trial as Bates.
Officer Ryno, one of the officers who responded to the 911 calls, saw Bates sitting on the front porch of Mr. and Mrs. M.'s home holding a mobile phone. Bates was covered with blood and approached Ryno's car; Ryno got out of his car, drew his weapon, and ordered Bates to the ground. While other officers took control of Bates, Ryno looked for the woman heard crying for help. He found Jacquiline on the ground; she was soaked in blood, and was holding her hands to her throat. She said "help me," and Ryno was gravely concerned she would die. Jacquiline also told Ryno she believed she was dying. Ryno told her to maintain the pressure on her throat until medical help arrived. Jacquiline said Bates had attacked her in the car with a knife, and had cut her throat several times, causing her to lose control of the car.
Officer Sargent, one of the other responding officers, described Bates as calm while being arrested. Sargent found a knife in Bates's pocket and asked if he had stabbed someone, and Bates answered, "Yes, I stabbed her" in a conversational and almost nonchalant tone.
Bates was unhurt and declined medical assistance. Jacquiline suffered "massive" injuries, including multiple neck wounds, all of which were gaping open. One of the wounds was virtually ear to ear where her throat was slit deeply enough to cut through fat and muscle tissue. Three fingers on her right hand had also been lacerated, and one tendon had been severed, which the expert concluded was consistent with defensive wounds as if someone tried to grab a knife by the blade. She also suffered a broken right orbital bone. An expert reconstruction of the crime scene concluded Jacquiline had been driving southbound on Hacienda Drive when she was cut by her passenger (Bates), sitting in the right front seat.
Jacquiline's Trial Testimony
On September 18, 2008, Jacquiline went to a bar shortly before midnight. Before encountering Bates, she consumed a Vicodin-type painkiller, marijuana, cocaine and beer. She encountered Bates, who looked somewhat familiar to her, when she went outside to smoke a cigarette. Bates struck up a casual conversation with her. After finishing her cigarette, she started to go back inside, but Bates asked, "Where are you going," and kissed her. Jacquiline kissed him back, and was flattered but surprised. She then said she was going back inside to finish her drink, and Bates accompanied her. At some point, Bates made a seemingly jesting remark about a "hooker," but Jacquiline could not tell if it was directed toward her or someone else in the bar. Bates also suggested she accompany him to the men's bathroom, which she found degrading.
At the bar, Bates insisted on paying for Jacquiline's drinks. She accepted his largesse. Jacquiline later went outside to put her purse in her car and smoked some marijuana. As she was getting out of her car, Bates appeared and asked her to let him in. He got into the car and, when he bent over as though he were going to vomit, Jacquiline asked if he was going to vomit and whether he needed to get out of her car. Bates asked her to drive him down the street, and when Jacquiline refused, he repeated "just take me down the street" in a raised voice. She started the car and drove him down the street.
When Jacquiline started to turn at a street, Bates grabbed the wheel, forcing her to drive straight ahead, giggling as he did so. When she asked Bates where to drop him off, he indicated a house and told her to pull over, which she did, but Bates did not get out. Jacquiline told Bates she was going to a convenience store and suggested he could "call your friends or something for a ride." She also suggested he could buy some beer at the store, and Bates agreed. She drove to the convenience store and they went inside, where Bates asked what kind of beer she liked and then bought the brand she suggested. She told him she would wait outside in the car, and he said, "Yeah, why don't you do that."
Once she got in her car, she considered leaving without Bates, feeling she made a bad decision to get in the car with him because she barely knew him, but she felt bad about stranding him. She started the car and began to leave the parking lot, but a patrol car pulled in and she stopped to avoid being arrested for driving under the influence. Bates came out of the store at that moment and called out, "Hey, hey."
When he got into the car, Bates demeanor had changed from being "jolly" to being angry. He asked if she had been about to leave him, but she denied it. He told her of a spot on Swallows where they could park and drink, and she drove where he directed. They parked, drank beer, and kissed some more. Bates also got into the back seat and urged Jacquiline to join him for sexual conduct, but she declined. By the time they left Swallows, Bates had become "reserved." Because it was late and Jacquiline had to work the following day, she asked where she could drop him off. Bates directed her toward Hacienda Drive.
