Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, James A. Stotler, Judge. Super. Ct. No. 04SF1245
Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting, Elizabeth Voorhies, and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Jason Allen Clark appeals from a judgment after a jury convicted him of aggravated assault and found true the allegation he personally inflicted great bodily injury. Clark argues there were evidentiary and instructional errors. We disagree and affirm the judgment.
FACTS
Clark and Augustino Giordano met in high school and had known each other for approximately 10 years. Giordano, who was a recovering heroin addict and living in a sober living house, called Clark to inquire about a job and ask to borrow $20. Clark said he could borrow the money. Giordano called his friend, David Fischer, who agreed to give him a ride to Clark’s house. Giordano walked to Fischer’s house and gave Fischer a few dollars for gas. Fischer drove to a gas station, and from the station, Giordano drove to Clark’s house.
Once there, Giordano got out and Fischer stayed in the truck. As he was walking to the front door, Giordano saw Clark’s girlfriend, Nina Marquez, walk inside with a bag of fast food. He knocked and went inside. Clark was there with his brother and his brother’s friend, Matthew Christie. Giordano asked Clark if he had the money, and Clark said, “No.” Giordano was upset because they drove there and had no money for gas to drive back and he saw Marquez with food, which he assumed Clark bought. They argued.
Giordano asked Clark for a couple dollars for gas to drive home, and Clark said, “No.” Giordano saw a glass jar overflowing with coins, grabbed a handful, and asked if he could take them. Clark said, “‘No, those are my special quarters.’” Giordano laughed at him for having “special quarters,” threw the coins down, called him a “bitch,” and left.
Giordano got back into the driver’s seat, fastened his seat belt, drove towards the cul-de-sac, and made a U-turn. As he was driving by Clark’s house, Fischer told Giordano that Clark was coming outside, and Giordano stopped. Clark had a screwdriver in his left hand and his right hand was behind his back. Giordano rolled down his window halfway, put his fingers on the door latch, and positioned his knee against the door so he could quickly open it into Clark if he tried to stab him. Giordano said, “‘What are you going to do with that, have me take it from you, stick it up your ass?’” Clark swung at him with the screwdriver. Giordano quickly opened the door and hit Clark’s arm, which caused him to drop the screwdriver, and Giordano closed the door. Giordano turned to Fischer and started laughing. Clark stabbed Giordano in the chest area with a butterfly knife. Giordano, in shock, said, “‘Did you just fucking stab me?’” and “‘Now, I am going to fuck you up.’” Giordano tried to get out, but Fischer grabbed him and said he was hurt and they had to leave. Clark went inside and gave the knife to Christie, who put it in Clark’s room. Giordano drove to the end of the street and realized he could not drive any farther; he was coughing up blood. Fischer drove him to an urgent care, where the police were called. He initially did not tell the police who stabbed him because he did not want Clark to get into trouble, but he eventually told them. The knife punctured Giordano’s lung, which caused it to collapse.
Officers recovered the knife from Clark’s room.
An Orange County Sheriff’s investigator interviewed Clark later that day as he sat in the back of a patrol car on the street in front of his house. He did not have any visible injuries. Clark said Giordano called him and asked to borrow $20 to buy heroin, and he told him to come to his house. When he arrived, Giordano asked for the money and told Clark that he was in “rehab.” Clark changed his mind and said he did not have the money. Giordano got angry, and they argued. Giordano punched him in the face, said, “‘fuck you[,]’” took coins from the table, and left. Clark got a knife, put it in his back pant pocket, and went outside. Near the truck, Giordano punched him twice in the face and got into the truck. Clark said he wanted his money back, and Giordano opened the truck door into him. Clark took the knife from his back pant pocket and said he wanted his money back. Giordano reached for the knife and grabbed his right arm, and he pushed the knife into Giordano.
The Orange County Sheriff’s investigator interviewed Giordano the next day. Giordano told the investigator he was trained in martial arts and that if he punched Clark, he would die. An Orange County Sheriff interviewed Christie in front of Clark’s house shortly after the incident. Christie never told her that Giordano punched Clark.
An information charged Clark with aggravated assault (Pen. Code, § 245, subd. (a)(1)), and alleged he personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)).
The district attorney offered Giordano’s testimony. Giordano admitted he had been convicted of assault and he was trained in martial arts. On cross-examination, Giordano stated he told people that if he hit them with his hand, he could kill them. At the time of the incident, he was six feet and one inch tall and weighed 220 pounds. Giordano admitted he had pled guilty to assault with a deadly weapon—his hands.
