Opinion
F077723
06-19-2020
THE PEOPLE, Plaintiff and Respondent, v. ROGER EARL BROWN, Defendant and Appellant.
Thomas P. Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. PCF353074)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Michael B. Sheltzer, Judge. Thomas P. Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
At the conclusion of a jury trial, defendant Roger Earl Brown was convicted of assault by means likely to produce great bodily injury and possession of a dirk or dagger. On appeal, he contends (1) the trial court erred in failing to instruct the jury on self- defense, (2) defense counsel was ineffective in failing to object to the prosecutor's misstatement of law relating to self-defense, (3) these two errors cumulatively violated his right to due process, (4) the trial court abused its discretion when it refused to dismiss or strike the prior "strike" conviction allegation, and (5) in light of Senate Bill No. 1393, the matter should be remanded to permit the trial court to exercise its discretion to strike the prior serious felony conviction enhancement. We affirm.
STATEMENT OF THE CASE
On February 21, 2018, the Tulare County District Attorney charged Brown with attempted murder (Pen. Code, §§ 187, 664; count 1), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 2), and carrying a concealed dirk or dagger (§ 21310; count 3). As to counts 1 and 2, the information alleged Brown personally used a deadly weapon (§ 12022, subd. (b)(1)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). As to all counts, the information alleged Brown had suffered three prior strike convictions within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), had suffered three prior serious felony convictions (§ 667, subd. (a)), and had served one prior prison term (§ 667.5, subd. (b)). The information further alleged Brown was ineligible for probation because he had suffered eight prior felony convictions (§ 1203, subd. (e)(4)).)
Undesignated statutory references are to the Penal Code.
Jury trial began on April 17, 2018. On April 23, 2018, the jury found Brown not guilty of attempted murder, but guilty of assault by means of force likely to produce great bodily injury and carrying a concealed dirk or dagger. As to the assault charge, the jury found true the special allegation Brown personally used a deadly weapon in the commission of the assault, but found not true the allegation he personally inflicted great bodily injury.
On April 24, 2018, in a bifurcated proceeding, the court found true the allegations Brown had suffered one prior strike conviction, had suffered one prior serious felony conviction, and had served one prior prison term. The court found he was ineligible for probation because he had suffered three prior felony convictions.
In a written request filed on February 7, 2018, and again at sentencing on June 11, 2018, Brown requested that the trial court exercise its discretion to strike his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The trial court acknowledged it had the discretion to strike the prior strike conviction but declined to do so.
On the same date, the trial court sentenced Brown to 13 years in prison as follows: on count 2, eight years (the aggravated term of four years, doubled due to the prior strike conviction), plus a five-year prior serious felony enhancement; and on count 3, four years (the middle term sentence of two years, doubled due to the prior strike conviction), to be served concurrently with the term imposed on count 2, plus a stayed one-year prior prison term enhancement.
Brown filed a notice of appeal on June 22, 2018.
FACTS
The Victim
Brown and the victim, R.S., were both homeless and lived near each other on the Tule River in Porterville. At trial, R.S. testified he had been stabbed, but he was not sure of the day or month the stabbing took place, the location of the stabbing, or who stabbed him. He had been drinking beer on the day he was stabbed and had blacked out. He was not sure whether he blacked out because he was stabbed or because of the alcohol.
R.S. knew Brown and testified they drank together on several occasions. However, R.S. did not know if he and Brown were drinking together on the day he was stabbed. R.S. did not think he was "hanging out" with anyone prior to getting stabbed. The last thing R.S. remembered was leaving his mother's house and walking home. He then blacked out. The next thing he knew, he was outside of a store on the corner of Orange and Main Streets where paramedics were treating him. Then he blacked out again. His next memory was of waking up in the Visalia Trauma Center and being told he had been stabbed. R.S.'s stab wound was treated with surgical staples at the hospital, and he was discharged from the hospital later that night.
R.S. testified he remembered an officer interviewing him at the hospital, but did not remember telling the officer, "[Brown] just freaked out I guess." R.S. did not remember the officer asking who stabbed him, and he did not remember telling the officer that Brown stabbed him.
R.S. did not have any "ill feelings toward [Brown]" after the stabbing. R.S. and Brown were still friends, and R.S. did not want Brown to get in trouble.
The Witnesses to the Fight
V.L.
On July 3, 2017, V.L. was arriving at his uncle's house in Porterville when he saw Brown and R.S. fist fighting. They were speaking to each other aggressively. V.L. did not know which man started the fight. When V.L. first saw them fighting, Brown was wearing a shirt and R.S. was not. The men were punching and pushing each other. R.S. was behaving aggressively toward Brown. Both men were yelling at each other, but V.L. could not understand what they were saying because they were speaking English and he only spoke Spanish. Neither man backed away from the fist fight until Brown swung a knife at and cut R.S. After R.S. was cut, he backed away. As he did so, Brown thrust the knife at him between two and four times, but V.L. thought none of those thrusts made contact with R.S.
All further dates refer to the year 2017 unless otherwise stated.
At some point after Brown cut R.S., V.L. heard breaking glass and saw that Brown was holding the remnants of a broken bottle in one hand and the knife in the other. V.L. inferred that Brown had broken the bottle over R.S.'s head because there was blood on the left side of his forehead. V.L. never saw R.S. with a weapon. The two men then separated and Brown walked away. R.S. followed in the same direction. Brown and R.S. both walked to the corner store, still talking back and forth.
Y.R.
