Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC507803
Mihara, J.
Defendant David Lee Brentlinger appeals from a judgment of conviction entered after a jury found him guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). The jury also found true the allegation that defendant personally inflicted great bodily injury upon the victim within the meaning of Penal Code sections 12022.7, subdivision (a) and 1203, subdivision (e)(3). In a bifurcated proceeding, the trial court found that defendant suffered two prior strike convictions (Pen. Code, §§ 667, subd. (b)-(i), 1170.12) and two prior serious felony convictions (Pen. Code, § 667, subd. (a)). The trial court sentenced defendant for an indeterminate term of 25 years to life consecutive to a determinate term of 12 years in state prison. The issues on appeal involve the admissibility of evidence, jury instructions, and the competency of trial counsel. For the reasons stated below, we affirm the judgment.
Defendant has also filed a petition for writ of habeas corpus, which we have considered with this appeal. We dispose of his habeas petition by separate order.
I. Statement of Facts
Prosecution Case
In early October 2005, Samuel Ruby and defendant panhandled on the same corner in San Jose. They would take turns at the corner, but defendant would occasionally tell Ruby to leave when it was Ruby’s turn. Ruby and defendant argued about defendant’s behavior for “days or weeks.”
On October 6, 2005, Ruby was 56 years old, approximately 5’6” tall, weighed about 216 pounds, and had walked with a cane for almost 15 years. On that day, Ruby decided to talk to defendant about the panhandling situation. Ruby, who did not live in the homeless camp where defendant lived, brought Eugene Wright with him. Ruby intended to have a couple of drinks with defendant whom he considered a friend. He was “[n]ot really” concerned about his safety, but he wanted Wright to accompany him “to watch [his] back.”
When Ruby and Wright arrived at the homeless camp, Ruby was intoxicated. He had consumed about five beers and taken several prescription medications, including Vicodin, Valium, Paxil, and Trazodone. Ruby hit defendant’s tent with his cane in order to get his attention. After defendant exited his tent, Ruby asked him if he wanted to have a few beers and discuss the panhandling situation. Ruby did not recall what happened next, but defendant’s “so-called” girlfriend, Laurie Sheldahl, exited the tent at some point, and defendant became belligerent. Defendant started to push Ruby. He then broke Ruby’s cane and punched Ruby in his chest and ribs. At some point, defendant was slugging Ruby and Ruby blacked out. Defendant and Ruby were wrestling, and when Ruby was on top of defendant, Sheldahl got on Ruby’s back grabbed his mustache, which was about four inches long, and tore half of it off. In response, Ruby grabbed Sheldahl’s hair and pushed her away. When defendant continued to hit Ruby in the chest area, Ruby took a swing at defendant. Ruby might also have pushed him. While defendant and Ruby were wrestling on the ground, Wright became involved in the fight by trying to take defendant off Ruby. Ruby did not see defendant with a knife. Ruby did not know if Wright pulled out a knife.
Ruby took all of his medications in the morning and three of his medications every six hours thereafter. He normally drank alcohol in the afternoon.
Ruby testified at the preliminary hearing that there were no tents at the camp.
Ruby explained that he used the term “so-called,” because defendant “was very jealous of anybody else talking to her and that he would always keep her in a tent because he was always beating her up.”
Ruby testified at the preliminary hearing that he did not take a swing at defendant.
Defendant hugged Ruby when the fight ended. Ruby then realized that he had been stabbed in the area where defendant had been pushing him. Ruby did not remember being stabbed. Wright gave Ruby a T-shirt to hold on his wounds. Wright then accompanied Ruby on the bus to the hospital. Ruby did not remember if Wright went with him to the hospital.
Ruby also testified that he became intoxicated and “called [] out” an individual named Rudy Zuniga in August 2005. At that time, Ruby told his friends that he “would fight anybody around there that would keep on taking [the panhandling] spot.” Zuniga was walking by, and he threw the first punch. Zuniga was not injured, but Ruby received a cut on his eye, which required five stitches. When Ruby was at the hospital, he told doctors that he had fallen, not that he had been in a fight. Ruby did not recall whether defendant was present during this incident, but he knew that Sheldahl was.
Officer Michael O’Neil was dispatched to the hospital where Ruby was receiving treatment for his injuries. Another officer had detained Wright, who misled the police about where the incident occurred. Wright also told the officer that they had been the victims of a random attack. Officer O’Neil seized a knife from Wright. Since Officer O’Neil did not see any blood on the knife, he did not send it to the crime laboratory for testing. Officer O’Neil noted a bite mark on Wright’s cheek, but did not see any blood on him.
After he interviewed Wright, Officer O’Neil went to the homeless camp to search for a suspect named David. He found defendant, who was not wearing a shirt. Defendant’s abdomen was smeared with blood. The police did not locate any knives during a search of defendant and the surrounding area. When the police arrived, Sheldahl was also present. She had a slight cut and swelling on her lip.
The parties stipulated that Ruby’s blood alcohol level was .205, and that he suffered stab wounds in his abdominal cavity and chest. He was hospitalized for seven days.
Defense Case
Officer Norene Marinelli examined the knife that had been seized from Wright. Since she did not see any blood on the knife, she did not send it to the crime laboratory. On October 17, 2005, Officer Marinelli obtained a recorded statement from Ruby. Ruby told her that he and defendant did not like each other, and he asked how he could put defendant away for the longest possible time. Ruby also told her that the fight was mutual, but defendant threw the first punch. Ruby never saw defendant with a knife. Officer Marinelli told Ruby that he could receive money through the victim witness program if he cooperated with the police investigation.
Halle Weingarten testified as an expert in forensic toxicology and alcohol’s effects on the human body. According to Weingarten, alcohol affects the brain’s ability to interpret sensory information, interferes with the processing of data, and thus causes problems in judgment. Those who drink alcohol are more likely to take risks, and may become more emotional. Their short-term memory, visual acuity, balance, and speech are also affected.