The district attorney also offered Christie’s testimony. On cross-examination, Christie testified he heard Clark ask for his “stuff back[]” and Giordano challenged Clark to fight. He saw Giordano punching Clark two or three times through the truck window as he sat in the truck. On redirect examination, when confronted with the police report, Christie stated the police report indicated he told a sheriff that Giordano “tried to punch” Clark. Christie said that when he and Clark went inside after the incident, Clark told him Giordano punched him when he was near the truck.
The parties stipulated to the following: “Giordano suffered significant or substantial physical injury . . . .”
Clark offered the testimony of people who knew both him and Giordano from high school. They testified to Clark’s reputation for honesty and Giordano’s reputation for violence, including incidents where he attacked a classmate and a person who “flicked” a cigarette at him from a car.
Clark also offered the testimony of Marquez, his ex-girlfriend who was pregnant with his child at the time of trial. Marquez testified she saw Giordano “throw” two or three punches at Clark. On cross-examination, Marquez admitted that in her three previous statements she never told anyone Giordano hit Clark, but that Giordano tried to hit him. Marquez said she lied in her previous statements, and she could not continue testifying. The trial court recessed for the day. The next day, Marquez testified she saw Giordano try to hit Clark two or three times. Marquez said she changed her story because she pressured herself into believing Giordano actually hit Clark.
Clark testified in his own defense. He described Giordano as a violent person who would prey on weaker people. He described an incident where they were at the beach when a “Marine” asked them if he could have a beer, Giordano said, “fuck off[,]” the “Marine” responded, “‘What the fuck is your problem?’” Giordano hit him in the face, he fell, and Giordano kicked him until Clark and another person stopped Giordano. He described another incident where he, Giordano, and another person “rescued” a girl from her boyfriend. When they got to the hotel, Giordano kicked the door down and hit the boyfriend, and when he was on the ground, Giordano kicked him in the head until Clark and the other person stopped him. He described other incidents where Giordano was a bouncer at a bar and he hit a patron in the face, he hit a heroin dealer who he thought “short[ed]” him, and he attacked a classmate in high school for looking at him “awkwardly.” Clark said Giordano was at home using heroin when his mother walked in on him and he stood up and hit her. He stated his father was physically and mentally abusive and he too would prey on weaker people. He said his relationship with Giordano was similar to his relationship with his father, and he remained friends with Giordano because Giordano was his heroin dealer and Clark feared Giordano as he did his father.
As to the day of the incident, Clark testified Giordano called him and asked to borrow $20 and Clark agreed. Clark stated that when Giordano arrived and asked for the money, he told him he was in “rehab” and appeared to be going through withdrawal symptoms. Clark, who had been clean for approximately one week, did not want to support Giordano’s heroin addiction, and told him he did not have the money. Giordano became angry. Giordano grabbed the coins from the jar, pushed Clark, and left. Knowing Giordano carried a knife, Clark got a butterfly knife and screwdriver, went outside, and saw Giordano getting into a truck. Clark confronted him and asked him to return his coins. Giordano said, “‘Fuck you, you little pussy. I’m going to stick that thing up your ass.’” Giordano opened the door and slammed it into Clark, and Clark dropped the screwdriver. Giordano tried to punch him twice, and Clark retrieved the knife from his back pant pocket. Giordano grabbed Clark’s right shoulder with his left hand, and Giordano hit Clark in the face twice with his right hand. Clark held the knife underneath Giordano’s left arm while his left arm was extended. He did not know he stabbed Giordano until the police came to his house later that day.
The jury convicted Clark of aggravated assault and found true the great bodily injury enhancement. The trial court sentenced Clark to the middle term of three years for the aggravated assault and a consecutive term of three years for the great bodily injury enhancement.
DISCUSSION
I. Expert Testimony
Clark argues the trial court erroneously excluded “expert ‘syndrome’ impact evidence.” We disagree.