Y.R. also witnessed part of the fight after V.L. (who was related to her through marriage) came inside her house and told her what was happening. She went outside with him and heard men screaming. She called the police as she witnessed the fight in progress. She saw and heard Brown, who was wearing a shirt, and R.S., who was not, shouting at each other. Y.R. heard Brown say to R.S., "I hope you die, mother fucker. I should have stabbed you more." R.S. yelled violent things at Brown but Y.R. did not remember the exact words of the statements.
Y.R. noticed R.S. was bigger than Brown, but Brown was holding a knife. Y.R. did not see R.S. get cut, or any contact or physical violence between the two men, but she saw a wound bleeding on R.S.'s chest and Brown holding a knife. Y.R. testified that after she saw the cut on R.S.'s chest, she saw R.S. move toward Brown and shout bad words as Brown held the knife. Although Brown was close enough to cut R.S., Y.R. did not see Brown attempt to do so. Y.R. did not see any injury to or any bleeding from R.S.'s head. She did not see Brown holding anything other than the knife and she did not hear any glass breaking, although she did see some broken glass on the ground near the men. V.L. never said anything to her about a glass bottle.
After the fighting stopped, R.S. and Brown both walked toward the corner store.
The Police Response at the Scene
Police Officer Lancelot Kirk responded to a call reporting a stabbing. As he approached the call address, he observed R.S., whom he believed to be the victim, at the intersection of Orange and Main Streets. Kirk approached R.S. and saw that he had visible wounds and appeared to have been stabbed. Medical personnel soon arrived to transport R.S. to the hospital.
At roughly the same time, officers found Brown across the street from R.S. and the corner store, also at the intersection of Orange and Main Streets. Brown was taken into custody and searched. The search revealed two knives, a kitchen knife and a pocketknife. R.S.'s Interview
Police Officer Darin Cardoza responded to Kaweah Delta Hospital where R.S. was being treated. Cardoza testified that R.S. had been treated for three lacerations to his abdomen and one to his chest. Cardoza did not see any wounds on R.S.'s head, forehead, or face. R.S. was very intoxicated and was uncooperative. Cardoza had some difficulty understanding what R.S. was saying because he was so intoxicated.
Cardoza asked R.S. whether he had been shot or stabbed. R.S. responded that he had been shot or stabbed but did not recall which. R.S. told Cardoza, "If I ever see him again, I am going to beat his ass." But R.S. did not identify who he was talking about. Eventually, R.S. mentioned the name Roger and said, "Roger just went nuts." Cardoza asked if Roger stabbed him and R.S. said yes. R.S. then refused to tell Cardoza any of the details of the altercation, including how it started, how long it lasted, or who the initial aggressor was.
Brown's Interview
Meanwhile, Police Officer Oscar Vargas interviewed Brown, who was visibly intoxicated. He was disoriented, smelled of alcohol, and had slurred speech, watery eyes, and an unsteady gait. Brown told Vargas he had consumed about six alcoholic beverages before he was arrested. Vargas asked Brown about the stabbing and Brown denied knowing anything about it. However, Brown acknowledged he knew R.S. and they were both homeless.
Vargas asked Brown about the two knives found in his possession at the time of his arrest. Brown said he carried them for protection.
The Medical Records
With the parties' agreement, the trial court admitted R.S.'s medical records. No testimony was offered regarding those records.
DISCUSSION
I. Self-Defense Instructions for the Assault Charge
Brown contends the trial court erred in (1) failing to orally instruct the jury with CALCRIM No. 3470 on self-defense for the assault charge and (2) failing to include in either the oral or written self-defense instructions the optional paragraph on a defendant's limited right to pursue an assailant in self-defense (the pursuit paragraph). Brown argues that the failure to orally instruct with CALCRIM No. 3470 and the failure to instruct with the pursuit paragraph deprived him of the ability to present his defense and lessened the prosecutor's burden to prove he did not act in self-defense.
The pursuit paragraph is an optional paragraph of CALCRIM No. 3470, but we refer to them separately for clarity.
The People respond that Brown forfeited the first claim when he failed to object when the trial court omitted the oral instruction, and the second claim when he failed to request instruction with the pursuit paragraph. The People further argue there was nevertheless insufficient evidence at trial to warrant either the self-defense instruction or the pursuit paragraph. Alternatively, they argue, even if the self-defense instruction and the pursuit paragraph were warranted by the evidence, any failure to instruct was harmless.
We will address the claims on the merits and conclude the following: (1) CALCRIM No. 3470 was warranted by the evidence; (2) the pursuit paragraph was not warranted by the evidence; (3) the failure to orally instruct with CALCRIM No. 3470 was not error in light of all of the other instructions given, even if the failure to orally instruct amounted to a complete failure to instruct with CALCRIM No. 3470; and (4) the failure to instruct with the pursuit paragraph was not error in light of all of the other instructions given, even if the pursuit paragraph was warranted by the evidence.
A. Background
During discussions on jury instructions, Brown requested, and the trial court agreed to provide, CALCRIM No. 3470, the instruction on a defendant's right to self-defense in a non-homicide situation. At the end of trial, however, the court failed to read CALCRIM No. 3470 to the jury, and Brown did not object. That instruction reads as follows:
"Self-defense is a defense to Assault by Means of Force Likely to Produce Great Bodily Injury. The defendant is not guilty of that crime 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.
"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 bodily injury to himself or an imminent danger that he would be touched unlawfully. Defendant's belief must have been reasonable and he must have acted because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful self-defense.
"When deciding whether the defendant's 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 People have the burden of proving beyond a reasonable doubt that the 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 by Means of Force Likely to Produce Great Bodily Injury."