After following his direction to turn onto Hacienda Drive, Jacquiline asked Bates "is it this house right here?" several times, but Bates did not respond, and had become "really quiet." He turned and gave Jacquiline a "strange look," and then pointed at the sun visor and asked "what is that up there?" Jacquiline thought he was referring to the tire gauge she kept clipped to the sun visor, and reached for it, but she knocked a pocket knife (also clipped to the visor) onto the center console. She retrieved it and clipped it back onto the visor. Bates then asked "What is that over there?" and, when Jacquiline looked out the left side toward where Bates had indicated, she felt a burning sensation in her neck and saw blood pouring down her shirt. She realized Bates had cut her neck and cried "what are you doing," and pleaded with him to stop, but he tried to cut her again. She tried to defend herself but he cut her several more times.
When police inventoried the car after rescuing Jacquiline, they found a pocket knife clipped to the driver's side sun visor.
Jacquiline's car crashed into a parked car and then eventually came to rest, and Jacquiline got out and tried to run and call out for help, but Bates got out and came toward her. At some point, she returned to her car to try to find something with which to defend herself but found nothing. Bates continued to pursue her and, after she fell face down, she tried to pretend she was dead. However, Bates came up behind her, yanked her head up by the hair, and said, "You fucking bitch. You aint dead yet," and slit her throat from ear to ear. She tried to grab his knife, but Bates sliced her hand on the blade. She tried again to flee, but Bates pursued her and continued his attack. Police eventually arrived and Bates stopped his assault.
B. Defense Case
The defense case was based largely on efforts to impeach Jacquiline's credibility. The defense pointed out that, in several interviews given by Jacquiline at various times, she had lied to police about her consumption of alcohol and her use and possession of drugs on the evening in question. However, Jacquiline explained at trial she lied about those subjects to protect herself from being prosecuted for drugs or for driving while intoxicated. The defense also attempted to show some inconsistencies between her description of the events to police and her trial testimony (apart from drug and alcohol issues), including the extent to which she had seen Bates in the past, and whether Bates had tried to forcibly have sex with her. The defense also introduced the transcript of Jacquiline's testimony at the preliminary hearing testimony, in its entirety, to highlight some discrepancies between her trial testimony and her testimony at the preliminary hearing.
For example, at trial she testified she had taken pain medication that night, but she denied taking any pain medication at the preliminary hearing. At trial she testified she went outside to put her purse in the car and smoked marijuana while there, but at the preliminary hearing she testified she went outside to smoke marijuana.
The defense also introduced the security tape from the convenience store, as well as the 911 call made by the clerk of the convenience store. The security tape showed Bates telling the clerk, "[t]hat girl is crazy. [¶] . . . [¶] Please. Call the cops. I'm being killed by her. Please call the cops about her, okay?" In the 911 call made by the clerk as Bates left the convenience store, the clerk said Bates is "really urgent. . . . [H]e's leaving with her. I don't know, but, uh (unintel) he's, tripping out. . . ." After giving the 911 operator a description of the car and its direction, the clerk related that Bates said, "this chick's crazy and she had all of his information and . . . I don't know what she's gonna . . . do. . . . I don't know, [Bates] was freaking out."
The defense also introduced the testimony of Bates's friend, Mr. LaPoint, present in the bar with Bates and Jacquiline the night of the attack. LaPoint testified he had never seen Bates act violently toward women. He overheard Bates and a woman discussing having sex for money, and Bates and the woman began kissing. Later that night, Bates and the woman left together in the woman's car, and Bates asked LaPoint to follow them in LaPoint's car. However, the woman drove away very fast, and LaPoint lost them after the woman ran through red lights.
ANALYSIS
A. Exclusion of Bates's Hearsay Statements at Police Station Was Proper
Bates contends the court erred by excluding evidence of statements he made at the police station. He argues that, because an officer testified he asked Bates (moments after handcuffing him at the scene) whether he stabbed Jacquiline and Bates replied, "Yes, I stabbed her," Bates's later exculpatory statements at the police station should have been admitted under Evidence Code section 356.
