Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Tomson T. Ong, Judge. Los Angeles County Super. Ct. No. NA074190
Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters, Steven E. Mercer and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Faith Eileen Dean appeals her conviction for second degree robbery. She contends there was insufficient evidence to support her conviction. She argues the trial court abused its discretion by denying her motion for a continuance to investigate and produce a potential witness. She also argues the trial court committed reversible error by excluding her expert witness without giving her an opportunity to change her plea so as to make the expert’s proposed testimony admissible, and that her counsel was ineffective for not moving to change her plea. She contends that two jury instructions, CALCRIM No. 300 and CALCRIM No. 1600, were not correct statements of law. She further contends that a third jury instruction, CALCRIM No. 361, was not warranted by the evidence in this case. Finally, she asks that we reverse based on the cumulative prejudicial effect of these errors combined, even if no single error requires reversal.
We find no prejudicial error, and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
On April 27, 2007, appellant entered Northgate Market (the Market) in Long Beach. She placed deodorant, cheese, meat and two avocados in her purse, then exited the store without paying for the items.
Cornelio Martinez Munoz (Martinez) was a security guard employed by the Market. Martinez saw appellant put the items in her purse and walk through the checkout line without paying for them. When Martinez saw appellant walking to the front door, he exited through a side door. He went around the building and met her in front of the store. When he caught up to appellant, he said, in English, “You the arrest.” (Martinez speaks limited English.) He then asked appellant for her purse in Spanish. Appellant looked scared. Martinez thought she was going to run, so he grabbed her by both arms and took her back into the store.
Appellant became aggressive toward Martinez, who then asked Daniel Perez, another security guard, for assistance. As Perez assisted Martinez, appellant tried to pull away and yelled at them to let her go. Perez also speaks limited English, but said in English to appellant, “You stay under arrest.” Appellant cursed at Martinez and Perez, saying “mother fucker security.” Appellant was uncooperative, and the guards had to struggle to hold on to her. At some point during the struggle, Perez felt two or three hits to his face and bit his tongue. Perez eventually was able to handcuff appellant. She continued to yell and struggle after she was handcuffed.
Perez recovered the stolen items from appellant’s purse. A store manager called the police, who arrived about 15 minutes later. The incident was recorded on the Market’s security camera, which captured 16 different visual angles, but no audio.
Appellant was charged with one count of second degree robbery. She pled not guilty. At trial, appellant admitted taking the items from the store without paying for them; the only disputed issue was the element of force. The jury returned a verdict of guilty on the count charged. Appellant timely appeals from the judgment of conviction.
DISCUSSION
I
Appellant asserts there is insufficient evidence to support the robbery conviction. “In deciding the sufficiency of the evidence, we ask whether ‘“after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”’” (People v. Maury (2003) 30 Cal.4th 342, 403.)
Robbery is defined as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (Pen. Code, § 211.) Mere theft may become robbery “if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot.” (People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8; see also People v. Estes (1983) 147 Cal.App.3d 23, 28 [“It is sufficient to support the conviction that appellant used force to prevent the guard from retaking the property and to facilitate his escape”].) Robberies in which force or fear is not used until after the perpetrator has already gained possession of the loot are sometimes called “‘Estes robberies’” in reference to People v. Estes, supra, 147 Cal.App.3d 23. (Miller v. Superior Court (2004) 115 Cal.App.4th 216, 223.) The robbery for which appellant was convicted may be characterized as an Estes robbery.
All further statutory references are to the Penal Code.
Appellant contends no rational juror could have found beyond a reasonable doubt that the prosecution established the essential element of force. She does not challenge the sufficiency of the evidence as to any other element of the crime. When faced with a claim of insufficient evidence, an appellate court’s inquiry is limited to whether there is substantial evidence in the whole record to support the verdict. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Substantial evidence is that which is “reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Ibid.)
