Opinion
C056166
11-20-2008
THE PEOPLE, Plaintiff and Respondent, v. BOBBY PHONETT DAVIS, Defendant and Appellant.
Not to be Published
After a jury trial, defendant Bobby Phonett Davis was convicted of murder of the second degree. (Pen. Code, §§ 187, subd. (a), 189.) The jury also found true an enhancement allegation that he personally used a deadly or dangerous weapon. (§ 12022, subd. (b)(1).) Sentenced to 16 years to life in state prison, defendant appeals. He contends that the trial court erred in: (1) denying requested instructions, (2) denying motions in limine to suppress the fact that former codefendant witnesses had been convicted of voluntary manslaughter for their roles in the homicide, (3) instructing the jury with CALCRIM No. 373, (4) submitting the case to the jury on theories of liability for aiding and abetting and natural and probable consequences, and (5) trial counsel provided ineffective assistance. Finding no merit in his contentions of error, we shall affirm the judgment.
Undesignated statutory references are to the Penal Code.
"We discuss those arguments that are sufficiently developed to be cognizable. To the extent defendant perfunctorily asserts other claims, without development and, indeed, without a clear indication that they are intended to be discrete contentions, they are not properly made, and are rejected on that basis." (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19.)
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of August 28, 2005, around quarter to eight, police officers were summoned to 3217 San Carlos Way in Sacramento. Forty-five-year-old Steven Santistevan was lying on the ground moaning. He had cuts and scrapes on his legs and was bleeding from his head. The left side of his face had a deep indentation; it looked like his skull had been crushed in. An ambulance crew arrived promptly and he was taken to the hospital. He died that evening.
An autopsy revealed that Santistevan had numerous bruises, a fractured skull, fractured ribs, stab wounds on both sides of the chest deep enough to puncture the lung, and jagged stab wounds on his legs, consistent with use of a broken bottle. The pathologist opined that the blunt force injury causing the skull fracture and two stab wounds to the chest caused death and that any of them alone could have sufficed.
Malcolm James, a neighbor, and Stephen Harvey, Jamess older brother, saw the brawl in which Santistevan was injured. James testified as follows. Several vehicles pulled up and a group of approximately 15 young people, males and females, including Santistevans stepdaughter, approached Santistevans house, yelling. They accosted him and an argument followed. Santistevan sat in a chair on the porch. Some of the females who had been yelling at him began hitting him. They picked up bottles and struck him with those. During the altercation a young man took off his black shirt, draped it on the chain-link fence, picked up a heavy piece of wood lying on the ground near the fence, ran at Santistevan, and threw it at him from a close distance of approximately three feet. Santistevan was distracted by the other youths, yelling at them to "get out of his yard" and did not see the wooden projectile coming. It hit Santistevan behind his left ear, so hard that it flipped him out of the chair and off the porch. He ended up prone, face down on the ground next to the porch. Five of the females continued to kick and hit the defenseless Santistevan. James finally called out to them to stop, dialed 911 on his cell phone, and reported the incident.
Prior to being struck, Harvey testified that Santistevan briefly brandished a small knife after one of the females hit him in the face and another hit him in the leg with a beer bottle. They talked for 10 to 15 seconds and he put the knife down saying, "I dont have any problem with you."
When more youths started walking up, Harvey became concerned. Harvey testified that when he threatened at one point to get help, two of the females told him that Santistevan was a pervert and a molester.
James testified that before the incident Santistevan had an angry argument with his wife, Laura G. Thereafter, she left the home. Santistevan told James the family was angry at him because of an accusation that he had tried to have sex with a young girl.
James Ramirez, another neighbor, testified he also overheard the screaming, profanity-laced argument. It had something to do with Santistevan having sex with an 18-year-old girl and Santistevans wife threatened that "theyre coming for you." Thereafter, she left with a backpack and a duffle bag. Late that afternoon Santistevan approached Ramirez, showed him some knives, and asked if Ramirez would "have his back" because somebody might be coming to get him.
On September 22, 2005, after defendant had been detained by law enforcement officers in Arizona, Sacramento Police Department officers questioned him about his role in the incident causing Santistevans death. The jury viewed a DVD of the interview.
Defendant gave the following essential account of the incident during the questioning. His girlfriend, A.G., the niece of Santistevans wife, had told him that Santistevan had molested her when she was younger. On the day of the homicide she told defendant that Santistevan telephoned her and told her there was a "rumor . . . going around" that he had molested her and his stepdaughter. They went to Santistevans house with friends and family to talk to his wife, to get her to leave him or have her make him leave the home. Santistevan was there. He was belligerent and threw a beer bottle at A.G. When she punched Santistevan, he pulled a big knife.