Evidence Code section 356 provides: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party . . . and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence." As explained in People v. Arias (1996) 13 Cal.4th 92, 156, the purpose of section 356 "is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed. [Citation.] Thus, if a party's oral admissions have been introduced in evidence, he may show other portions of the same interview or conversation, even if they are self-serving, which 'have some bearing upon, or connection with, the admission . . . in evidence.' "
Bates asserts that it was error to exclude his later statements at the police station because the later statements contradicted his statement that he stabbed Jacquiline. However, because the purpose of section 356 is to prevent the use of selected aspects of a conversation to create a misleading impression on the subjects addressed, it is not error to exclude statements from a conversation or interrogation to explain statements made in a previous distinct and separate conversation. (See People v. Williams (2006) 40 Cal.4th 287, 319 [court has discretion not to admit statements made by defendant in first interview with detectives to explain statements made in another interview 24 hours later]; People v. Barrick (1982) 33 Cal.3d 115, 131-132 [court did not abuse discretion by refusing to admit postarrest statements to explain prearrest statements; defendant's arrest and admonishment of constitutional rights separated the interrogation into two separate interrogations]; People v. Johnson (2010) 183 Cal.App.4th 253, 287.) Here, the evidence supported the trial court's conclusion that there was a significant time lapse between Bates's admission at the scene ("Yes, I stabbed her") and the statements he made at the police station. Under these circumstances, the court acted within its discretion to conclude the statements at the police station were not a component part of the same interview or conversation as Bates's admission concerning stabbing Jacquiline, and it was therefore proper to exclude the statements.
Although Bates relies on cases such as People v. Zapien (1993) 4 Cal.4th 929, 959 and Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 850 as holding that courts should not draw narrow lines around the exact subject of inquiry when applying section 356, the statements admitted in favor of the party in each of those cases (as well as all of the other cases cited by Bates) were part and parcel of the same conversation that contained the statement admitted against the party, rather than being separated in both time and place, and hence those cases have no application here.
Although the record does not show the precise amount of time that passed, the evidence showed Bates's admission that he stabbed Jacquiline was made to Officer Sargent almost immediately after Sargent had arrived and handcuffed Bates. Some additional time passed while Sargent's partner located the victim and remained at the scene, and then additional time passed to transport Bates to the police department and to begin processing him. It was during the processing Bates made the excluded statements.
B. Exclusion of Jacquiline's Suicide Attempt Was Not an Abuse of Discretion
Bates filed a written in limine motion to allow introduction of Jacquiline's statement that she had been admitted to the hospital for a suicide attempt, because it would "bear[] greatly on her credibility." The proffered relevance was that Jacquiline might be on medication for the suicide attempt that, when combined with the other drugs and alcohol she consumed that night, could explain her "out of ordinary reaction" on the night of the attack, or that it might reflect Jacquiline had some mental condition that bore on "how she behaved while in the car."
The court, concluding the purported relevance seemed "speculative" because her suicide attempt may have been remote in time and there was no indication she had any drugs in her system related to her suicide attempt, denied the motion. However, the prosecutor later sought clarification of the scope of the ruling to insure that inquiry into any mental health treatment should be precluded, although the prosecutor conceded the defense could properly ask about any medications Jacquiline was taking on the night of the incident. The defense explained that, if Jacquiline suffered any mental illness, it would be relevant to the defense. While defense counsel conceded its only factual basis for exploring the issue was the brief reference to Jacquiline's suicide attempt, and the defense had no information that Jacquiline was schizophrenic or paranoid or was taking any medication or anti-depressant, the defense contended it should be allowed to explore this area with Jacquiline. The court ruled that, because the only evidence in the record was Jacquiline's single reference to once having been hospitalized for "suicide," without any indication of when or how, and there was no other evidence of mental illness, the defense would be limited to asking about any medications she might be taking, but would be barred from exploring Jacquiline's mental health history.