This written instruction did not, however, contain the following optional pursuit paragraph contained in the model instruction:
"A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of [bodily injury] has passed. This is so even if safety could have been achieved by retreating." (CALCRIM No. 3470.)
The trial court did give the jury a similar instruction from the self-defense for non-homicide offense series, CALCRIM No. 3474: "The right to use force in self-defense continues only as long as the danger exists or reasonably appears to exist. When the attacker withdraws, then the right to use force ends." The court also instructed that it was the prosecutor's burden to prove beyond a reasonable doubt that "defendant did not act in self-defense." (CALCRIM Nos. 875 ["the People must prove that ... defendant did not act in self-defense"], 220 ["Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt ...."].)
B. Legal Framework
" ' "It is settled that in criminal cases, 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. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." ' " (People v. Breverman (1998) 19 Cal.4th 142, 154.) A trial court has a duty to instruct sua sponte on any defense "for which the record contains substantial evidence ... unless the defense is inconsistent with the defendant's theory of the case." (People v. Salas (2006) 37 Cal.4th 967, 982; see People v. Sedeno (1974) 10 Cal.3d 703, 716, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12.) When a party requests a legally correct instruction, the trial court must give the instruction unless it is argumentative, duplicative of other instructions, or not supported by substantial evidence. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99; People v. Lucas (2014) 60 Cal.4th 153, 285, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.) " ' "Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." ' " (People v. Cunningham (2001) 25 Cal.4th 926, 1008 (Cunningham).)
A trial court's obligation to give general instructions sua sponte does not extend to "pinpoint" instructions or optional paragraphs of instructions. (People v. Whalen (2013) 56 Cal.4th 1, 81-82 (Whalen), disapproved on other grounds in People v. Romero and Self (2015) 62 Cal.4th 1, 44, fn. 17; People v. Anderson (2011) 51 Cal.4th 989, 996-997 [" ' "[W]hen a defendant presents evidence to attempt to negate or rebut the prosecution's proof of an element of the offense, a defendant is not presenting a special defense invoking sua sponte instructional duties. While a court may well have a duty to give a 'pinpoint' instruction relating such evidence to the elements of the offense and to the jury's duty to acquit if the evidence produces a reasonable doubt, such 'pinpoint' instructions are not required to be given sua sponte and must be given only upon request." ' "]; People v. Lawley (2002) 27 Cal.4th 102, 160-161.) "A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." (People v. Lang (1989) 49 Cal.3d 991, 1024, abrogated on another ground in People v. Diaz (2015) 60 Cal.4th 1176, 1190.)
We review claims of instructional error de novo. (People v. Rivera (2019) 7 Cal.5th 306, 326 (Rivera).) In doing so, we are required to review the evidentiary support for giving an instruction " 'in the light most favorable to the defendant' [citation] and ... resolve doubts as to the sufficiency of the evidence to warrant instructions 'in favor of the accused.' " (People v. Wright (2015) 242 Cal.App.4th 1461, 1483 (Wright); see People v. Enriquez (1977) 19 Cal.3d 211, 228 (Enriquez), overruled on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901.) We consider the failure to give an instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instructions given in a manner inconsistent with the law. (See Rivera, at p. 326; People v. Mason (2013) 218 Cal.App.4th 818, 825 (Mason); People v. Burgener (1986) 41 Cal.3d 505, 538 [" 'The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole' "], disapproved on another ground in People v. Reyes (1998) 19 Cal.4th 743, 756; People v. Chavez (1985) 39 Cal.3d 823, 830 ["we must look to the entire charge, rather than merely one part, to determine whether error occurred"].) In doing so, we assume that " ' "jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." ' " (People v. Castaneda (2011) 51 Cal.4th 1292, 1321.) "Where reasonably possible, we interpret the instructions ' "to support the judgment rather than to defeat it." ' " (Mason, at p. 825.)
C. Forfeiture
As the People point out, Brown failed to object to both alleged instructional errors. We will nevertheless address both claims on their merits, as we explain here.
First, as for Brown's failure to object when the trial court did not orally instruct with CALCRIM No. 3470, the ordinary rule is he was required to object to preserve the issue for appeal. (People v. Bolin (1998) 18 Cal.4th 297, 326.) But Brown contends the court's failure to orally instruct with CALCRIM No. 3470 lessened the prosecution's burden to prove he did not act in self-defense—an element of the assault offense—and thus the instruction affected his substantial rights and we may review the claim despite his failure to object below. We agree. (See §§ 245, 1259 ["The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby."]; People v. Hillhouse (2002) 27 Cal.4th 469, 503 [instructions regarding elements of the crime affect the defendant's substantial rights and require no objection for review]; People v. Mackey (2015) 233 Cal.App.4th 32, 106 [" 'a defendant need not object to preserve a challenge to an instruction that incorrectly states the law and affects his or her substantial rights' "].)
Second, as for Brown's failure to request the optional pursuit paragraph, a trial court has no sua sponte duty to instruct the jury on optional paragraphs of instructions, and a defendant's " 'failure to request clarification [or supplementation] of an otherwise correct instruction forfeits the claim of error for purposes of appeal ....' " (Whalen, supra, 56 Cal.4th at pp. 81-82.) Thus, Brown's claim that the trial court erred in failing to instruct with the pursuit paragraph is forfeited. However, because he argues in the alternative that defense counsel's failure to request the pursuit paragraph was ineffective assistance of counsel, we address the issue on the merits. (See People v. Jennings (2010) 50 Cal.4th 616, 667, fn. 19.)