Rebuttal
Steve Dippert, a restitution specialist with the district attorney’s office, searched the victim compensation database. He found that Ruby did not receive any money from this program.
The prosecution also introduced evidence of defendant’s two prior felony convictions for assault with a deadly weapon, and one prior felony conviction for battery with serious bodily injury.
II. Discussion
A. Admissibility of Wright’s Statement to the Police
Defendant contends that the trial court violated his due process rights in excluding Wright’s statement to the police.
Defendant filed a motion in limine in which he requested that the trial court admit Wright’s statement to the police in lieu of his live testimony. Wright initially misled the police about the location of the incident, but later took them to the homeless camp. He also lied and told them that he and Ruby were “‘jumped by a couple of white dudes.’” However, in his subsequent statement to Officer O’Neil, Wright stated that Ruby asked him to accompany him to the homeless camp to “‘watch his back’ while he went to speak with a guy he (Ruby) had a disagreement with.” When they arrived, Ruby and defendant began to argue and fight. Wright tried to assist Ruby, and defendant bit Wright on the cheek. When Sheldahl tried to pull Ruby off defendant, Ruby hit her in the face with his cane. After defendant stabbed Ruby several times, Wright pulled out his own knife to scare defendant and stop his attack on Ruby. Wright also told Officer O’Neil that “he believed that Ruby was the aggressor and went to [defendant’s] camp to start a fight.” Ruby did not use his cane against defendant.
Several months later, the police interviewed Wright again. He stated that when Ruby and he arrived at the camp, Ruby “began ‘tearing up the camp’ by pulling the tents down and throwing objects around the campsite.” Ruby was yelling, “‘Where are you? I know you’re in here somewhere.’” When Wright asked him why he was destroying the camp, Ruby ignored him. Wright also told the police that he did not see Ruby hit Sheldahl and that Sheldahl told him that Ruby had done so.
In seeking admission of this evidence, defense counsel outlined his unsuccessful efforts to locate Wright. Fliers and numerous visits to the homeless camp did not produce Wright. Wright also failed to appear on an unrelated criminal case, and a bench warrant was issued.
Following argument by counsel, the trial court denied the motion. The trial court found that Wright’s statement was “absolutely and inherently unreliable.” The trial court noted that Wright had lied to the police and there was no way to determine Wright’s motive for the changes in his statements. The trial court also stated: “If his story had been consistent, if it had not been exculpatory as to Mr. Wright in any part, if it had not been partially inculpatory; partially exculpatory to his friend on the different occasion[s] and, likewise to the defendant, we might be dealing with a different situation. But my ruling is that this is not the kind of hearsay statement that is so reliable as to justify for any reason inclusion notwithstanding the hearsay rule and protections that it affords the truth finding process, so that it will be excluded.”
Evidence Code section 1200 states in relevant part that “‘[h]earsay 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.” Hearsay is inadmissible, unless it falls within an exception to the general rule. (§ 1200, subd. (b).) “‘The chief reasons for this general rule of inadmissibility are that the statements are not made under oath, the adverse party has no opportunity to cross-examine the declarant, and the jury cannot observe the declarant’s demeanor while making the statements.’” (People v. Duarte (2000) 24 Cal.4th 603, 610, quoting People v. Fuentes (1998) 61 Cal.App.4th 956, 960-961.) An appellate court reviews the trial court’s determination as to the admissibility of evidence (including whether the evidence falls within an exception to the hearsay rule) under the abuse of discretion standard. (People v. Mayo (2006) 140 Cal.App.4th 535, 553.) However, the determination as to whether the admission of the evidence was constitutional is reviewed under the de novo standard. (Ibid.)
All further statutory references are to the Evidence Code.
Defendant acknowledges that Wright’s statements were hearsay. However, he argues that they were admissible under Chambers v. Mississippi (1973) 410 U.S. 284 (Chambers) and Green v. Georgia (1979) 442 U.S. 95 (Green). We disagree.
In Chambers, the defendant was charged with murder. At trial, the defendant called a witness, who had previously signed a sworn confession that he had committed the murder. (Chambers, supra, 410 U.S. at p. 294.) After the witness repudiated his confession on the stand, the trial court denied the defendant’s request to examine the witness as an adverse witness based on Mississippi’s voucher rule, which barred the parties from impeaching their own witnesses. (Id. at pp. 294-295.) The defendant was also prevented from introducing the witness’s self-incriminating statements to three other individuals, because Mississippi did not recognize statements made against penal interest as an exception to its hearsay rule. (Id. at pp. 297-299.)
Regarding the hearsay rule, the Chambers court stated: “Although perhaps no rule of evidence has been more respected or more frequently applied in jury trials than that applicable to the exclusion of hearsay, exceptions tailored to allow the introduction of evidence which in fact is likely to be trustworthy have long existed. The testimony rejected by the trial court here bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest. That testimony also was critical to [the defendant’s] defense. In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” (Chambers, supra, 410 U.S. at p. 302.) The court concluded that “the exclusion of this critical evidence, coupled with the State’s refusal to permit [the defendant] to cross-examine [the witness], denied him a trial in accord with traditional and fundamental standards of due process.” (Ibid.)
In Green, the defendant and his codefendant were convicted of murder and rape. During the penalty phase of the capital case, the trial court excluded a codefendant’s admission to a friend that he was solely responsible for the crime. (Green, supra, 442 U.S. at p. 96.) Like Mississippi, Georgia did not recognize statements made against penal interest as an exception to the hearsay rule. (Id. at p. 96, fn. 1.) In concluding that exclusion of the statement violated the defendant’s due process right, the Green court found that “[t]he excluded testimony was highly relevant to a critical issue in the punishment phase of the trial, [citation] and substantial reasons existed to assume its reliability.” (Id. at p. 97.) The Green court noted that the statement was made spontaneously to a close friend, there was ample corroborating evidence that led to the codefendant’s conviction and capital sentence, the statement was against the codefendant’s interest, and it was used against the codefendant in his own capital case. (Ibid.) Thus, the court held that the exclusion of this evidence deprived the defendant of a fair trial. (Ibid.)