The mental illness or emotional instability of a witness can be relevant on the issue of credibility, and a witness may be cross-examined on that subject, if the illness affects the witness's ability to perceive, recall or describe the events in question. (People v. Herring (1993) 20 Cal.App.4th 1066, 1072; People v. Anderson (2001) 25 Cal.4th 543, 608 (conc. opn. of Kennard, J.).) "The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution 'to be confronted with the witnesses against him.' This right is secured for defendants in state as well as federal criminal proceedings . . . . [¶] . . . [¶] Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness." (Davis v. Alaska (1974) 415 U.S. 308, 315-316.)
[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, 'to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.' " [Citations.] However, not every restriction on a defendant's desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citation.] California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced "a significantly different impression of [the witnesses'] credibility" [citation], the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment.' " (People v. Carpenter (1999) 21 Cal.4th 1016, 1050-1051.)
Implicit in Bates's argument is the claim that, because Jacquiline's credibility was at issue, Jacquiline's mental health was also placed in issue, and therefore her privacy interests were waived under Evidence Code section 1016. However, a victim does not place his or her mental health at issue by charging someone with a crime. (See Susan S. v. Israels (1997) 55 Cal.App.4th 1290, 1297.) "[A]lthough a witness's credibility is always in issue, this does not mean the defense is entitled to rummage through the medical records of every witness in a criminal prosecution looking for evidence to impeach the witness's credibility." (Ibid.)Indeed, "[t]here is a duty [of the court] to protect [a witness] from questions which go beyond the [bounds] of proper cross-examination merely to harass, annoy or humiliate [her]." (Alford v. U.S. (1931) 282 U.S. 687, 694.)
The trial court's rulings on this issue were within its discretion. Bates had avenues to pursue if he wished to attack Jacquiline's credibility based on her alleged mental instability, but those avenues are subject to substantial limitations. (See generally People v. Hammon (1997) 15 Cal.4th 1117.) Because Bates elected not to pursue these avenues, but instead attempted to delve into Jacquiline's mental health history by embarking on a fishing expedition, the court acted within its discretion to limit Bates's inquiry to asking about medications she had taken on the night in question (that might have diminished her ability to perceive or recall the events) while protecting the Jacquiline from questions concerning her prior history of mental health treatments, which would invade her privacy interests without any effort by Bates first to demonstrate good cause existed for that line of inquiry.
C. Bates's Right to Cross-Examine Jacquiline Was Not Infringed
Bates argues that, during defense counsel's lengthy cross-examination of Jacquiline, the court improperly interfered with defense counsel's impeachment of Jacquiline. Bates's claim of error is based on a single occasion when the court rephrased a question posed by defense counsel that appeared to have been unclear to Jacquiline. Jacquiline testified at trial that she thought she had some Mace in her car, and she tried to find it at some point to use to fend off Bates's attack, but she could not find it. During cross-examination, defense counsel (Ms. Beebee) had asked a series of questions probing alleged inconsistencies between Jacquiline's preliminary hearing testimony (in which Jacquiline mentioned she had also briefly looked for the Mace earlier that night) and Jacquiline's trial testimony concerning looking for Mace. In the course of that questioning, the following colloquy occurred:
Jacquiline testified at the preliminary hearing that, while they were stopped and parked on Swallows, she thought she heard footsteps outside the car not being made by Bates, and she checked for her Mace but did not see it.
"[Defense counsel]: So again, when you told us during the trial, this trial, that you were looking for your Mace to defend yourself against [Bates's] attack, that was not true?
"[Prosecution counsel]: Objection. Argumentative.
"[The Court]: Overruled. You can answer.
"[Jacquiline]: Can you repeat the question?"
"[The Court]: "Let's do it this way: Instead of trying to test the witness'[s] memory as to what she said at the trial and what she said at the prelim, she should be asked what her testimony is now. And then if there are discrepancies, Ms. Beebee, you can point them out in argument.
"[Defense counsel]: Okay.