D. Evidence Supporting CALCRIM No. 3470 and the Pursuit Paragraph
1. CALCRIM No. 3470
The People raise the threshold issue of whether CALCRIM No. 3470, the self-defense instruction for the assault charge, was warranted at all. They argue the evidence did not warrant the instruction and thus Brown's claim of error is meritless. Although it is a close question, we disagree. As we explain, when we view the evidence presented at trial in the light most favorable to defendant, we conclude instruction with CALCRIM No. 3470 was warranted. (Wright, supra, 242 Cal.App.4th at p. 1483.)
The People argue the evidence showed Brown was not acting in self-defense because he used a knife against an unarmed opponent. It is true that in the ordinary case, "an assault [with fists] does not justify the use of a deadly weapon in self-defense." (Enriquez, supra, 19 Cal.3d at p. 228; see 1 Witkin, Cal. Criminal Law (4th ed. 2019) Defenses, § 75.) However, use of a weapon in defense of an assault with fists does not necessarily preclude a finding that a defendant acted in reasonable self-defense. If the victim poses such a significant physical threat that the defendant has reason to fear great bodily injury, he may be justified in using a weapon in self-defense. (People v. Jackson (1965) 233 Cal.App.2d 639, 641 (Jackson) [the defendant was entitled to self-defense instructions when he used a knife to defend himself against the assault with fists of a younger, larger man]; People v. Hood (1969) 1 Cal.3d 444, 451; see People v. Clark (1982) 130 Cal.App.3d 371, 380-381 [the defendant was not justified in using deadly force to repel an unarmed attacker who was not so physically overwhelming that the defendant had good reason to fear great bodily injury], overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 92.)
Here, we believe that, even though Brown used a knife against R.S., the evidence, viewed in the light most favorable to Brown, was sufficient to persuade a jury that he acted in self-defense. (See Cunningham, supra, 25 Cal.4th at p. 1008 [" ' "Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." ' "].) There was evidence R.S. behaved aggressively Brown both before and after Brown cut him. The prosecutor asked V.L. whether R.S. "ma[d]e any movements toward [Brown.]" V.L. responded: "After [Brown] cut [R.S.], no." From this statement, the jury could reasonably infer R.S. did move toward Brown before Brown cut him. In addition, Y.R. testified that after R.S. had been cut on his chest, he moved toward Brown while shouting. Y.R. also testified that R.S. was bigger than Brown. The jury had the opportunity to observe R.S. and Brown at trial, and had before them a copy of R.S.'s identification card showing his height and weight. Based on that evidence, defense counsel argued that R.S. was "younger, bigger, and stronger" than Brown. The jury also heard testimony that while he was intoxicated on the night of the fight, R.S. told Cardoza he was going to "beat his ass" if he ever saw him again—which likely referred to Brown. In addition, the jury heard Brown's statement to Vargas at the time of his arrest that he was carrying knives for his protection. Defense counsel argued R.S. could have been trying to beat Brown up when Brown cut him in self-defense. Finally, the jury saw R.S.'s medical records, heard testimony regarding his injuries, and heard testimony that Brown and R.S. stood next to each other at one point and Brown did not attempt to harm him. Based on this evidence, defense counsel argued Brown did not use more force than was necessary to repel R.S.: "[R.S.] ... was right next to him and he could have plunged that knife right into him if he wanted to but he didn't ...."
The People acknowledge R.S. moved toward Brown before Brown cut him.
In total, viewing the evidence in the light most favorable to Brown, we conclude there was substantial evidence to support a self-defense theory that R.S. behaved aggressively toward Brown before and after Brown cut him; that R.S. was getting the better of Brown in the fight because he was younger, bigger, and stronger; and that Brown used the knife with some restraint to fend R.S. off, causing him only relatively minor wounds. This evidence was sufficient to merit the jury's consideration as to whether Brown reasonably believed he was in danger of suffering serious bodily injury and whether he used no more force than reasonably necessary to defend himself. Furthermore, the record clearly demonstrates Brown was relying on a self-defense theory. For these reasons, instruction with CALCRIM No. 3470 was warranted.
2. The Pursuit Paragraph
The People also argue instruction with the pursuit paragraph was unwarranted because "there was no evidence that [Brown's] pursuit of [R.S.] was reasonable or necessary." Brown does not directly respond. Instead, he contends, in the abstract, that an armed defendant is not necessarily precluded from pursuing an unarmed assailant, and the failure to so instruct the jury deprived him of his right to self-defense. We conclude the pursuit paragraph was not warranted because no evidence was presented from which a reasonable jury could conclude Brown's pursuit of R.S. was reasonably necessary to prevent imminent great bodily injury.