Here, the probative value of Wright’s statement is much weaker than those of the witnesses in Chambers and Green. More importantly, it lacks similar assurances of reliability. Both Chambers and Green involved statements against penal interest. In contrast to these cases, Wright never incriminated himself, and he also admitted that he had initially lied to the police about the identity of the perpetrator and the location of the attack. Wright’s statements were also inconsistent as to whether Ruby went to the camp with the intent of being the aggressor or the one who needed protection from others. Moreover, it is unclear from Wright’s statements how the fight actually began, and Wright did not reveal that he had not seen Ruby hit Sheldahl until several months later.
Defendant first claims that Wright’s statement that Ruby asked him to accompany him “to watch [his] back” was a statement against his own penal interest. There is no merit to this claim. Ruby’s request indicated that he was concerned that someone might attack him, and thus he would need help from Wright. Wright’s statement did not indicate that Wright went to the camp with the intent of initiating an attack on anyone. Thus, Wright’s version of the incident did not include a statement against Wright’s penal interest.
Defendant next argues that Wright had no motive to lie about his friend. However, the nature of Wright’s relationship to Ruby is unclear. Wright did not describe this relationship, and though Ruby referred to Wright as a “friend,” Ruby did not know his name on the day of the incident. Thus, defendant has failed to establish that this factor indicates that Wright’s statement was reliable.
Defendant also claims that Wright’s statement was corroborated by Ruby’s testimony that he asked Wright to watch his back, he hit defendant’s tent with his cane, and he called out Zuniga in the prior incident. However, the fact that portions of Wright’s statement were corroborated did not make the other portions more credible.
In sum, we conclude that Wright’s statement lacked adequate indicia of reliability, and thus the exclusion of this evidence did not deprive defendant of his due process rights.
B. Admissibility of Evidence of Two Incidents Involving Ruby’s Past Conduct
Defendant next contends that the trial court erred in excluding evidence of Ruby’s past violent conduct.
Defendant sought to introduce evidence of Ruby’s prior assaultive behavior while intoxicated. In the first incident, Ruby was under the influence of alcohol and several prescription drugs when he “called [] out” Zuniga for a fight. In the next incident, Ruby punched out a car window while he was intoxicated. In the third incident, the police responded to a domestic disturbance call. Ruby, who was intoxicated, waved his arms around when the police tried to subdue him. After the police pushed him to a prone position, he continued to be uncooperative. He was then placed into custody for resisting arrest and being drunk in public.
The trial court allowed defendant to introduce evidence of the incident involving Ruby and Zuniga. However, it denied defendant’s request to introduce evidence of the other two incidents. The trial court reasoned that the act of vandalism “in no way demonstrates a willingness to engage in physical violence towards another human being,” and the incident involving the police “suggests a withdrawal from restraint and physical violence. There’s no indication he swung at the officer, kicked at an officer or in any way engaged in an act of physical aggression, which is the issue in this case.”
“It has long been recognized that where self-defense is raised . . . evidence of the aggressive and violent character of the victim is admissible. Under Evidence Code section 1103, such character traits can be shown by evidence of specific acts of the victim on third persons as well as by general reputation evidence.” (People v. Wright (1985) 39 Cal.3d 576, 587, internal citations and quotation marks omitted.) This court reviews the trial court’s determination of the admissibility of evidence under the abuse of discretion standard. (People v. Barnett (1998) 17 Cal.4th 1044, 1118.)
Section 1103 states in relevant part: “(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.”
Defendant argues that the incidents indicate that Ruby becomes violent when he is intoxicated. He claims that it is irrelevant whether anyone was hurt after Ruby punched out the car window. As to the third incident, he points out that Ruby continued to resist arrest after the officer forcefully handcuffed him. However, the issue in the present case was whether Ruby or defendant initiated physical violence against the other. Neither of the excluded incidents was probative on this issue. The first excluded incident involved property damage. In the other excluded incident, Ruby did not threaten or initiate an attack on the officers. Instead, he was responding to police attempts to subdue him. Accordingly, the trial court did not abuse its discretion in excluding the evidence.
Relying on Davis v. Alaska (1974) 415 U.S. 308 (Davis) and Delaware v. Van Arsdall (1986) 475 U.S. 673 (Van Arsdall), defendant also argues that the trial court’s ruling deprived him of the opportunity to cross-examine Ruby regarding the two prior incidents, and thus show his bias and motive to lie about defendant. However, in both Davis and Van Arsdall, the defendant sought to cross-examine the witness regarding prior bad character evidence to expose his bias. (Davis, at p. 311; Van Arsdall, at p. 676.) When a defendant does not object to a ruling on a specific ground, he or she generally forfeits the right to raise the issue on appeal. (See e.g., People v. Simon (2001) 25 Cal.4th 1082, 1103.) Here, as defendant acknowledges, defense counsel did not object to the exclusion of Ruby’s prior acts on the ground that he had been deprived of his right under the confrontation clause of the Sixth Amendment to confront adverse witnesses.
Alternatively, however, defendant argues that trial counsel rendered ineffective assistance by failing to request the admission of Ruby’s two prior violent acts on the grounds of bias and motive to lie. In order to prevail on an ineffective assistance of counsel claim, the defendant must first show that “counsel’s representation fell below an objective standard of reasonableness . . . under prevailing professional norms.” (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland).) If the defendant meets this initial burden, he or she must then establish prejudice, that is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Id. at p. 694.) Here, defendant has failed to show that trial counsel was incompetent on this ground.