Before we address each of Clark’s claims, we must provide some procedural history. Before trial, the district attorney stated defense counsel was planning to offer expert testimony that Clark suffered past physical abuse to support his claim he acted in self-defense. The district attorney objected to the expert testifying Clark acted in self-defense, but stated it did not object to the expert testifying he had a heightened need to protect himself. Defense counsel explained he was offering the testimony of Richard Recor, a psychologist, who would testify Clark suffered from a heightened level of sensitivity due to past assaultive behavior from his father and Giordano’s propensity for violence. The trial court analogized such testimony to battered women’s syndrome testimony, which the court said was admissible. Defense counsel added it would violate Clark’s equal protection rights to not allow Recor to testify. The court tentatively ruled Recor’s testimony was admissible, but took the matter under submission. The district attorney responded defense counsel’s written offer of proof appeared to be limited to assaultive conduct Clark suffered from his father and had nothing to do with conduct between Clark and Giordano. The court opined Recor’s testimony was admissible, “but with some limitation[]” and declared a recess. A few days later, the trial court decided to conduct an Evidence Code section 402 hearing.
All further statutory references are to the Evidence Code.
After detailing his education, training, and experience, Recor testified he examined Clark and spoke with his mother and concluded he suffered from a “mild conduct disorder, adolescent onset type.” He described it as “a behavioral disturbance in which the major age norms are violated, in which there may be substance abuse, sometimes high risk taking behavior, staying away from home, not completing schooling. Basically being or failing to meet the age appropriate obligations.” In making his diagnosis, Recor considered Clark’s relationship with his father and his relationship with Giordano. He also testified as to battered women’s syndrome. On cross-examination, Recor admitted he had no “battered friend syndrome” cases and had not read any articles on battered friend syndrome. He also said there was no “medical diagnosis or personality disorder associated with bullying syndrome[,]” and he has never testified that being bullied is a syndrome. He stated Clark had emotional symptoms of being a battered child. He did not have any reports of Clark’s father being physically abusive and was aware of only one instance where Clark jumped on his father’s back to protect his mother. Recor’s opinion was based on Clark’s statements to him his father was emotionally abusive and he saw Giordano physically assault someone. Recor stated, “it is the heightened sensitivity to the abuse that he had experienced as a child growing up that lent to his sensitivity to the -- to the situation in which he perceived a threat to his integrity at the time of the alleged incident.” He conceded Clark did not appear to be suffering from posttraumatic stress syndrome. On redirect examination, Recor said there were similarities between the issues Clark had with his father and the issues he had with Giordano. After hearing argument and providing its own lengthy discussion of the various issues, the trial court took the matter under submission.
The next morning, the trial court provided a lengthy explanation of its reasoning and ruled Recor could testify subject to certain limitations. The court stated Recor could testify he examined Clark, spoke with his mother, and concluded Clark suffered from a mental condition, but he could not testify as to Clark’s or his mother’s statements. The district attorney indicated it would file a motion for reconsideration later that day or the following day.
Later that day, the district attorney filed its motion, arguing Recor’s testimony was irrelevant because aggravated assault is a general intent crime. At a hearing later that day, the trial court stated, “I think the ruling is wrong.” The court explained it did not believe there was statutory authority for admitting Recor’s testimony and analogizing it to battered women’s syndrome, mental defect or disease, or impulse “stretch[es] the case beyond what the law allows for.” The court concluded Clark could testify as to his state of mind if he chose to do so and his mother could testify to corroborate Clark’s testimony. But, the court added it did not believe the subject of Recor’s testimony was an appropriate area of expert opinion.
Later, during discussion of another evidentiary issue, the trial court stated: “And I want to restate something by the way, as far as . . . Recor’s testimony is concerned, since I alluded to it today. The reason essentially that I excluded . . . Recor’s testimony is also [section] 352 . . . . That is, looking at the relevance of that testimony and looking at the probative value of it versus its prejudicial effect, and also looking at the danger of misleading and confusing the jury when that evidence comes forth, I think considering all of that, . . . Recor’s testimony is inadmissible. And so that I just need to clarify for the record, the basis for the reason for excluding . . . Recor’s testimony.”
Relying on the former version of section 1107, subdivision (a), Clark claims the trial court’s initial decision to admit Recor’s testimony was proper. Not so.
Section 1107, subdivision (a), states: “In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding intimate partner battering and its effects, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge.” (Italics added.)
Clark cites to the version of section 1107, subdivision (a), that was in effect prior to January 1, 2005, and authorized admission of evidence regarding “battered women’s syndrome.” The rules of evidence in effect at the time of trial generally govern the admissibility and exclusion of evidence at that trial. (People v. Hayes (1989) 49 Cal.3d 1260, 1277.) When trial began, May 30, 2006, section 1107, subdivision (a), authorized admission of evidence regarding “intimate partner battering.” (§ 1107, subd. (f) [“The changes in this section that become effective on January 1, 2005”].)