As previously noted, a defendant's right to defend himself with a weapon against an unarmed attacker is available only in limited situations. (E.g., Jackson, supra, 233 Cal.App.2d at pp. 641-642 [use of a weapon in self-defense against a younger and larger assailant].) Moreover, for a defendant armed with a weapon to be justified in pursuing an unarmed assailant in self-defense, the pursuit must appear reasonably necessary to protect against imminent great bodily injury. (People v. Hecker (1895) 109 Cal. 451, 462-463 (Hecker); see People v. Collins (1961) 189 Cal.App.2d 575, 588-589 (Collins) [where "a reasonable man, is justified in believing that his assailant intends to commit a felony upon him, he has a right in defense of his person to use all force necessary to repel the assault; he is not bound to retreat"; "he may pursue his assailant until he has secured himself from danger if that course likewise appears reasonably necessary"]; People v. Gleghorn (1987) 193 Cal.App.3d 196, 201-202 (Gleghorn); In re Christian S. (1994) 7 Cal.4th 768, 783 ["[f]ear of future harm—no matter how great the fear and how great the likelihood of the harm" is insufficient to justify use of force in self-defense].) The right to defend, and thus the right to pursue, terminates when the unarmed assailant ceases the attack and withdraws or otherwise no longer reasonably appears to pose an imminent threat of great bodily injury. (See People v. Evans (1969) 2 Cal.App.3d 877, 882 [even if the defendant had a right to self-defense when he first used a knife against the unarmed assailant, the right terminated when the assailant fled and defendant pursued]; People v. Keys (1944) 62 Cal.App.2d 903, 916 ["when the attacker has withdrawn from the combat, the defendant is not justified in pursuing him further and killing him, because the danger is not then imminent, and there is no apparent necessity to kill to prevent the death of or serious bodily injury to the defendant"]; Gleghorn, supra, 193 Cal.App.3d at p. 202 ["[i]f a person attacked defends himself so successfully that his attacker is rendered incapable of inflicting injury, or for any other reason the danger no longer exists, there is no justification for further retaliation"].)
"Where one, without fault, is placed under circumstances sufficient to excite the fears of a reasonable person that another designs to commit a felony or some great bodily injury upon him, and to afford grounds for reasonable belief that there is imminent danger of the accomplishment of this design, he may, acting under these fears alone, slay his assailant and be justified by the appearances; and as, where the attack is sudden and the danger imminent, he may increase his peril by retreat, so situated he may stand his ground, that becoming his "wall," and slay his aggressor even if it be proved that he might more easily have gained his safety by flight. [Citations.] So, too, under such circumstances, he may pursue and slay his adversary. But the pursuit must not be in revenge, not after the necessity for defense has ceased, but must be prosecuted in good faith to the sole end of winning his safety and securing his life." (Hecker, supra, 109 Cal. at pp. 462-463, italics added.)
In this case, even when viewed in the light most favorable to Brown, the only evidence supporting the conclusion that Brown pursued R.S. was V.L's testimony that Brown stabbed at R.S. as R.S. backed away after the initial cut. There was no evidence, however, to support a finding that Brown's pursuit of R.S. was reasonably necessary to protect Brown from an imminent danger of great bodily injury from R.S., who was unarmed, backing away, and no longer fighting back. On the contrary, V.L. testified that R.S. "was just trying to avoid getting hit or hurt any further." At this point, the defense theory that Brown reasonably believed R.S. would cause him great bodily injury because R.S. was bigger and strong and getting the better of him no longer applied. Indeed, Brown's own statements to R.S. after cutting him were inconsistent with a belief that R.S. posed a risk of harm to him. Brown told him, "I am going to kill you mother fucker," and "I hope you die, mother fucker[,] I should have stabbed you more." These statements suggested any pursuit of R.S. was for a purpose other than self-defense.
Accordingly, assuming Brown did pursue R.S. after the first cut, we conclude no reasonable jury could have found his pursuit was reasonably necessary to prevent an imminent risk of great bodily injury. Thus, the evidence did not warrant instruction with the pursuit paragraph.
E. Failure to Orally Instruct with CALCRIM No. 3470
Brown suggests the trial court's failure to orally instruct the jury with CALCRIM No. 3470 amounted to a complete failure to give this instruction. The People argue that any error was harmless because the jury received the written instruction, the prosecutor urged the jury to read the instruction for themselves, and the prosecutor and defense counsel both thoroughly addressed self-defense. From our review of the record, however, there is insufficient evidence to support the argument that the jury received the written version of CALCRIM 3470. We conclude that even the complete failure to orally instruct with CALCRIM No. 3470 was not error when considered in light of all of the instructions given.
F. Sufficiency of the Self-Defense Instructions as a Whole
1. CALCRIM No. 3470
Considering the instructions as a whole, we believe the instructions orally given were sufficient to explain the prosecutor's burden to prove Brown did not act in self-defense. The trial court's instructions to the jury explained that for Brown to be guilty of the assault charge, the prosecutor was required to prove beyond a reasonable doubt that "defendant did not act in self-defense." (CALCRIM Nos. 220, 875, 915) In the context of the attempted murder charge, the court instructed that "[t]he defendant is not guilty...if he was justified in attempting to kill someone in self-defense." (CALCRIM No. 505.) The balance of this instruction largely mirrored CALCRIM No. 3470. The court further instructed that, in order to have acted in self-defense, "defendant [was permitted] only ... to use that amount of force that a reasonable person would [have] believe[d] ... necessary in the same situation." (Ibid.) "The right to self-defense continue[d] only as long as the danger exist[ed] or reasonably appear[ed] to [have] exist[ed]. When the attacker withdr[ew], ... the right to use force end[ed]." (CALCRIM No. 3474.) The jury was permitted to consider whether "[R.S.] spoke or acted in a way that threatened [Brown] with immediate harm ... in deciding whether ... defendant acted in self-defense." (CALCRIM No. 917.)
Together, these instructions correctly conveyed the law of self-defense. (See People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065 [use of force in self-defense must be in response to "imminent" threat of bodily injury and must be "limited to such force as is reasonable under the circumstances"]; People v. Jackson (2014) 58 Cal.4th 724, 769.) Viewing the instructions as a whole, even without considering the omitted CALCRIM No. 3470 instruction, we conclude there is no reasonable likelihood the jury believed the prosecutor was not required to prove beyond a reasonable doubt that Brown did not act in self-defense to find him guilty of assault.