In Davis, a safe and its contents were stolen from a bar, and the safe was later found on the property where Richard Green lived. (Davis, supra, 415 U.S. at p. 309.) Green, who was on juvenile probation for burglary, identified the defendant as one of two men that he had seen near where the safe was found. (Id. at p. 310.) Though defense counsel sought to show that Green hastily and mistakenly identified the defendant as the perpetrator “out of fear or concern of possible jeopardy to his probation” and to divert attention away from himself, the trial court ruled that defense counsel could not question Green regarding his probationary status. (Id. at p. 311.) The Davis court reversed the judgment, concluding that “[t]he claim of bias which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of Green’s vulnerable status as a probationer, . . . as well as of Green’s possible concern that he might be a suspect in the investigation.” (Id. at pp. 317-318.) In Van Arsdall, the trial court denied the defense counsel’s request to impeach a prosecution witness whose criminal charge of public drunkenness had been dismissed after he agreed to talk with the prosecution about the charged murder. (Van Arsdall, supra, 475 U.S. at p. 676.) The Van Arsdall court held that “[b]y thus cutting off all questioning about an event . . . that a jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony, the court’s ruling violated respondent’s rights secured by the Confrontation Clause.” (Id. at p. 679.)
Here, in contrast to the witnesses in Davis and Van Arsdall, Ruby did not face impending criminal consequences as a result of his two prior acts and he did not receive any direct benefit, such as the dismissal of any charges. Simply put, the evidence of Ruby’s vandalism and resisting arrest did not show his bias or provide a motive for him to falsely accuse or misidentify defendant. A reasonably competent attorney would not have made the futile argument that the exclusion of this evidence deprived defendant of the opportunity to cross-examine Ruby as to his bias and motive to lie. Thus, defendant has failed to establish ineffective assistance of counsel on this ground.
C. Self-Defense Instruction (CALCRIM No. 3470)
Defendant also argues that the trial court erred in its instructions to the jury on self-defense.
Pursuant to the parties’ agreement, the trial court instructed the jury with CALCRIM No. 3470 (Self-Defense) as follows: “The defendant is not guilty of assault with a deadly weapon or simple assault if he used force against the other person in lawful self-defense. [¶] The defendant acted in lawful self-defense if: [¶] One. The defendant reasonably believed that he was in imminent danger of suffering bodily injury. [¶] Two. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger. [¶] And three. The defendant used no more force than was reasonably necessary to defend against that danger. [¶] 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 there was imminent danger of violence to himself. Defendant’s belief must have been reasonable and he must have acted only 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 the similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed. [¶] If you find Samuel Ruby threatened or harmed the defendant or others in the past, you may consider that information in deciding whether defendant’s conduct and beliefs were reasonable. [¶] The People have the burden of proving beyond a reasonable doubt that defendant did not act in lawful self-defense. [¶] If the People have not met this burden, you must find the defendant not guilty of assault with a deadly weapon or simple assault.” (Italics added.)
Defendant claims that he did not request this instruction, and that the trial court gave the instruction sua sponte. The record does not support his claim. The record states that the parties and the trial court had informal discussions regarding jury instructions, and that they had reached agreement on all instructions with the exception of the third party culpability instruction. Moreover, trial counsel states in his declaration attached to the petition for writ of habeas corpus that he requested this instruction.
Defendant argues that the instruction was erroneous, because there was “no evidence that [he] knew about Ruby’s prior violent conduct or that Ruby had previously threatened [him].”
“In a criminal case, a trial court has a duty to instruct the jury on the general principles of law relevant to the issues raised by the evidence. The general principles of law governing the case are those principles connected with the evidence and which are necessary for the jury’s understanding of the case. As to pertinent matters falling outside the definition of a general principle of law governing the case, it is defendant’s obligation to request any clarifying or amplifying instruction.” (People v. Estrada (1995) 11 Cal.4th 568, 574, internal citations and quotation marks omitted.)
Though the trial court must instruct the jury that it may consider the defendant’s knowledge of previous threats or assaults by the victim against someone else in determining whether the defendant acted reasonably (People v. Pena (1984) 151 Cal.App.3d 462, 475), there was no evidence in the present case that defendant was aware of Ruby’s altercation with Zuniga regarding the panhandling site. However, contrary to defendant’s claim, the italicized portion of the instruction did not refer to defendant’s knowledge of Ruby’s past conduct. Instead, the instruction informed the jury that if it found Ruby “threatened or harmed . . . others in the past” it could “consider that information in deciding whether defendant’s conduct and beliefs were reasonable.” In other words, the jury could consider Ruby’s prior conduct as tending to show that he acted in the same manner in his encounter with defendant, and thus determine whether defendant’s response was reasonable.
Alternatively, defendant argues that trial counsel rendered ineffective assistance by failing to request an instruction that “would have allowed the jury to consider the evidence [of Ruby’s prior violent act] as conformity evidence.” He asserts that trial counsel should have requested that the trial court give the following instruction: “Evidence was received of the violent character of the complaining witness. [¶] The purpose of such evidence is to show that it is probable that a person of such character acted in conformity with that character trait during the events constituting this case. [¶] Any conflict in evidence of the complaining witness’s character and the weight to be given to such evidence is for you to determine.”
“[Pinpoint] instructions relate particular facts to a legal issue in the case or ‘pinpoint’ the crux of a defendant’s case, such as mistaken identification or alibi. [Citation.] They are required to be given upon request when there is evidence supportive of the theory, . . .” (People v. Saille (1991) 54 Cal.3d 1103, 1119.)
In order to establish ineffective assistance of counsel, the defendant must show that “counsel’s performance fell below an objective standard of reasonableness . . . under prevailing professional norms.” (Strickland, supra, 466 U.S. at pp. 687-688.) However, “‘[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,’ the claim on appeal must be rejected.” (People v. Wilson (1992) 3 Cal.4th 926, 936, quoting People v. Pope (1979) 23 Cal.3d 412, 426.)