Clark cites to no authority, and we found none, that holds section 1107, subdivision (a), authorizes a trial court to admit evidence of the kind at issue here—Recor’s testimony Clark had a heightened level of sensitivity because his father emotionally abused him and Clark knew, or learned from others, Giordano had a propensity for violence. Section 1107, subdivision (a), by its language is limited to evidence of “intimate partner battering.” We do not read this to include a parent’s emotional abuse of a child, or a friend’s propensity for violence, and decline Clark’s invitation to broaden its scope to include such evidence.
Additionally, Recor admitted there were no such syndromes as “battered friend syndrome” or “battered bullied syndrome.” And, Recor diagnosed Clark with “a mild conduct disorder, adolescent onset type.” He never diagnosed Clark with a “syndrome” that explained his behavior on the day of the incident. Therefore, Recor’s testimony was not admissible pursuant to section 1107, subdivision (a).
B. Fourteenth Amendment Equal Protection Clause
Clark argues, “[t]o the extent the trial court interpreted . . . section [1107] to constitute solely a ‘battered women’s syndrome’ rather than a ‘battered person syndrome’ type legislation, it would violate equal protection by creating an exclusionary gender classification . . . .” (Italics added.) Clark suggests we should interpret section 1107 “to include “men, women, or children[.]” Again, we decline his invitation.
As we explain above, Clark cited to the former section 1107, subdivision (a). At the time of trial, and currently, it applies to “intimate partner battering.” Second, “children” is not a gender, and Clark cites to no case holding age is a suspect class for purpose of equal protection analysis or entitled to some heightened level of review. (In re Chong K. (2006) 145 Cal.App.4th 13, 20 [age not suspect classification]; In re Arthur W. (1985) 171 Cal.App.3d 179, 186 [persons under 18 years of age are neither a “‘discrete and insular minority’” nor a “‘suspect classification[,]’” and “strict judicial scrutiny is not required”].) Clark’s equal protection claim fails.
C. CALCRIM No. 3470
Clark contends “CALCRIM No. 3470 provided the instructional foundation to allow the testimony by . . . Recor.” As we explain below, jury instructions are not a proper basis for admitting evidence.
Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 3470, “Right to Self-Defense or Defense of Another (Non-Homicide),” states: “The defendant is not guilty of assault with a deadly weapon 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 violence to himself. Defendant’s belief must have been reasonable and he must have acted because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful self-defense. [¶] When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed. [¶] The defendant’s belief that he was threatened may be reasonable even if he relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true. [¶] If you find that . . . Giordano threatened or harmed the defendant or others in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable. [¶] If you find that the defendant knew that . . . Giordano had threatened or harmed others in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable. [¶] [Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measures against that person]. [¶] 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. [¶] 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 with a deadly weapon.” (Italics added.)
As we discuss in greater detail below, the trial court instructed the jury with a modified version of this instruction that did not include this sentence.
Relying on the above italicized language, Clark asserts the trial court should have allowed Recor to testify because it would have explained his “heightened level of sensitivity resulting from past assaultive behavior[.]” Nonsense. All relevant evidence is admissible unless its exclusion is required by some other statute or for policy reasons. (§§ 351, 352.) A jury instruction does not render otherwise inadmissible evidence admissible. (See People v. Morales (2001) 25 Cal.4th 34, 48, fn. 7 [published jury instructions “are not themselves the law, and are not authority to establish legal propositions or precedent”].) We address Clark’s related claim the trial court erroneously omitted language from CALCRIM No. 3470 anon.
D. Self-Defense
Clark argues his defense of self-defense put in issue his subjective state of mind and Recor’s testimony would have assisted the jury in evaluating his defense. We are unpersuaded.
An expert witness is a person who “has special knowledge, skill, experience, training, or education sufficient to qualify him [or her] as an expert on the subject” of his or her testimony. (§ 720, subd. (a).) An expert may offer opinion testimony if the subject “is sufficiently beyond common experience that” it would assist the jury. (§ 801, subd. (a).) The opinion testimony must “[be] [b]ased on matter . . . perceived by or personally known . . . or made known to” the witness before or at the hearing and “is of a type that reasonably may be relied upon . . . in forming an opinion upon the subject” of his or her testimony. (§ 801, subd. (b).)