Both parties agree on the following: While shopping at the Market, appellant put deodorant, cheese, meat and avocados in her purse and exited the store without paying for those items. After appellant exited the store, Martinez confronted her, placed his hands on her and took her back into the store. Appellant struggled, trying to pull away from Martinez. Martinez asked Perez to help him detain her. Appellant continued to struggle after Perez joined Martinez. Working together, the two guards handcuffed appellant. During the struggle, Perez’s face was hit and he bit his tongue hard enough to draw blood, but he does not know exactly what happened.
At trial, the prosecution relied on the struggle and the injury to Perez’s tongue to satisfy the element of force. The prosecution characterized the struggle as appellant’s attempt to retain or escape with the loot. The defense disputed this characterization and argued that appellant struggled because she did not initially recognize the men who grabbed her as security guards.
Appellant testified on her own behalf. She called no other witnesses. She did not dispute that there was a struggle, but explained she was “scared” when a “big man” suddenly “came at” her and pushed her into the store. She testified she tried to turn around to face Martinez after he grabbed her because she is hard of hearing and reads lips. She also testified she told Martinez he did not have to touch her because she would do whatever he wanted. She stated she could not understand Martinez and Perez because they were speaking only in Spanish, and she did not hear them identify themselves as security guards or tell her she was under arrest. According to appellant, she did not realize Martinez and Perez were security guards until after she was in handcuffs. She contrasted this arrest to a previous experience she had when stopped by a security guard for shoplifting at Nordstrom’s. There, the guard showed her a badge and identified himself as security.
The prosecution asserted appellant knew Martinez and Perez were security guards because they were in uniform, and because they managed to tell her she was under arrest despite their limited English. The prosecution’s witnesses included Martinez, Perez and Ulysses Gonzalez, the guard who had apprehended appellant at Nordstrom’s. The prosecution also entered the Market’s security camera footage into evidence. Martinez testified that he said, in English, “You the arrest.” Perez testified that he said, “You stay under arrest,” also in English. Martinez also testified that, during the struggle, appellant yelled, “mother fucker security,” undercutting her claim that she did not know Martinez and Perez were security guards. The prosecution argued appellant’s prior experience with a security guard made it unlikely she did not know what was happening when she was approached immediately after walking out of the Market without paying for the items in her purse.
We find substantial evidence in the record to support the robbery verdict. Many of the facts critical to the element of force are disputed, but determining credibility of witnesses and assigning weight to evidence is the function of the jury. “‘“Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.”’” (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) A reasonable juror could have concluded appellant knew she was being apprehended by security guards and she struggled with the guards in hopes of escaping with or retaining the stolen items in her bag.
This court has reviewed the relevant portion of the security camera footage, as requested by appellant. Nothing in it changes our conclusion.
II
Appellant asserts the trial court committed reversible error by denying her motion for a continuance to investigate and produce a witness visible on security camera footage from the Market.
On June 18, 2007, appellant served a subpoena duces tecum on the Market for security camera footage from the time of the robbery, but the Market did not respond to the subpoena. Trial commenced with voir dire and jury selection the morning of July 24, 2007. That afternoon, the prosecution informed appellant they had discovered the security camera footage was in their possession. Defense counsel first had an opportunity to view the footage the morning of July 25. On July 26, appellant moved for a continuance of a day or two in order to locate a witness visible on the security footage. The witness was a man in a white tank top, visible at one of the cash registers immediately before appellant was apprehended nearby. The witness stepped out of the store briefly, but he came back inside once the struggle began and can be seen watching appellant and the guards.
The record does not reveal when or how the prosecution came to be in possession of the security camera footage. Appellant does not allege that any delay in turning over the footage was a result of prosecutorial misconduct.
Despite there being other potential witnesses—shoppers and cashiers—visible on the footage, appellant argued to the trial court that this man appeared to be paying particularly close attention to the interaction between appellant and the guards. Appellant claimed the witness was close enough to hear what language the guards were speaking in and what they said, information relevant to appellant’s defense that she did not know she was being stopped by security guards. The identity of the witness was unknown, but the camera footage showed him sliding a card through the credit card reader, so appellant anticipated he could be located in a day or two through credit card records. The trial court denied the motion to continue, reasoning that whether the witness could be located and whether he would have any useful information was pure speculation.