Since the proposed instruction, which is based on section 1103, subdivision (a), would have connected Ruby’s altercation with Zuniga to defendant’s self-defense theory, it was a pinpoint instruction. There was evidence to support the theory, and thus the trial court would have been required to give the instruction upon request. Here, however, defense counsel could have reasonably concluded that the instruction was unnecessary. The first paragraph of the instruction states that evidence of the complaining witness’s violent character has been admitted, and thus is merely introductory. The second paragraph, which specifies the purpose of the character evidence, that is, that the complaining witness probably acted in conformity with this character trait, summarizes section 1103, subdivision (a)(1). Trial counsel could have believed that this paragraph was covered by CALCRIM No. 3470, as given. Though no instruction referred to Ruby’s “violent character,” CALCRIM No. 3470 told the jury that it could consider Ruby’s past threats and harmful acts to others in determining the reasonableness of defendant’s beliefs and conduct. Thus, the instruction implicitly permitted the jury to consider Ruby’s violent character to show that he probably acted in conformity with this character trait. Based on this instruction and the evidence of Ruby’s past conduct, trial counsel argued that Ruby had “already demonstrated the character for aggression and asking other people to fight,” and that he had “a character and history of being violent and assaultive.” Thus, the issue presented in the second paragraph of the proposed instruction was considered by the jury. (Weighall v. Middle (9th Cir. 2000) 215 F.3d 1058, 1063.) The third paragraph, which referred to conflicts in the evidence and the weight to be given to the evidence, was also included in other instructions, such as CALCRIM No. 226 (Credibility of Witnesses) and CALCRIM No. 302 (Evaluating Conflicting Evidence). Since there is a reasonable explanation for trial counsel’s failure to request this pinpoint instruction, we reject the ineffectiveness claim.
We reject the People’s contention that the proposed instruction was improper, because it was argumentative. In our view, the proposed instruction states principles of law, and does not constitute argument.
D. Jury Instruction Regarding Defendant’s Prior Acts of Violence
Defendant also contends that the trial court erred in its instructions regarding his three uncharged violent acts.
After defendant introduced evidence of Ruby’s character for violence, the prosecutor introduced evidence of defendant’s two prior convictions for assault with a deadly weapon and one prior conviction for battery with serious bodily injury. The trial court then instructed the jury pursuant to a modified version of CALCRIM No. 852 (Evidence of Uncharged Domestic Violence) as follows: “The People presented evidence that the defendant committed prior acts of violence that were not charged in this case. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the prior acts. [¶] Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it’s more likely than not the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. If you decide that the defendant committed the prior acts of violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to acts of violence, and based on that decision, also conclude that the defendant was likely to commit and did commit assault with a deadly weapon as charged here. [¶] If you conclude that defendant committed the prior acts of violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of assault with a deadly weapon. The People must still prove each element of every charge beyond a reasonable doubt.”
CALCRIM No. 852 provides in relevant part: “The People presented evidence that the defendant committed domestic violence that was not charged in this case[.] [¶] . . . [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden or proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit [and did commit]<insert charged offense[s] involving domestic violence>, as charged here. If you conclude that the defendant committed the uncharged domestic violence. that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of <insert charged offense[s] involving domestic violence>. The People must still prove (the/each) (charge/ [and] allegation) beyond a reasonable doubt.”
Defendant argues that “the instruction allowed the jury to use character evidence to prove guilt by a preponderance of the evidence and therefore violated the due process clause,” and “contradicted the previous general instruction given that the prosecution must prove its case beyond a reasonable doubt.”
Generally, evidence of prior criminal acts is inadmissible to show a defendant’s disposition or propensity to commit such acts. (§ 1101, subd. (a).) However, exceptions to this rule have been created by the Legislature in sexual offense (§ 1108) and domestic violence (§ 1109) cases as well as in cases in which the defendant has presented evidence of the victim’s violent character (§ 1103, subd. (b)).
Section 1101, subdivision (a) provides: “Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or trait of character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”
Section 1103, subdivision (b) states: “In a criminal action, evidence of the defendant’s character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a).”
In People v. Reliford (2003) 29 Cal.4th 1007 (Reliford), the California Supreme Court approved CALJIC No. 2.50.01, which is analogous to CALJIC No. 2.50.02. The instructions are identical except CALJIC No. 2.50.01 refers to “sexual offense” and CALJIC No. 2.50.02 refers to “domestic violence.” In Reliford, the court held that CALJIC No. 2.50.01 correctly states the law regarding the limited purpose for which the jury may consider the prior offenses and the prosecution’s burden of proof. (Id. at pp. 1012-1013, 1016.) As the court observed in People v. Pescador (2004) 119 Cal.App.4th 252, 261 (Pescador), “[f]or the purposes of evaluating the constitutional validity of the instructions, there is no material difference between CALJIC No. 2.50.01 and CALJIC No. 2.50.02.” Relying on the analysis in Reliford, courts have held that CALJIC No. 2.50.02 meets constitutional due process requirements. (People v. Brown (2000) 77 Cal.App.4th 1324, 1335-1337; Pescador, supra, 119 Cal.App.4th at pp. 261-262.) Similarly, here, there is no significant difference between the language found constitutional in CALJIC No. 2.50.02 and the modified version of CALCRIM No. 852 given in the present case. Accordingly, we conclude that the analysis of Reliford governs, and reject defendant’s contention.
Defendant argues that Reliford is distinguishable, because the instant case does not involve either section 1108 or 1109 evidence. He asserts that both sections 1108 and 1109 are exceptions to the general rule set forth in section 1101. Defendant, however, overlooks that section 1103 is also an exception to section 1101.
E. Defense of Others Instruction (CALCRIM No. 3470)
Defendant contends that the trial court erred in failing sua sponte to instruct the jury regarding defense of others (CALCRIM No. 3470 (Defense of Others)).
Ruby testified that defendant initiated the attack by pushing him and breaking his cane. Defendant then hit him several times in the chest, and Ruby blacked out. Sheldahl got on Ruby’s back and pulled his mustache. As defendant continued to hit him, Ruby grabbed Sheldahl’s hair and pushed her. When the fight ended, Ruby realized that he had been stabbed.
“‘Even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citation.]’” (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) A trial court has a sua sponte duty to instruct on defenses when it appears that the defendant is relying on such a defense or if there is substantial evidence that supports such a defense. (People v. Barton (1995) 12 Cal.4th 186, 195.)