Here, Recor’s testimony would not have provided any information sufficiently beyond common experience to assist the jury in evaluating Giordano’s defense of self-defense. As we explain above, Recor diagnosed Clark with a conduct disorder characterized by failing to meet age appropriate obligations. He never diagnosed Clark with any type of “syndrome” that explained his behavior on the day of the incident. Therefore, Recor’s testimony he examined Clark, spoke with Clark’s mother, and concluded he was essentially, immature, would not have assisted the trier of fact.
What was useful in assessing Clark’s defense, and evidence the jury did hear, was Clark’s testimony concerning his father’s abuse and Giordano’s propensity for violence, and the character witnesses who testified as to Clark’s reputation for honesty and Giordano’s reputation for violence. Additionally, during closing argument, defense counsel stressed the jury should consider Clark’s relationship with his father and his relationship with Giordano in weighing the evidence. Based on the evidence presented at trial, the jury could have concluded, based on common experience and without the assistance of expert testimony, that Clark’s experiences with his father and his knowledge of Giordano, caused him to have a heightened level of sensitivity, which caused him to act in self-defense.
Clark claims the trial court erroneously excluded Recor’s testimony pursuant to section 352. Relying on two of the trial court’s statements prior to its final ruling, Clark states Recor’s testimony was highly probative and any prejudice was dissipated by the fact he testified and was subject to cross-examination. Again, we disagree.
“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (§ 352.) “We review a challenge to a trial court’s choice to admit or exclude evidence under section 352 for abuse of discretion. [Citation.] We will reverse only if the court’s ruling was ‘arbitrary, whimsical, or capricious as a matter of law. [Citation.]’ [Citation.]” (People v. Branch (2001) 91 Cal.App.4th 274, 282.)
Here, the trial court’s exclusion of Recor’s testimony pursuant to section 352 was not arbitrary, whimsical, or capricious. Although the court did not place its reasoning on the record until later in the trial, it is clear the court weighed the applicable factors. The probative value of Recor’s testimony, if any, was substantially outweighed by the probability its admission would confuse the issues and mislead the jury. As we explain above, Recor concluded Clark had a conduct disorder that made it difficult to meet age appropriate obligations. However, he never diagnosed Clark with any type of “syndrome” that explained his behavior on the day of the incident. Recor’s testimony would have misled the jury and confused the issues because the jury would have been forced to guess as to its purpose. Therefore, the trial court properly excluded Recor’s testimony.
II. Jury Instructions
Clark raises several claims of instructional error. We will address each in turn.
“‘“‘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.’ [Citation.]”’ [Citation.]” (People v. Garvin (2003) 110 Cal.App.4th 484, 488-489 (Garvin).)
A. CALCRIM No. 3470
Clark claims the trial court erroneously instructed the jury with a modified version of CALCRIM No. 3470, “Right to Self-Defense or Defense of Another
(Non-Homicide).” We disagree.
The trial court instructed the jury with a modified version of CALCRIM No. 3470 that did not include the following sentence: “[Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measures against that person].” (Italics added.)
The Attorney General argues Clark forfeited appellate review of this claim because he did not request this language be included. Clark responds with the standard claims—no invited error, trial court sua sponte duty to instruct on all legal principles, substantial right, and ineffective assistance of counsel. We will address the merits of his claim “in the interest of judicial economy to prevent the inevitable ineffectiveness-of-counsel claim.” (See People v. Palmer (2005) 133 Cal.App.4th 1141, 1156 (Palmer).)
Clark repeatedly states he observed Giordano’s “past assaultive and violent behaviors.” However, he points to no evidence, and we found none, that supports the conclusion Giordano previously threatened or harmed Clark. The fact Giordano threatened or harmed others is insufficient to warrant the trial court giving the jury the above bracketed language. Additionally, the trial court properly instructed the jury on the basic principles of self-defense, including that if it found Giordano threatened Clark or others or Clark knew Giordano threatened or harmed others, the jury could consider that information in deciding whether Clark’s conduct and beliefs were reasonable. (Garvin, supra, 110 Cal.App.4th at p. 489; see also People v. Holt (1997) 15 Cal.4th 619, 677 (Holt) [adequacy of jury instructions considered by examining charge as a whole].) Thus, the trial court properly instructed the jury with a modified version of CALCRIM No. 3470.
The only evidence in the record Giordano threatened or harmed Clark prior to the altercation outside was Clark’s testimony Giordano pushed him when they were inside the apartment. But, Clark does not rely on this evidence to support his claim, and it hardly seems adequate to call for the language requested, even if he had.