As defendant pulled A.G. back, Santistevan stabbed defendant in the knee. Defendant was "mad," "going crazy"; he told Santistevan to get up and fight. Santistevan would not get up and fight. After taking off his shirt to prepare for fighting, defendant saw the piece of wood in the yard, which he described as a "four-by-four," "[m]aybe two-[foot]-long" "board." He wanted to hurt Santistevan like Santistevan had hurt the girls. Child molestation is especially repugnant to defendant. Defendant threw the four-by-four piece of wood at Santistevan to try to get him up from the chair, so they could fight. Later in the interview he claimed: "I just tried to basically get that knife out of his hand with the stick, but it hit him in the shoulder . . . ." While Santistevan was falling he stabbed defendant in the shin. Defendant kicked Santistevan a few times after he fell to the ground. Defendant showed the officers the places he said he had been stabbed. The officers photographed them.
While the information refers to the piece of wood as a "railroad tie," it was entered into evidence as a "wood post," and described in the record as four inches by four inches and from photographs, it appears to be a weathered piece of wood approximately four feet long with one end tapering to a point. Therefore, we shall refer to it as a wood post.
DISCUSSION
I. Defendants Requested Jury Instructions
Defendant contends that the trial court erred in denying two instructions he requested. His first claim pertains to an instruction on provocation, which he claims was superior to the instruction that was given. As appears, there is no significant difference. The second claim pertains to an instruction on unreasonable defense of self or others as to involuntary manslaughter. Defendants proposal was legally incorrect and if there was error in failing to address the point sua sponte, it was harmless. Accordingly, the contentions of prejudicial instructional error are not meritorious.
A. Instruction on Provocation
Defendant offered and the trial court rejected the following instruction on provocation: "A defendant may act in the heat of passion at the time of the killing as a result of a series of events which occur over a considerable period of time. Where the provocation extends for a long period of time, you must take such period of time into account in determining whether there was a sufficient cooling period for the passion to subside. The burden is on the prosecution to establish beyond a reasonable doubt that the defendant did not act in the heat of passion."
In lieu, the court gave CALCRIM No. 570, in pertinent part as follows: "While no specific type of provocation is required, slight or remote provocation is not sufficient. [¶] Sufficient provocation may occur over a short or long period of time. [¶]. . . [¶] If enough time passed between the provocation and the killing for an ordinary person of average disposition to `cool off and regain his clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis."
Defendant argues that his instruction better addresses a critical concept. In his view the phrase "over a considerable period of time" is superior to "over a . . . long period of time" because it is more amenable to "the consideration of a multiplicity of events building up over considerable time." Even where a proposed instruction is pertinent and substantially correct in content and form, the court may substitute its own correct and pertinent instruction. "[I]t is claimed that the defendant is entitled to have the instructions asked, if sound in themselves, submitted to the jury in the precise language adopted by counsel, without any modification or addition by the Court. To this principle we cannot subscribe. . . . [W]e know of no rule of law which requires the Court to present the law in the precise language and arrangement selected by counsel, without change, subtraction or addition." (People v. Dodge (1866) 30 Cal. 448, 450; see also, e.g., 5 Witkin & Epstein, California Criminal Law (3d ed. 2000) Criminal Trial, § 608, p. 867.) There is simply no significant difference between saying that provocation can occur over a "long" or a "considerable" period, hence no requirement that the instruction be given using defendants term.
B. Instruction on Unreasonable Self-defense and Involuntary Manslaughter
Defendant requested the following instruction on unreasonable self-defense:
"The principles of self-defense are founded on the doctrine of necessity. This foundation gives rise to two closely related rules which are applicable in this case. First, only that force which is necessary to repel an attack may be used in self-defense; force which exceeds the necessity is not justified. . . . Second, deadly force or force likely to cause great bodily injury may be used only to repel an attack which is in itself deadly or likely to cause great bodily injury; thus `[a] misdemeanor assault must be suffered without the privilege of retaliation with deadly force. . . . Under these two principles a person may be found guilty of unlawful homicide even where the evidence establishes the right of self-defense if the jury finds that the nature of the attack did not justify the resort to deadly force or that the force used exceeded that which was reasonably necessary to repel the attack.