2. The Pursuit Paragraph
As for the pursuit paragraph, we note that even if the evidence warranted it, the instructions as given were sufficient to encompass the concept of a defendant's right to pursue an assailant in self-defense. The jury was correctly instructed that a defendant was permitted to use the amount of force a reasonable person would have believed to be necessary to defend against an attack. (CALCRIM No. 505; Hecker, supra, 109 Cal. at pp. 462-463.) The jury was also instructed that a defendant's right to use force continued until the danger no longer existed or no longer reasonably appeared to exist. (CALCRIM No. 3474; see Collins, supra, 189 Cal.App.2d at pp. 588-589 From these instructions, a reasonable jury could determine whether a defendant acted in self-defense by pursuing an assailant if such pursuit was reasonably necessary to defend against an attack—the essence of the pursuit paragraph. Thus, the jury was given sufficient instructions to understand Brown's limited right to pursue in self-defense.
3. Conclusion
In light of all of the instructions given, the partial or complete failure of the trial court to instruct the jury with CALCRIM No. 3470 and the pursuit paragraph was not error because there is no reasonable likelihood the jury erroneously applied the law. Since we find no error, we also conclude defense counsel was not ineffective in failing to object to the failure of the trial court to read CALCRIM No. 3470 or instruct with the pursuit paragraph. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1126 (Rodrigues) [if the defendant fails to show either deficient performance or prejudice, the ineffective assistance claim fails].)
II. Ineffective Assistance of Counsel
Brown next contends defense counsel was ineffective for failing to object when the prosecutor misstated the law during closing argument by stating that Brown's right to self-defense could not have continued after the first cut because he was pursuing R.S. as R.S. backed away. Brown asserts that this misstatement lowered the prosecution's burden of proving he was not acting in self-defense by informing the jury that a pursuing defendant cannot, as a matter of law, act in self-defense. The resulting prejudice was compounded, Brown argues, because the jury was not instructed with the pursuit paragraph.
The People respond that the prosecutor's statements were a proper factual argument based on the evidence in this case, and his references to the law of self-defense were not incorrect because there was no evidence that Brown was entitled to pursue R.S. or that doing so was reasonable under the circumstances. Thus, the People maintain the argument was proper and defense counsel had no basis to object.
We find no prosecutorial misconduct and therefore find that defense counsel was not ineffective in failing to object.
A. Additional Background
The prosecutor argued the following in his closing argument:
"Now, I am going to go through several what I am going to call Defense's half-truths. Several of the things that the Defense counsel brought up in their closing, they started with a fact that was true and then drew a conclusion that was not true.
"So first, we don't know how the fight started[,] true, so we can't know if either person was acting in self-defense. Not true. That is false. How do we know that [Brown] was not acting in self-defense?
"Well, first off, you heard from the witness, [V.L.]. He saw [Brown] stab [R.S.]. Now if that was all we had, sure, you don't know what came before and you don't know what led to it. But what happens after the stabbing? [R.S.] starts backing away and [Brown] keeps stabbing him three more times. That's not self-defense.
"Self-defense, and if you look at the instruction you will see this, ends. The right to self-defense ends when the threat[] ends. So even if we for a second assume that [R.S.] posed such a danger to [Brown] that he was justified in using lethal force which he was not, a fist[ ]fight where no one seems to be suffering any serious injury, using a knife to stab someone four times is not a proportional force, that is not [the] least force necessary or reasonably necessary to repel its act.
"But assume again for a second that the first stab was somehow self-defense. None of the other stabs were because each and every one of those stabs occurred as [R.S.] was backing up. There was no reason for that. Other than that[] [Brown] wanted to kill him." (Italics added.)
Later in the argument, the prosecutor reiterated the same point:
"[Brown] stabbed [R.S.] multiple times. You have no doubt that—you have no reasonable doubt that [R.S.] was backing away or [R.S.] was not backing away at that point because that's the uncontradicted testimony in this case. [V.L.] has no reason to make that up or lie to you. You have no reasonable doubt that [Brown] continued to try to stab him.
"There's only one reasonable inference you can draw from all those facts. It's [Brown] who was trying to kill [R.S.] and that wasn't self-defense because once [R.S.] starts backing away, he is done, his role in the fight is over, but [Brown's] role isn't over. He keeps trying to kill [R.S.]." (Italics added.)
B. Legal Framework
"In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel's performance was deficient and that the defendant suffered prejudice as a result of such deficient performance. [Citation.] To demonstrate deficient performance, defendant bears the burden of showing that counsel's performance 'fell below an objective standard of reasonableness ... under prevailing professional norms.' [Citation.] To demonstrate prejudice, defendant bears the burden of showing a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mickel (2016) 2 Cal.5th 181, 198; Strickland v. Washington (1984) 466 U.S. 668, 694.) "If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails. Moreover, ' " a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." ' " (Rodrigues, supra, 8 Cal.4th at p. 1126.)
"A prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence." (People v. Ledesma (2006) 39 Cal.4th 641, 726.) That latitude, however, does not extend to making misrepresentations. " '[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.' " (People v. Hill (1998) 17 Cal.4th 800, 829, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) A prosecutor's argument also constitutes misconduct under California law if it involves "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." (People v. Strickland (1974) 11 Cal.3d 946, 955.)
In deciding whether misconduct has occurred, we evaluate the prosecutor's comments "in the context of the argument as a whole." (People v. Dennis (1998) 17 Cal.4th 468, 522.) " 'In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' " (People v. Brown (2003) 31 Cal.4th 518, 553-554.) "[E]ven otherwise prejudicial prosecutorial argument[s], when made within proper limits in rebuttal to arguments of defense counsel, do not constitute misconduct." (People v. McDaniel (1976) 16 Cal.3d 156, 177.)