"[The Court]: I believe the question . . . , if you wish to ask it[,] is: Why did she grab for the Mace? That's the question."
Jacquiline then explained the two times she had looked for the Mace.
Bates argues this exchange violated his right to cross-examine his accuser. The People argue, and we agree, that because defendant raised no complaint at trial that this rephrasing of the question violated his right to confront Jacquiline, and indeed acquiesced to the court's action, he has forfeited the claim on appeal. (People v. Tafoya (2007) 42 Cal.4th 147, 166 [defendant forfeited confrontation clause claim by failing to raise it at trial].) Although Bates argues it would have been futile to take exception at trial, and hence the requirement of a contemporaneous objection should be excused, because the court had given defense counsel great leeway in questioning the witness (overruling many objections by the prosecutor to defense counsel's questioning of Jacquiline) we are unconvinced an objection would have been futile.
Bates suggests that, to the extent the claim was forfeited, he is entitled to relief for ineffective assistance of counsel. However, ineffective assistance of counsel requires a showing both that counsel did not perform with reasonable competence and that it is reasonably probable a determination more favorable to the defendant would have resulted absent counsel's errors. (See, e.g., People v. Hernandez (2004) 33 Cal.4th 1040, 10521053.) In an appropriate case, we may reject an ineffectiveness claim on the ground of lack of prejudice without determining whether counsel's performance was deficient. (Strickland v. Washington (1984) 466 U.S. 668, 697; In re Fields (1990) 51 Cal.3d 1063, 1079.) Here, only a single question (in a cross-examination that occupies over 100 pages of reporters transcript) was rephrased by the court. We are unconvinced it is reasonably probable a determination more favorable to Bates would have resulted if counsel had insisted on an answer to this single question as originally phrased.
D. Substantial Evidence Supports the Verdict
Bates contends the evidence is insufficient to support the verdict because Jacquiline was not a credible witness. However, it is for the jury, not this court, to determine Jacquiline's credibility (People v. Bolin (1998) 18 Cal.4th 297, 333), and the jury had a rational basis for concluding that any inconsistencies between Jacquiline's trial testimony and her prior statements were rooted in her concern over collateral criminal consequences (or were due to her inebriated state) rather than because her trial testimony about the salient events was false.
When a witness gives testimony that if credited will support the judgment, a court may not reverse for insufficiency of the evidence unless the testimony is physically impossible or is inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Bates does not claim Jacquiline's trial testimony was physically impossible, and we disagree with his implied claim that Jacquiline's description of the assault was inherently improbable because she ascribed conduct to Bates inexplicable by ordinary human standards. Although Bates's assault was senseless, horrific and inexplicable, such a determination does not mean the verdict lacks evidentiary support. (People v. Whisenhunt (2008) 44 Cal.4th 174, 202.)
E. The Court Properly Excluded Certain Character Evidence
The defense called Bates's friend, Mr. LaPoint, to testify about Bates's character. The prosecution agreed LaPoint could testify to Bates's "character for nonviolence," but objected to any testimony "beyond that." Defense counsel argued Bates's character for honesty was relevant and admissible because one of the officers who interviewed Jacquiline had told her that Bates's version of the events "was different" from hers. The court ruled Bates's veracity was not relevant because he had not testified and none of his exculpatory statements had been admitted.
The court properly sustained the prosecutor's objection to evidence of Bates's veracity. Although Evidence Code section 780 provides a trier of fact may, in determining the credibility of a witness, admit evidence of the witness's character for honesty or veracity (Evid. Code, § 780, subd. (e)), a witness is defined as a person who testifies under oath (Evid. Code, § 710), and Bates did not testify. The mere fact that a statement from Bates (his admission to Officer Sargent) was admitted under an exception to the hearsay rule (Evid. Code, § 1220), made Bates a "declarant," but not a "witness." (Cal. Law Revision Com. com., 29B Pt. 1 West's Ann. Evid. Code (1995 ed.) foll. § 135, p. 14 ["Ordinarily, the word 'declarant' is used in the Evidence Code to refer to a person who makes a hearsay statement as distinguished from the witness who testifies to the content of the statement"].)