"If such were the case, a conviction for involuntary manslaughter would be appropriate where the jury finds that the nature of the attack did not justify the resort to deadly force in self-defense or that the force used in self-defense exceeded that which was reasonably necessary to repel the attack."
Defendants proposed instruction is based on People v. Welch (1982) 137 Cal.App.3d 834, 840 (Welch). Welch reasons that "`a person may be found guilty of unlawful homicide even where the evidence establishes the right of self-defense if the jury finds that the nature of the attack did not justify the resort to deadly force or that the force used exceeded that which was reasonably necessary to repel the attack." (Ibid., fn. 1.) We do not see how this doctrine could apply on the facts of this case.
A right to self-defense would have required actual and reasonable anticipation of an imminent future unlawful attack by Santistevan. However, everything in the record indicates that Santistevan was refusing to fight, staying in his chair, leading to defendants admitted frustration. If there were any basis for an apprehension of an aggressive attack by Santistevan, that attack would have to have encompassed an assault with a knife. As defendant notes elsewhere in his brief, if such an imminent knife assault by Santistevan were unlawful, it would have justified the resort to deadly force. (See, e.g., People v. Quach (2004) 116 Cal.App.4th 294, 301-302.)
Moreover, defendants awkward proposed instruction is not a correct statement of the law concerning mitigation of murder to manslaughter if an apprehension of such an attack were unreasonable. For example, it says that if there were such excessive force self-defense, the killing is involuntary manslaughter. However, the law is that if a mitigated homicide occurs with intent to kill or with conscious disregard for life, the offense is voluntary manslaughter. (People v. Blakeley (2000) 23 Cal.4th 82, 85, 91, disapproving Welch, supra, 137 Cal.App.3d 834, among other cases, on this point.)
It is true, as defendant notes, that notwithstanding misstatements of the law in defendants proposed instruction, the court is obliged sua sponte to instruct, or to instruct fully, on every lesser included offense and theory thereof which is supported by the evidence. (E.g., People v. Breverman (1998) 19 Cal.4th 142, 162.) If we assume, for the sake of argument, that defendant might have attacked Santistevan to thwart a perceived imminent unlawful attack on himself or his companions, then he was entitled to an instruction on actual but unreasonable defense of self or others. But the trial court did give such an instruction. It instructed: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense or imperfect defense of another."
Assuming arguendo that the evidence could support a lesser included offense of manslaughter on a theory of unreasonable self-defense, the jury rejected that partial defense in rejecting voluntary manslaughter and finding defendant guilty of murder. (See, e.g., People v. Lasko (2000) 23 Cal.4th 101, 114.) Moreover, as the Attorney General suggests, if the jury were amenable to the fact conclusions underlying mitigation to involuntary manslaughter, it would have reached a verdict of involuntary manslaughter under the instructions given concerning that offense; e.g., "In order to prove murder or voluntary manslaughter, the People have the burden of proving beyond a reasonable doubt that the defendant acted with intent to kill or with conscious disregard for human life. [¶] If the People have not met either one of these burdens, you must find the defendant not guilty of murder and not guilty of voluntary manslaughter."
Error, if any, in failing to instruct on unreasonable self-defense and involuntary manslaughter, was harmless. (See, e.g., People v. Wright (2006) 40 Cal.4th 81, 99.)
II. Motions in Limine
Defendant contends that the trial court erred in denying motions in limine to permit the two former codefendants to testify for the defense: (1) without impeachment with their voluntary manslaughter convictions for their roles in this incident and (2) in civilian clothing. He argues that the trial court abused its discretion under Evidence Code section 352, in failing to exclude this evidence as more unduly prejudicial than probative. The argument is unpersuasive and the contention of error is without merit.
A. Evidence the Defense Witnesses Were Convicted
Defendant concedes that voluntary manslaughter is a crime of moral turpitude and thus had probative value for purposes of impeachment. However, he then reverses field and asserts that such a conviction has no probative value on the issue of truthfulness. The inconsistency is based on an elementary error.