C. Analysis
Here, we view the prosecutor's statements as fair comment on the evidence. The thrust of the prosecutor's argument was that Brown's use of force was unreasonable and continued after any threat by R.S. had abated. The prosecutor's argument appears to have been in response to defense counsel's closing argument that Brown used the stabs after the initial cut to "back [R.S.] off." Defense counsel further argued that the minor nature of R.S.'s wounds showed the force Brown used was reasonable because he "was right next to [R.S.] and he could have plunged that knife right into him if he wanted to but he didn't." The prosecutor and defense counsel both argued their interpretations of the evidence to the jury regarding whether Brown's use of the knife against R.S. as he was backing away was a reasonable use of force and whether R.S. still posed a danger to Brown at that time. In so arguing, the prosecutor properly discussed the evidence and the inferences that may have been drawn from it.
Moreover, the prosecutor's legal argument did not contain misstatements and was not misleading. The prosecutor commented that, by advancing toward and stabbing R.S. as he retreated, Brown was not acting in self-defense because R.S. had withdrawn from the fight. That statement was not inconsistent with the law. As we have explained, "[t]he right to use force [in self-defense] continues only as long as the danger exists or reasonably appears to exist. When the attacker withdraws ... then the right to use force ends." (CALCRIM No. 3474; accord Hecker, supra, 109 Cal. at pp. 462-463; People v. Clark (2011) 201 Cal.App.4th 235, 250.) Accordingly, a defendant bearing a weapon cannot pursue an assailant in self-defense unless the pursuit appears reasonably necessary to prevent imminent great bodily injury. (Hecker, at pp. 462-463; Collins, supra, 189 Cal.App.2d at pp. 588-589.)
In this case, the prosecutor did not represent that the law prohibited a defendant from pursuing an attacker if reasonably necessary to prevent great bodily injury. Instead, the prosecutor asked the jury to draw the factual conclusion that R.S. no longer posed a danger to Brown—"[R.S.] is done[;] his role in the fight is over ... but [Brown] keeps trying to kill [R.S.]"—and therefore the right to self-defense had ended. The prosecutor's legal argument was that stabbing an unarmed attacker or mutual combatant who is backing away from a fight to end the fight does not constitute self-defense. This argument was not inconsistent with the law.
Because the prosecutor did not commit misconduct, defense counsel's failure to object did not constitute deficient performance. Brown's ineffective assistance of counsel claim fails on that basis.
III. Cumulative Error
Brown argues that the purported errors discussed in sections I and II of the Discussion, ante, even if separately harmless, were together prejudicial. Because we find no valid claim of error on either issue, we reject Brown's contention that the judgment must be reversed for cumulative error. (People v. Vieira (2005) 35 Cal.4th 264, 294.) IV. Romero Motion
Brown contends the trial court abused its discretion in failing to strike his prior strike allegation because the prior conviction was remote in time and the present crime was not particularly violent.
Section 1385 empowers a trial court to "order an action to be dismissed" in furtherance of justice, on its own or the prosecution's motion. (§ 1385, subd. (a.).) Our Supreme Court held in Romero, supra, 13 Cal.4th 497 that a trial court has discretion under section 1385 to dismiss a prior strike when the court finds a defendant falls outside the spirit of the Three Strikes law. (Romero, at pp. 529-530.) In deciding whether to exercise this discretion, the court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams); accord People v. Johnson (2015) 61 Cal.4th 674, 688-689.)
A trial court's "refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion." (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.) The Three Strikes law establishes that not striking a prior strike is the norm, and there is a "strong presumption that any sentence that conforms to the[] sentencing norm[] is both rational and proper." (Id. at p. 378.) "Where the record is silent [citation] or '[w]here the record demonstrates that the trial court balanced the relevant factors and reached an impartial decision in conformity with the spirit of the law,' " we are required to affirm the trial court's ruling, " 'even if we might have ruled differently in the first instance.' " (Ibid.)
Brown's prior strike conviction for manslaughter occurred on June 17, 1987. In that case, while intoxicated, Brown stabbed a homeless victim to death. At sentencing in this case, Brown requested that the trial court exercise its discretion to strike the prior strike allegation pursuant to Romero, supra 13 Cal.4th 497. At sentencing, the trial court heard argument from the parties and, without explaining its decision, "decline[d] its right to exercise its discretion to strike the prior strike pursuant to Romero." Because declining to strike the prior strike is the "norm," we presume the trial court's decision was proper. (Carmony, supra, 33 Cal.4th at p. 378.)
The fact that Brown's prior strike conviction was 31 years old does not convince us otherwise. "In determining whether a prior conviction is remote, the trial court should not simply consult the Gregorian calendar with blinders on." (People v. Humphrey (1997) 58 Cal.App.4th 809, 813 (Humphrey); see People v. Solis (2015) 232 Cal.App.4th 1108, 1124 [a prior strike conviction is not properly stricken merely because it is 30 years old].) "To be sure, a prior conviction may be stricken if it is remote in time. In criminal law parlance, this is sometimes referred to as 'washing out.' [Citations.] The phrase is apt because it carries the connotation of a crime-free cleansing period of rehabilitation after a defendant has had the opportunity to reflect upon the error of his or her ways." (Humphrey, supra, 58 Cal.App.4th at p. 813.) However, in this case, Brown did not live a " 'legally blameless life' " after his 1987 convictions for manslaughter and felony assault. (Ibid.) Between his release from custody on the 1987 convictions and his arrest for the crimes at issue in this case, Brown was convicted of one count of possession of drug paraphernalia, six counts of petty theft, and 16 counts of disorderly conduct, and he suffered five parole violations. Brown's recidivist conduct over that period reflected an unwillingness or inability to comply with the law. The court emphasized that Brown "ha[d] prior convictions as an adult and a juvenile that are numerous" and found that his performance on "probation or parole ha[d] been unsatisfactory." In light of his background, Brown's prior strike conviction was not so remote that he necessarily fell outside the spirit of Three Strikes law. On the contrary, Brown's criminal history supports sentencing under the Three Strikes law.