Bates cites several cases purporting to authorize admission of evidence concerning a defendant's character for truth and veracity even when the defendant does not testify. However, two of those cases involved crimes in which the defendant's misfeasance sounded in fraud. (See People v. Suk (1990) 220 Cal.App.3d 952, 954, 957 [defendant charged with violating Vehicle Code section 10752, which requires proof of intent to defraud]; People v. Arends (1957) 155 Cal.App.2d 496, 502-503 [defendant charged with grand theft for stealing from employer by artifice].) Under those circumstances, the defendant's character for honesty was relevant and evidence of his good character was arguably admissible (see, e.g., People v. Pic'l (1981) 114 Cal.App.3d 824, 890, disapproved on other grounds by People v. Kimble (1988) 44 Cal.3d 480, 496, 498), but no similar charge was filed in this action. In the only other case cited by Bates, People v. Reeves (1980) 105 Cal.App.3d 444, the evidence was admitted without objection and the court did not discuss, much less hold, that character evidence concerning a defendant's reputation for honesty is admissible over objection. None of the cases cited by Bates undermine our conclusion that the court properly sustained the prosecution's objection to the proffered character evidence.
F. The Instructional Rulings Were Correct
Bates requested a pinpoint instruction on "imperfect self defense," and also requested inclusion of an optional paragraph in a form instruction addressing witness credibility. The trial court rejected these requests, and Bates asserts these rulings constituted reversible error.
The Pinpoint Instruction
Bates requested the jury be instructed with a modified version of CALCRIM No. 3406, and asked that the jury be instructed that:
"The defendant is not guilty of Attempted Murder, Attempted Voluntary Manslaughter and Assault With a Deadly Weapon if he did not have the intent or mental state required to commit the crime because he [reasonably] did not know a fact or [reasonably and] mistakenly believed a fact. [¶] If the defendant's conduct would have been lawful under the facts as he [reasonably] believed them to be, he did not commit Attempted Murder, Attempted Voluntary Manslaughter and Assault With a Deadly Weapon. [¶] If you find that the defendant believed that [Jacquiline] was a prostitute and that she was going to rob him and cut or stab him with a knife [and if you find that belief was reasonable], he did not have the specific intent or mental state required for Attempted Murder, Attempted Voluntary Manslaughter and Assault With a Deadly Weapon. [¶] If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for Attempted Murder, Attempted Voluntary Manslaughter and Assault With a Deadly Weapon, you must find him not guilty of those crimes."
The defense argued the instruction was appropriate because the jury might believe Bates was "acting under [the] mistaken belief that she was going to rob him or stab him . . . . [T]hey may not believe she was going to attack him, but they may believe that [Bates] had a sincere belief that she was." The court declined the instruction because "all of the reasons for which the defense is requesting it . . . are covered in other instructions."
Although " 'in appropriate circumstances' a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case[,] . . . a trial court need not give a pinpoint instruction if it is argumentative [citation], merely duplicates other instructions [citation], or is not supported by substantial evidence [citation]." (People v. Bolden (2002) 29 Cal.4th 515, 558.) Even assuming the evidence could have supported the instruction, the court correctly noted the legal principles embodied in the requested pinpoint instruction were duplicative of the applicable principles covered by other instructions. The court gave CALCRIM No. 3470, articulating the principles of the defense of self-defense, which stated Bates would not be guilty:
A court need not give an instruction when the evidence allegedly supporting the instruction "was 'at most minimal' [quoting People v. Williams (1988) 45 Cal.3d 1268, 1312]" (People v. Roldan (2005) 35 Cal.4th 646, 716, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22), and there is no evidence Bates feared Jacquiline was about to rob or stab him. While there was evidence Jacquiline had a pocket knife clipped to the visor of her car, and that the knife had fallen off the visor before Bates attacked Jacquiline, the only evidence was (1) Jacquiline's testimony that she had replaced the knife on the visor before Bates commenced his assault, and (2) police testimony that a pocket knife was clipped to the driver's side sun visor.