Formerly, appellate courts exercised a broader scope of review of decisions in criminal proceedings admitting potentially prejudicial evidence. (See, e.g., People v. Beagle (1972) 6 Cal.3d 441.) Under Beagle we revisited the exercise of trial court discretion to promulgate common law standards setting the range of discretion in particular contexts. However, under the California Constitution, article I, section 28, such free-ranging appellate intervention is no longer available. (See People v. Castro (1985) 38 Cal.3d 301, 312 (Castro).) We must uphold the exercise of discretion under Evidence Code section 352 unless the result is undeniably unreasonable, i.e., such that no jurist could reasonably maintain that the application of the governing principles warrants the result reached by the trial court. (Cf. People v. Muldrow (1988) 202 Cal.App.3d 636, 643-644.) Thus, defendants cited case law from the Beagle era (e.g., People v. Holt (1984) 37 Cal.3d 436, 456-457) or governed by that regime (e.g., People v. Gurule (2002) 28 Cal.4th 557, 608), is inapposite.
"The intention of the drafters of the [Proposition 8] initiative was to restore trial court discretion as visualized by the Evidence Code and to reject the rigid, black letter rules of exclusion which we had grafted onto the code by the [People v. Antick (1975) 15 Cal.3d 79] line of decisions. Our conclusion is based on the historical context of subdivisions (d) and (f) of section 28 [of article I of the California Constitution]. The dissatisfaction of the proponents with the appellate courts was expressed in the literature that supported the initiative. It was also expressed in the mandatory nature of the language of the subdivisions (`relevant evidence shall not be excluded in subd. (d) and prior convictions `shall . . . be used in subd. (f)). Nevertheless, the initiative itself expressed continued trust in the discretion of the trial courts; despite the mandatory admonitions, that discretion under [Evidence Code] section 352 was expressly retained." (Castro, supra, 38 Cal.3d at p. 312.)
Defendant next cites United States v. Thomas (3d Cir. 1993) 998 F.2d 1202, in support of his claim that introduction of evidence of the convictions of codefendants is more prejudicial than probative. Once again, he fails to note his authority has been overtaken. As the Attorney General points out, Thomas was overruled in United States v. Universal Rehabilitation Services (PA), Inc. (3d Cir. 2000) 205 F.3d 657: "Any analysis pursuant to Federal Rule[s] [of Evidence, rule] 403 must begin with a determination as to whether the evidence has probative value. It is well-settled that evidence of a testifying witnesss guilty plea or plea agreement may be introduced for probative, and therefore permissible, purposes. As this Court has identified on numerous occasions, such purposes include: (1) to allow the jury accurately to assess the credibility of the witness; (2) to eliminate any concern that the jury may harbor concerning whether the government has selectively prosecuted the defendant; and (3) to explain how the witness has first-hand knowledge concerning the events about which he/she is testifying." (205 F.3d at p. 665.) "In particular, the pleas were admissible to counteract the possibility that the jury might believe that [defendants] Universal and Lukesh were being selectively prosecuted. See, e.g., [United States v. Gaev (3d Cir. 1999) 24 F.3d 473, 479]. In other words, once Bonjo and Martin [who pleaded guilty prior to trial] testified concerning their participation in the events for which Universal and Lukesh had been indicted, the jury reasonably might conclude that the government was attempting to single out Universal and Lukesh for prosecution." (205 F.3d at p. 667.)
Thus, the line of federal authority to which defendant draws our attention supports the view that there was no abuse of discretion in admitting evidence of the defense witnesses convictions.
Defendants remaining argument is that, regardless of the general rule, in this case the fact of conviction should have been barred because the codefendant witnesses were not perpetrators and could only have been convicted as aiders and abettors of a crime perpetrated by him. From this premise he reasons their convictions were extraordinarily unduly prejudicial as implying a prior adjudication that he was guilty of unlawful homicide.
Defendant does not provide a citation to the record showing that he made any such claim at trial. (Evid. Code, § 353.) More fundamentally, assuming arguendo his claim of undue prejudice could have merit, his premise is entirely insupportable. The evidence indicated this unlawful homicide had concurrent perpetrators; another malefactor or other malefactors caused Santistevan to die by stabbing him. Defendant submits that, notwithstanding the autopsy testimony, there is a "complete absence of any evidence that anyone had stabbed [Santistevan]." The presence of knives at the scene, evidence of other broken bottle stab wounds, and the autopsy testimony are substantial circumstantial evidence to support a finding of concurrent perpetrators. Thus, the guilt of the defense witnesses was not necessarily derivative of defendants guilt.
B. Visual Evidence the Witnesses Were Incarcerated
Defendant argues that the trial court erred in denying a related motion in limine to permit the two former codefendants, who as a result of their guilty pleas were now imprisoned, to testify in civilian clothing. Defendant makes the same argument concerning this ruling as on the preceding question of impeachment. It fails to persuade for the reasons already given.