In the present case, defense counsel argued that this was “a classic case of self-defense and reasonable doubt,” because there was insufficient evidence that defendant instigated the attack on Ruby. Defense counsel then focused on the lack of evidence to support the charges. At one point during his argument, he stated: “In terms of the self-defense instruction and the assault charge, the People bear the burden of proving by proof beyond a reasonable doubt that this was not self-defense. And it all boils down to reasonableness. [¶] Put yourself in that situation. Consider it was dark, it was secluded, you are with a woman, she somehow got some injuries, there is a cane with -- a guy with a cane, another guy who had a knife found on him later, and you have the statements from the victim saying I was beating him up. What would you do as the male in that relationship? What is reasonable? Are you supposed to run away and retreat? Withstand your ground? Can you protect your girlfriend? Can you protect yourself?”
Defense counsel’s argument focused on the self-defense theory and reasonable doubt. In our view, a single reference to protecting Sheldahl did not indicate that defendant was relying on a defense of another theory, thereby requiring the trial court to sua sponte instruct the jury with CALCRIM No. 3470 (Defense of Others). More importantly, there was insufficient evidence to merit an instruction on this theory. Sheldahl became involved in the fight after defendant attacked Ruby. When Ruby was on top of defendant, Sheldahl got on Ruby’s back and tore off his mustache. Ruby responded by throwing Sheldahl. Ruby did not instigate an attack on Sheldahl. Thus, there was no evidence that defendant acted in her defense.
F. Instruction on Third Party Culpability
Defendant argues that he was deprived of his federal constitutional right to a fair trial when the trial court refused to instruct the jury on third party culpability. Defendant asserts that the instruction would have focused the jury’s attention on Wright’s involvement, that is, that he was the only individual found with a knife and the police did not test the knife for the presence of blood.
Defendant submitted three proposed instructions on third party culpability. The first proposed instruction stated: “If you find that a person other than the defendant committed the offense alleged in Count One, then you must find the defendant not guilty. [¶] The weight and significance of third-party culpability, if any, are matters for your determination. If after consideration of this evidence, you have a reasonable doubt that the defendant committed this offense, you must give the defendant the benefit of the doubt and find him not guilty.”
The second proposed instruction stated: “You may find evidence that a person other than the defendant committed the crime alleged in Count One. If such evidence of third-party culpability raises a reasonable doubt of defendant’s guilt as to that offense, you must find the defendant not guilty. [¶] The weight and significance of third-party culpability, if any, are matters for your determination. If after consideration of this evidence, you have a reasonable doubt that the defendant committed this offense, you must give the defendant the benefit of the doubt and find him not guilty.”
The third proposed instruction stated: “You may find evidence that a person other than the defendant committed the crime alleged in Count One. If such evidence of third-party culpability raises a reasonable doubt of defendant’s guilt as to that offense, you must find the defendant not guilty. The defendant is not required, however, to prove the other person’s guilt beyond a reasonable doubt. [¶] The weight and significance of third-party culpability, if any, are matters for your determination. If after consideration of this evidence, you have a reasonable doubt that the defendant committed this offense, you must give the defendant the benefit of the doubt and find him not guilty.”
Following argument, the trial denied the requested instructions. The trial court found: (1) the third party culpability instructions were duplicative and cumulative of other instructions; (2) the evidence of third party culpability was so thin that it did not justify pinpointing the issue; and (3) the fact that a knife was not found on defendant did not support a theory of third party culpability, because it was unclear how long after the incident defendant was searched.
The parties agree that each of the three proposed instructions constitutes a pinpoint instruction, because it directs the jury’s attention to a defense. However, “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.)
In the present case, there was insufficient evidence of third party culpability to warrant a pinpoint instruction. While Wright was in possession of a knife at the hospital, there was no evidence that Wright ever touched Ruby’s chest or abdomen. Defendant was the only person who hit these areas of Ruby’s body. The fact that defendant did not have a knife when the police searched him did not support a theory of third party culpability, because so much time had passed after the incident. Moreover, the trial court accurately instructed the jury on the prosecution’s burden of proof and the elements of assault with a deadly weapon, including the requirement that defendant must have committed the charged crime. Thus, the focus of the requested instruction was apparent from the instructions that were given. Accordingly, the trial court did not err in refusing to give the proposed instruction.
Defendant also argues that, absent the pinpoint instruction, the jury might have understood that he had the burden of proving that a third party committed the crime. There is no merit to this argument. Here, the trial court also instructed the jury pursuant to CALCRIM No. 220 that “[a] defendant in a criminal case is presumed to be innocent. [¶] This presumption requires that the People prove each element of a crime and special allegation beyond a reasonable doubt. And whenever I tell you that the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise.” Thus, the jury could not have understood that defendant had the burden of proving that a third party committed the crime.
Even assuming the trial court erred in failing to instruct on third party culpability, the error was harmless. In addition to the jury’s instructions on the prosecution’s burden of proof, “the jury knew from defense counsel’s argument the defense theory that [the third party,] not defendant, had committed the crimes. Under these circumstances, it is not reasonably probable that had the jury been given defendant’s proposed pinpoint instruction, it would have come to any different conclusion in this case.” (People v. Earp (1999) 20 Cal.4th 826, 887.)