"if he used force against the other person in lawful self-defense. The defendant acted in lawful self-defense if:
"1. The defendant reasonably believed that he was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully];
"2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger;
"AND
"3. The defendant used no more force than was reasonably necessary to defend against that danger.
". . . The defendant must have believed there was imminent danger of violence to himself. 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 beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed.
"[The defendant's belief that he was threatened may be reasonable even if he relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true.]" (Italics added.)
The italicized language fully covered Bates's pinpoint instruction insofar as he sought to instruct the jury that his belief in the need for self-defense, even if mistaken, would provide a complete defense to the charges as long as it was reasonable. The court correctly ruled the proposed instruction was duplicative.
Bates appears to assert the proposed pinpoint instruction was not duplicative because the self-defense instruction as given was subject to the condition that he used "no more force than was reasonably necessary to defend against" the danger, defined as the "amount of force that a reasonable person would believe is necessary in the same situation," while his proposed instruction differed from the instructions given because his mistake-of-fact form of self-defense "had no such requirement." Bates cites no authority for this remarkable contention, and we conclude that, to the extent his proposed instruction in fact was not duplicative because it could be interpreted to permit a defendant to use any level of force when he operates under a mistaken belief in the need for self-defense, the court could have correctly rejected it as an incorrect statement of the law.
The Witness Credibility Instruction
Bates finally asserts the court should not have deleted from CALCRIM No. 226 an optional paragraph. That optional paragraph, which permits a jury to find a witness untruthful if the witness "engaged in other conduct that reflects on his or her believability," is included only when it is relevant to the facts of the particular case. (Judicial Council of Cal., Crim. Jury Instns. (2011) Bench Notes to CALCRIM No. 226, p. 63.)
Defense counsel argued the above optional paragraph should have been included because Jacquiline "specifically admitt[ed] to fabricating stories about [Bates] to protect herself and place him in danger of being arrested or thought badly of. She also, on the night in question, had ingested many substances . . . that would reflect most definitely on her believability." The court observed that the optional paragraph was applicable when there was "Wheeler type impeachment evidence of misdemeanor conduct where the actual crime cannot be introduced, but the conduct supporting it can be." The court, noting that the conduct cited by defense counsel could be argued with support from other instructions, denied the defense request to include the optional paragraph.
People v. Wheeler (1992) 4 Cal.4th 284.
CALCRIM No. 226 largely tracks the language of former CALJIC No. 2.20 on the factors a jury may consider in assessing a witness's credibility, and the optional paragraph of CALCRIM No. 226 in dispute here apparently replaced the paragraph in former CALJIC No. 2.20 that instructed the jury could consider "past criminal conduct of a witness amounting to a misdemeanor." The use note guiding the "past criminal conduct" language of former CALJIC No. 2.20 stated it was designed for cases where there was impeachment by prior misdemeanor conduct admitted under People v. Wheeler, supra. (See com. to CALJIC No. 2.20 (Fall 2010 ed.) p. 55.) No similar circumstance pertained here.
More importantly, the instructional platform from which defense counsel sought to argue the impeaching facts was fully covered by other elements within the "witness credibility" instruction. The fact Jacquiline "specifically admitt[ed] to fabricating stories" was twice highlighted in the instruction, because the jury was told they could consider whether "the witness admit[ted] to being untruthful" and that "[i]f [the jury] decide[s] that a witness deliberately lied about something significant . . . you should consider not believing anything that witness says." The other fact raised by defense counsel—that Jacquiline had "ingested many substances" that night—was adequately covered by the aspect of the witness credibility instruction that the jury could consider how well the witness had been able to "see, hear, or otherwise perceive the things about which the witness testified" and how well the witness was able to "remember . . . what happened." Because the optional paragraph was redundant to other instructions, insofar as the defense merely wished to highlight her falsities and her inebriation, omission of the optional paragraph was not error.
DISPOSITION
The judgment is affirmed.
McDONALD, J. WE CONCUR: BENKE, Acting P. J. NARES, J.