CALCRIM instructions use brackets to provide optional choices that may be necessary or appropriate depending on the facts of the case. (Jud. Council of Cal. Crim. Jury Instns. (2006-2007) Preface, p. xiv.)
B. CALCRIM No. 915
Clark contends the trial court erroneously failed to instruct the jury with CALCRIM No. 915, “Simple Assault,” as a lesser included offense of assault with a deadly weapon, despite defense counsel’s objection, because there was sufficient evidence of the lesser offense. Not so.
The trial court’s obligation to instruct sua sponte “‘“has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. [Citation.]’ [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 154-155, italics added.)
Here, we agree simple assault is a lesser included offense of assault with a deadly weapon and generally, the trial court had a sua sponte duty to instruct on simple assault. (People v. Toledo (2001) 26 Cal.4th 221, 226.) However, after a lengthy discussion on the issue, defense counsel objected to an instruction on simple assault because he did not think it applied.
Based on our review of the record, we conclude there was no evidence the offense was anything less than an assault with a deadly weapon. As we explain above, the parties stipulated: “‘Giordano suffered significant or substantial physical injury . . . .’” The trial court instructed the jury it had to accept those facts as true. (CALCRIM No. 222.) Clark inflicted the bodily injury with a butterfly knife, and the jury, therefore, had to conclude Clark used a knife to inflict the bodily injury, i.e., assault with a deadly weapon. Indeed, the jury found Clark inflicted great bodily injury on Giordano in connection with count 1, the aggravated assault. Clark’s reliance on his testimony he did not stab Giordano, he intended to keep him away, and he did not know he stabbed Giordano until later are unpersuasive to establish there was evidence he committed a simple assault. The above described evidence supports only a finding of assault with a deadly weapon, and the trial court properly refused to instruct the jury on simple assault.
C. CALCRIM No. 3474
Without citing to any authority, Clark contends the trial court erroneously instructed the jury with CALCRIM No. 3474, “‘Danger No Longer Exists or Attacker Disabled,’” because Clark was exposed to danger inside and outside the house. As we explain below, CALCRIM No. 3474 was appropriate.
The trial court instructed the jury with CALCRIM No. 3474, which stated: “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 or no longer appears capable of inflicting any injury, then the right to use force ends.”
Inside the house, Clark refused to give Giordano money, they argued, Giordano possibly pushed Clark, and Giordano left. As Giordano drove the truck around the cul-de-sac to exit the neighborhood, Clark got a butterfly knife and screwdriver and walked outside towards the truck, and Giordano stopped the truck. Clark had the screwdriver in his left hand and his right hand behind his back when Giordano threatened to “‘stick [the screwdriver] up [his] ass?’” Based on all the evidence presented at trial, the jury could have reasonably concluded Clark’s right to self-defense ended when Giordano left his house. Therefore, the trial court properly instructed the jury with CALCRIM No. 3474.
D. CALCRIM No. 316
Again without relying on any authority, or pointing to any specific evidence the jury allegedly improperly considered, Clark claims CALCRIM No. 316 is overbroad because it allows the jury to consider anything it considers to be misconduct in evaluating a witness’s credibility. Clark’s claim is without merit.
The trial court instructed the jury with CALCRIM No. 316, “Additional Instructions on Witness Credibility—Other Conduct,” which provided: “If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of the witness’s testimony. The fact of a conviction does not necessarily destroy or impair a witness’s credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable. [¶] If you find that a witness has committed a crime or other misconduct, you may consider that fact only in evaluating the credibility of the witness’s testimony. The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness’s credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.” (Italics added.)
Relying on the above italicized language, Clark claims CALCRIM No. 316 is overbroad. We disagree. We note Clark did not object to the instruction at trial or request a pinpoint instruction clarifying any alleged deficiency, and this claim could be deemed waived. We will address the merits of his claim to forego his ineffectiveness-of-counsel claim. (Palmer, supra, 133 Cal.App.4th at p. 1156.)
Clark does not point to any specific other misconduct evidence to support his claim CALCRIM No. 316 is overbroad. We have reviewed the record, and the only other misconduct evidence we discern is Giordano’s propensity for violence. Clark fails to posit a theory as to how admission of this evidence prejudiced him. Appellate counsel’s failure to cite to any legal authority to support his claim, or point to any specific prejudicial effect requires us to reject this claim.
E. Cumulative Error
Clark contends the cumulative effect of the instructional error requires reversal. We have concluded there was no instructional error, and therefore, this claim has no merit.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., ARONSON, J.