G. Admissibility of Ruby’s Testimony Regarding Defendant’s Girlfriend
During defense counsel’s cross-examination of Ruby, he asked the following questions: “Q. Is this the woman you know as Laurie Sheldahl? [¶] A. Yes. [¶] Q. And is this the woman you know as [defendant’s] girlfriend? [¶] A. She was everybody’s girlfriend. [¶] Q. Is that what you wanted to tell me about her? [¶] A. No. [¶] Q. When you say she was everybody’s girlfriend, you mentioned earlier on direct examination that Laurie Sheldahl was [defendant’s] girlfriend or so-called girlfriend. What did you mean by that? [¶] A. I meant that he was very jealous of anybody else talking to her and that he would always keep her in a tent because he was always beating her up. [¶] [DEFENSE COUNSEL]: Your Honor, I’m going to object, move to strike. May we approach? [¶] THE COURT: All right. [¶] (A sidebar conference was held out of the hearing of the jury as follows:) [¶] [DEFENSE COUNSEL]: There has been no evidence of this ever before. This just comes out of the blue. I’m going -- [¶] THE COURT: What’s your objection? I need a legal ground. [¶] [DEFENSE COUNSEL]: Lack of foundation, 352. [¶] THE COURT: Well, the problem is you asked him what he meant when he said so-called girlfriend. He’s explaining it to you, counsel. [¶] [DEFENSE COUNSEL]: But he can’t just explain she is with a lot of different guys. [¶] THE COURT: That’s not what he is saying. He called her that because he kept her in the tent and beat her up a lot. That’s his explanation. [¶] You needed to ask the why question. What do you mean question, you are stuck with the answer. [¶] [DEFENSE COUNSEL]: Okay.”
Defendant argues that the trial court erred in failing to strike Ruby’s testimony about defendant beating Sheldahl and keeping her in a tent. However, when a party does not make a specific and timely objection at trial, the issue is forfeited on appeal. (§ 353; People v. Seijas (2005) 36 Cal.4th 291, 301.) Here, defense counsel objected to Ruby’s testimony. After the trial court stated that Ruby was explaining what he meant by the term “so-called,” defense counsel clarified that he was objecting to Ruby’s testimony that “[s]he was everybody’s girlfriend” when he stated that Ruby could not “just explain she is with a lot of different guys.” Thus, the issue has been forfeited.
Moreover, even assuming that the issue has not been forfeited, there is no merit to defendant’s contention. A defendant cannot complain of the admissibility of evidence that he or she introduced through the examination of a witness. (People v. Tennyson (1954) 127 Cal.App.2d 243, 246.)
Alternatively, defendant contends that trial counsel rendered ineffective assistance in eliciting Ruby’s testimony about defendant’s conduct towards his girlfriend.
In order to prevail on an ineffective assistance of counsel claim, the defendant must first show that “counsel’s representation fell below an objective standard of reasonableness . . . under prevailing professional norms.” (Strickland, supra, 466 U.S. at pp. 687-688.) If the defendant meets this initial burden, he or she must then establish prejudice, that is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Id. at p. 694.)
The People claim that trial counsel had a reasonable tactical explanation for asking the question, that is, to clarify the relationship between Sheldahl and defendant in order to argue his defense. There is no merit to this claim. Before trial counsel asked the question, Ruby had already identified Sheldahl as defendant’s girlfriend. There was no need for further clarification. Moreover, given that the adjective “so-called” is pejorative, there could have been no helpful or benign answer to the question of why Ruby referred to Sheldahl as defendant’s “so-called girlfriend.” A reasonably competent attorney would not have asked Ruby to explain himself.
However, defendant has failed to establish prejudice. Here, the evidence was uncontradicted that defendant instigated the attack on Ruby by breaking Ruby’s cane, pushing him, and then punching him in the chest and ribs. Though Wright and Sheldahl became involved in the dispute, defendant was the only person who touched Ruby in the area where he was stabbed, and it was after defendant and Ruby physically separated that Ruby realized that he had been stabbed. When the police interviewed defendant after the attack, he had blood on his abdomen. Defendant also had two prior felony convictions for assault with a deadly weapon and one prior conviction for battery with serious bodily injury. Based on this evidence, it is not reasonably probable that the result would have been more favorable to defendant if trial counsel had not elicited prejudicial testimony regarding defendant’s violent conduct towards his girlfriend. (Strickland, supra, 466 U.S. at p. 694.)
H. Ineffective Assistance of Counsel
Defendant also contends that he was deprived of the effective assistance of counsel, because trial counsel failed to object to two instances of prosecutorial misconduct.
In order to prevail on an ineffective assistance of counsel claim, the defendant must first show that “counsel’s representation fell below an objective standard of reasonableness . . . under prevailing professional norms.” (Strickland, supra, 466 U.S. at pp. 687-688.) If the defendant meets this initial burden, he or she must then establish prejudice, that is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Id. at p. 694.)
During his closing argument, the prosecutor stated: “What would [a] reasonable person think they had to do to protect themselves against Samuel Ruby. The same Samuel Ruby you saw labor or walk into court. [¶] 57 years old, maybe 56 at the time, height and weight, physical condition as you observed and heard about, what would they have had to do? What would they think is reasonable? This is all very difficult to translate when we don’t know what is being thought of. What we have here is the testimony of Mr. Ruby about what happened.” Defense counsel did not object. (Italics added.)
During the prosecutor’s rebuttal, he stated: “I said I was desperate to hear the reasonable interpretation of the evidence that the defendant was going to advance that would suggest innocence. In the end, what we were told, I actually wrote it down, that there is circumstantial evidence of a reasonable doubt. [¶] Well, no. That’s not what the law says. The law says you have to have circumstantial evidence of a reasonable interpretation of facts pointing to innocence. So the next step of course is, okay, ladies and gentlemen, here are the facts that point to him. I challenged him to do it and he didn’t do it. What does that tell you? [¶] If the defense cannot articulate the facts that are the basis of his reasonable interpretation for innocence, or facts -- even a reasonable interpretation of anyone else, just said a reasonable interpretation of circumstantial evidence of reasonable doubt, they don’t exist.” Defense counsel did not object.
Defendant asserts that the statement that “we don’t know what is being thought of” was an impermissible comment on his right not to testify, and thus trial counsel rendered ineffective assistance by failing to object.
In Griffin v. California (1965) 380 U.S. 609, the United States Supreme Court held that the Fifth Amendment prohibits a prosecutor from commenting, either directly or indirectly, upon the defendant’s failure to testify in his own defense. (Id. at p. 613.) Though a prosecutor is not prohibited from commenting upon testimony or evidence presented at trial, it is Griffin error “for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf.” (People v. Hughes (2002) 27 Cal.4th 287, 371.) In reviewing a defendant’s claim of Griffin error, we examine whether there is a reasonable likelihood that the jury understood the remarks, within context, to be a comment on the defendant’s failure to testify. (People v. Clair (1992) 2 Cal.4th 629, 663.)