Similarly, the nature of the present offense does not convince us that the trial court abused its discretion in refusing to strike the prior strike conviction. Brown is correct that R.S.'s wounds were not particularly serious; R.S. received surgical staples for the knife wound on his chest and was discharged from the hospital the same night. However, that is the only fact regarding the present offense that is favorable to Brown's position and it is not clear to us that the relatively minor nature of R.S.'s injuries was due to Brown's restraint rather than R.S.'s backing away from the attack. What is most significant about the present felony is its striking similarity to the offense underlying the prior conviction, where Brown stabbed and killed another man while intoxicated. The similarity between the prior conviction and the present offense " 'reveals that [Brown] had been taught, through the application of formal sanction, that [such] criminal conduct was unacceptable—but had failed or refused to learn his lesson.' " (Williams, supra, 17 Cal.4th at p. 163.) Indeed, the trial court specifically noted, albeit in a different context, that the present offense "involve[d] great violence," could have caused great injury, and continued "a pattern of violent conduct" by Brown. The nature of the present felony did not require the trial court to find Brown was outside the spirit of the Three Strikes law.
On the record before us, the trial court's determination that the prior strike did not fall outside of the spirit of the Three Strikes law and was not irrational or arbitrary and therefore did not constitute an abuse of discretion.
V. Senate Bill No. 1393
Lastly, Brown contends this matter should be remanded for the trial court to exercise its discretion recently granted by Senate Bill No. 1393 (SB 1393) to strike the five-year prior serious felony conviction enhancement imposed pursuant to section 667, subdivision (a). The People acknowledge SB 1393 applies retroactively to Brown but argue remand is unnecessary because the trial court's statements on the record make clear it would not have stricken the enhancement even if it had the discretion to do so.
We agree with the parties that SB 1393 applies retroactively to Brown because his case was not final when the law became effective (People v. Garcia (2018) 28 Cal.App.5th 961, 973), but we agree with the People that remand is unnecessary in this case.
On September 30, 2018, the Governor signed SB 1393 which, effective January 1, 2019, amended sections 667, subdivision (a) and 1385, subdivision (b) to allow a trial court to exercise its discretion to strike a prior serious felony conviction enhancement for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2, eff. Jan. 1, 2019; see Legis. Counsel's Dig. to SB 1393 ["This bill would delete the restriction prohibiting a judge from striking a prior serious felony conviction in connection with imposition of [a] 5-year enhancement"].) Under the versions of these statutes operative when Brown was sentenced, the trial court was required to impose a five-year consecutive term for "any person convicted of a serious felony who previously has been convicted of a serious felony" (former § 667, subd. (a), as amended by Prop. 36, § 2, as approved by voters, Gen. Elec. (Nov. 6, 2012)), and the court had no discretion "to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667" (former § 1385, subd. (b), as amended by Stats. 2014, ch. 137, § 1).
Although SB 1393 applies retroactively to Brown, we are not required to remand to allow the trial court to exercise its discretion if "the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] ... enhancement" even if it had the discretion. (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) The court need not have specifically stated at sentencing it would not strike the enhancement if it had the discretion to do so. Rather, we review the trial court's statements and sentencing decisions to infer what its intent would have been. (See People v. Jones (2019) 32 Cal.App.5th 267, 274-275 [no remand after enactment of SB 1393 where the trial court declined to exercise its discretion to impose a lesser sentence when it could have, listed extensive aggravating factors for the record, imposed the highest sentence legally permissible, and expressed that it "took 'great satisfaction' in imposing [a] 'very lengthy sentence' "]; People v. McVey (2018) 24 Cal.App.5th 405, 419 [no remand where, "[i]n light of the trial court's express consideration of the factors in aggravation and mitigation, its pointed comments on the record, and its deliberate choice of the highest possible term for the firearm enhancement, there appears no possibility that, if the case were remanded, the trial court would exercise its discretion to strike the enhancement altogether"]; People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [no remand where, even though the trial court did not expressly state it would not have stricken a strike prior, it indicated in statements and rulings that it would not exercise any discretion to reduce the sentence, regardless of the particular enhancement at issue].)
Here, defense counsel suggested a path by which the trial court could have imposed a term of seven years—by striking the prior strike conviction, imposing the lower term of two years, and adding the then-mandatory five-year prior serious felony conviction enhancement. The trial court declined to follow that path, instead imposing the upper term and refusing to strike Brown's prior strike conviction, imposing a total of 13 years. The court's sentence fell between the sentence requested by the prosecutor (the maximum allowable sentence of 15 years four months) and the sentence requested by Brown (seven years). At the time of sentencing, the court could also have exercised its discretion to impose the eight-year sentence Brown now seeks. After acknowledging it had the authority to strike the prior strike and take that path, the court declined to do so in favor of imposing a longer sentence. We are satisfied on the record before us that it is clear the court would not have exercised its discretion to strike the five-year serious felony enhancement had it possessed the authority to do so. For that reason, we decline to remand the matter.
DISPOSITION
The judgment is affirmed.
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
SMITH, J.