The purpose of allowing civilian clothes is to hide the status of the witness as a convict, when that would be irrelevant or unduly prejudicial. (See, e.g., People v. Froehlig (1991) 1 Cal.App.4th 260, 264; Annot., Propriety and Prejudicial Effect of Witness Testifying While in Prison Attire (1982) 16 A.L.R.4th 1356.) Where evidence of the conviction is relevant and will be admitted in any event, it is not error to deny the request that consequences of conviction be suppressed.
For all the foregoing reasons, we conclude there was no abuse of discretion in admitting evidence that the witnesses had been convicted or in denying permission for them to testify in civilian clothing.
III. CALCRIM No. 373
Defendant contends that the trial court erred in instructing that CALCRIM No. 373 did not apply to the former codefendant witnesses and in failing to instruct sua sponte that the jury should not use the convictions of the witnesses as evidence of defendants guilt. He argues that this instruction reinforced the undue prejudice that occurred under his theory, discussed above, that the convictions of the witnesses were necessarily derivative of his guilt. The argument is unpersuasive and the contention of error has no merit.
The jury was instructed using CALCRIM No. 373 as follows: "The evidence shows that other persons may have been involved in the commission of the crime charged against the defendant. There may be many reasons why someone who appears to have been involved might not be a codefendant in this particular trial. You must not speculate about whether those other persons have been or will be prosecuted. Your duty is to decide whether the defendant on trial here committed the crime charged. [¶] This instruction does not apply to the testimony of [Santistevans stepdaughter and A.G.]."
The last paragraph is an optional coda suggested when codefendants testify: "If other alleged participants in the crime are testifying, this instruction should not be given or the bracketed portion should be given exempting the testimony of those witnesses. (People v. Carrera (1989) 49 Cal.3d 291, 312; People v. Sully (1991) 53 Cal.3d 1195, 1218; People v. Williams (1997) 16 Cal.4th 153, 226-227.)" (Bench Notes to CALCRIM No. 373 (2006-2007), 2d par., p. 157.)
As we have described, the theory that the convictions of the witnesses were necessarily derivative of defendants guilt is incorrect. Defendants only new twist on the theory as to use of CALCRIM No. 373 is that, because only some of the former codefendants testified, the jury direction that the instruction did not apply to the two who did testify "left the jury free to use their convictions (and imprisonment) for that homicide as evidence of [defendants] guilt of that homicide." However, as the Attorney General notes, the jury was also instructed:
"During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other. [¶] If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of the witnesss testimony."
This suffices to ensure that the conviction of the codefendants would not be used to detract from defendants presumption of innocence. No more was required to satisfy the courts obligation to instruct sua sponte. The contention that the trial court erred in giving CALCRIM No. 373 is not meritorious.
IV. Aiding/Abetting and Natural and Probable Consequences Theories
Defendant contends that the trial court erred in submitting this case to the jury on theories of liability for aiding and abetting and natural and probable consequences. Defendant argues that these theories were inapplicable "because the evidence was undisputed that [he] was the person who killed [Santistevan]." As explained above, the evidence was that other perpetrators knife blows contributed to or caused the death and the claim that defendant was the sole perpetrator is untenable. Accordingly, the court did not err in permitting the prosecution to pursue theories of aiding and abetting or natural and probable consequences liability.
V. Ineffective Assistance of Counsel
Defendant contends that his trial counsel was prejudicially incompetent in various respects. For the most part these claims rest on misconceptions we have previously addressed. None of them is persuasive and the contention of error is without merit.
"Under Strickland v. Washington [(1984) 466 U.S. 668 ], our review of counsels performance is to be highly deferential. As the court there noted: `It is all too tempting for a defendant to second-guess counsels assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsels defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsels challenged conduct, and to evaluate the conduct from counsels perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." [Citation.] There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." (People v. Duncan (1991) 53 Cal.3d 955, 966, quoting from Strickland, supra, 466 U.S. at pp. 689-690 [80 L.Ed.2d at pp. 694-695].)
Defendant first argues that counsel was prejudicially ineffective in failing to request a limiting instruction that the jury should not use the convictions of the defense witnesses as evidence of his guilt. This is yet another iteration of the mistaken theory that these convictions, of necessity, rested on defendants guilt. As related above, the jury was given an appropriate limiting instruction on this point. We see no reason to fault trial counsel for failing to ask for more.