Here, it is not reasonably likely that the jury understood the prosecutor’s statement as a comment on defendant’s failure to testify. The statement that “[t]his is all very difficult to translate when we don’t know what is being thought of” was made within the context of discussing the reasonable person standard of self-defense. This standard requires the jury to consider “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.” (CALCRIM No. 3470.) Thus, the prosecutor’s statement emphasized that the jury could not presume what defendant was thinking, but was required to consider what a reasonable person would have done in those circumstances.
In his reply brief, defendant acknowledges that the prosecutor was discussing the reasonable person standard. He focuses, however, on the prosecutor’s subsequent statements and claims that only defendant could have testified to explain his beliefs. We disagree.
The prosecutor argued: “What we have here is the testimony from Mr. Ruby about what happened. The defendant threw the first punch. [¶] Well, when you initiate, when you initiate the violence, you only have a right to self-defense, according to instruction 3471, if you try to stop fighting. You indicate to your opponent that you want to stop fighting and that you have stopped and you wait and give that opponent a chance to stop fighting. Not a shred of evidence about that. [¶] So here we have the aggressor, who this instruction says if they were the aggressor and didn’t do those things, not entitled to self-defense at all. [¶] Search your memories. If you have to, ask the court reporter later for readback. They love it when you say that. What’s the evidence that supports that claim? There is none. When [defense counsel] starts talking about self-defense, if he does, think about that. What’s his evidence? What’s his evidence the defendant reasonably believed anything? Let alone he was in imminent danger? And that he had to immediately use force as opposed to something else.” Defendant focuses on the prosecutor’s question, “What’s his evidence the defendant reasonably believed anything?” However, taken in context, this portion of the argument refers to the lack of evidence to refute the prosecution theory that a reasonable person would not have believed that he could only defend himself against an older, overweight, unarmed, physically challenged man by stabbing him. In other words, the prosecutor was challenging defense counsel to provide a reasonable interpretation of the evidence that was consistent with defendant’s innocence.
In sum, the prosecutor’s statements were appropriate comments upon the state of the evidence and did not suggest that guilt should be inferred from defendant’s failure to testify. Thus, we conclude that there was no error under Griffin, and trial counsel did not render ineffective assistance by failing to object to these statements.
Defendant next argues that the prosecutor committed misconduct by shifting the burden of proof and the presumption of innocence to him. He focuses on the prosecutor’s statements that the defense had to have “circumstantial evidence of a reasonable interpretation of facts pointing to innocence” and that the defense failed to “articulate the facts that are the basis of his reasonable interpretation for innocence.” The People argue that the prosecutor “merely commented on defense counsel’s failure to point to facts in the record that supported [defendant’s] theory of self defense.”
In People v. Hill (1998) 17 Cal.4th 800, the prosecutor referred to the reasonable doubt standard, and stated that “‘it must be reasonable. It’s not all possible doubt. Actually, very simply, it means, you know, you have to have a reason for this doubt. There has to be some evidence on which to base a doubt.’” (Id. at p. 831.) When defense counsel objected that the prosecutor was “‘putting the burden on me,’” the trial court overruled the objection, stating “‘No, that’s not. That’s your interpretation of it.’” (Ibid.) The prosecutor then continued, “‘There must be some evidence from which there is a reason for doubt. You can’t say, well, one of the attorneys said so.’” (Ibid.) The California Supreme Court found the comments “somewhat ambiguous,” but concluded that the prosecutor committed misconduct “insofar as her statements could reasonably be interpreted as suggesting to the jury she did not have the burden of proving every element of the crimes charged beyond a reasonable doubt. [Citations.] Further, to the extent [the prosecutor] was claiming there must be some affirmative evidence demonstrating a reasonable doubt, she was mistaken as to the law, for the jury may simply not be persuaded by the prosecution evidence. [Citation.] On the other hand, [the prosecutor] may simply have been exhorting the jury to consider the evidence presented, and not attorney argument, before making up its mind.” (Id. at pp. 831-832.) Though recognizing that the issue was close, the court concluded that the jury understood the prosecutor’s comments “to mean defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt.” (Id. at p. 832.)
Similarly, here, the prosecutor committed misconduct under Hill by suggesting that defendant was required to produce any evidence pointing to innocence. Thus, trial counsel failed to act as a reasonably competent attorney when he failed to object to the prosecutor’s statements.
However, it is not reasonably probable that the result would have been more favorable to defendant if trial counsel had objected and the trial court had stricken the comments. (Strickland, supra, 466 U.S. at p. 694.) In the present case, the trial court instructed the jury that it must follow the law as explained by the court, and that if the attorneys’ comments conflicted with the trial court’s instructions, the jury was required to follow the trial court’s instructions. The trial court then correctly instructed the jury on the presumption of innocence and the People’s burden of proof in general. The jury was also specifically instructed: “Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.” Moreover, the jury was instructed that the People had “the burden of proving beyond a reasonable doubt that defendant did not act in lawful self-defense.” Absent any contrary indications, we must presume that the jury followed the trial court’s instructions rather than the prosecutor’s statements. (See People v. Pinholster (1992) 1 Cal.4th 865, 919; see also People v. Mayfield (1993) 5 Cal.4th 142, 179 [“‘We presume that jurors treat 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’”].) Accordingly, there was no prejudice to defendant.
I. Cumulative Error
Defendant contends that the cumulative impact of the errors in this case deprived him of a fair trial and due process of law. “Under the ‘cumulative error’ doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial.” (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) We have found that trial counsel did not act as a reasonably competent counsel when he elicited evidence of defendant’s violent conduct towards Sheldahl and failed to object to prosecutorial misconduct. However, after careful review of the entire record, we conclude that, even when considering the effect of these errors together, there was no prejudice to defendant.
III. Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Premo, J.