Defendants second argument is that counsel was prejudicially ineffective in failing to object to evidence of the convictions of defendants witnesses on the ground that it was improper opinion evidence. Defendant submits that evidence the defense witnesses had been convicted of voluntary manslaughter could have been excluded on the ground that it constitutes improper opinion evidence of guilt. He relies on cases (e.g., People v. Torres (1995) 33 Cal.App.4th 37, 46-47) holding that a witness cannot express an opinion concerning the guilt or innocence of the defendant who is on trial. These cases are inapposite. It suffices to note that in general, "[f]or the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony. . . ." (Evid. Code, § 788.)
Defendant argues that counsel was prejudicially ineffective in failing to object to submitting the case to the jury on theories of natural and probable consequences and aiding and abetting. As we have explained previously, such objection would have been legally untenable. "It is not incumbent upon trial counsel to advance meritless arguments or to undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel." (People v. Shelburne (1980) 104 Cal.App.3d 737, 744.)
Defendant argues that counsel was prejudicially ineffective in failing to request pinpoint instructions that if certain of the defense accounts of the incident were true: (1) Santistevan "had no right to use deadly or other excessive force in response to a simple assault or battery" and (2) defendant "had the right to use deadly force in the context here, confronted by [Santistevans] unauthorized use of deadly force, even if [defendant] had been one of the initial aggressors." The argument is unpersuasive as the proffered instructions are objectionable as incomplete and argumentative.
The jury was given a suite of instructions on the core concepts of self-defense, defense of others, and the mitigation afforded by actual but unreasonable belief in the need for self-defense or defense of others. This included instructions on the limitation of the right of a lawful occupant to use only reasonable and proportionate force to resist trespass. These instructions provided an adequate basis for defense counsels argument that defendant was not guilty of an unlawful homicide.
"A criminal defendant is entitled, on request, to a[n] instruction `pinpointing the theory of his defense. (People v. Wright (1988) 45 Cal.3d 1126, 1137; People v. Sears (1970) 2 Cal.3d 180, 190.) As we recently explained, however, instructions that attempt to relate particular facts to a legal issue are generally objectionable as argumentative (Wright, supra, at p. 1137), and the effect of certain facts on identified theories `is best left to argument by counsel, cross-examination of the witnesses, and expert testimony where appropriate. (Id. at p. 1143.)" (People v. Wharton (1991) 53 Cal.3d 522, 570.)
The additional instructions that defendant suggests his counsel should have requested attempt to relate particular facts to a legal issue and are argumentative; e.g., in suggesting the jury draw conclusions from the evidence favorable to defendant. They are also incomplete. Indeed, we do not see how defendant could have met the requirements for this theory of mitigation on the facts of this case. If defendant was a wrongdoer, e.g., a trespasser, he would have been required to retreat unless he could not do so with safety. (See People v. Hecker (1895) 109 Cal. 451, 464.) However, even accepting defendants version of the incident, after the initial fracas he took off his shirt, looked around for a weapon, and picked up the wood post, before charging the still-seated Santistevan. Counsel could have reasonably eschewed such a request on these grounds.
The posited instruction incorrectly asserts an unequivocal right of defendant to use deadly force in the first wrongdoer situation posited. However, in that situation "it is the duty of the first wrongdoer before he can avail himself of the plea to have retreated to the wall, to have declined the strife and withdrawn from the difficulty, and to have killed his adversary, under necessity, actual or apparent, only after so doing. If, however, the counter assault be so sudden and perilous that no opportunity be given to decline or to make known to his adversary his willingness to decline the strife, if he cannot retreat with safety, then as the greater wrong of the deadly assault is upon his opponent, he [would] be justified in slaying, forthwith, in self-defense." (Hecker, supra, 109 Cal. at p. 464.)
Defendant lastly argues that counsel was prejudicially ineffective in failing to adduce evidence that the former codefendants had only been convicted of voluntary manslaughter. Defendant fails to suggest a basis for the relevancy of such evidence. As the trial court noted, even assuming it was relevant, the degree of the unlawful homicide of the other convictions is unduly prejudicial to the prosecution in tending to suggest that is the appropriate grade of the offense as to all concerned. Moreover, to combat that implication could easily necessitate undue consumption of time to examine the precise role the others played in the incident, in effect a trial as to their roles, and evidence of the theory and practice of plea bargaining. In sum, the unlikelihood of obtaining a favorable ruling on this point leaves a decision not to pursue it a reasonable tactical choice by trial counsel.
DISPOSITION
The judgment is affirmed.
We concur:
SIMS, Acting P. J.
HULL, J.