“Continuances shall be granted only upon a showing of good cause.” (§ 1050, subd. (e).) “To establish good cause for a continuance, defendant had the burden of showing that [s]he had exercised due diligence to secure the witness’s attendance, that the witness’s expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven.” (People v. Howard (1992) 1 Cal.4th 1132, 1171.) “‘The granting or denial of a continuance during trial traditionally rests within the sound discretion of the trial judge.’ [Citation.] ‘The burden is on [the defendant] to establish an abuse of judicial discretion.’” (People v. Beeler (1995) 9 Cal.4th 953, 1003.)
Appellant contends she established good cause for a continuance, and the denial of her motion was thus an abuse of discretion. The trial court’s remarks indicate the court was unconvinced good cause was established. Appellant moved quickly for a continuance once the security camera footage was located, but the court pointed out she had not followed up to compel production of the footage after the initial subpoena to the Market was ignored. Appellant did not know the witness’s identity, nor did she know when he could be located from the credit card records, if at all. The court emphasized that appellant could do nothing but speculate about what the witness’s testimony would be. Neither the defense nor the prosecution had spoken to the witness, so no one knew whether he could provide any material information. Finally, the trial court was unconvinced this witness had information unavailable from any other source. The court pointed out that appellant chose not to question the cashiers who had been working at the time and had been at about the same proximity as the unidentified man.
Appellant asserts she made the necessary showing of good cause, but these arguments, too, are speculative. Appellant’s brief claims, “it was expected this witness’[s] testimony was material” and “it was believed the witness could be contacted within a day or two.” (Italics added.) Such equivocal assurances do not support a claim that the trial court abused its discretion in denying the continuance. (See People v. Beeler, supra, 9 Cal.4th at p. 1004.) We find the trial court did not abuse its discretion when it denied appellant’s motion to continue.
Appellant points to comments made by the trial court in connection with this ruling as indicative of bias or a predisposition to rule against the motion. After denying the motion to continue, the judge related a personal anecdote about his experience witnessing an Estes robbery. Appellant contends that the judge’s remarks reveal that he thought all Estes robberies were factually similar, and that he was dismissive of eyewitnesses as “lookie-lous.” The Attorney General points out that appellant forfeited this issue by failing to object at the time the comments were made, a point that is well taken. (See People v. Mitcham (1992) 1 Cal.4th 1027, 1053 [“Defendant’s failure to object at trial, however, particularly where (as here) such action would have permitted the court to clarify any possible misunderstanding resulting from the comments, bars his claim of error on appeal”].)
In the challenged remarks, the judge said, “I too have been a witness in an Estes robbery, believe it or not, and dreaded it because it happened in the jurisdiction in which I sit. And I’m hoping that I didn’t have to become a witness, and I gladly am not a witness and I did not handle that case because you don’t want the judge to say, oh, yeah, that’s an Estes robbery that just went down, and here is my reason for it. I prefer to have that defendant have his day in court. But in that particular case, just like any other Estes robbery, things happen so fast, words are exchanged. . . . I was in cash register No. 3 and the thing happened down past cash register No. 1, about 5 to 10 feet. And audibly, you know, we’re speculating as to what the person can and cannot testify. It’s one of the lookie-lou[s], the curious citizen, and there were many curious citizens.”
In any case, we do not believe the comments show bias or an inability to rule impartially on the defendant’s motion to continue. (See People v. Kagan (1968) 264 Cal.App.2d 648, 662-663 [finding the trial judge’s illustrative story, based on his own experience, was not indicative of personal bias].) The judge made the comments after he had ruled on the motion to continue and had given his reasons for the ruling. As discussed, the reasons given for denying the continuance show the decision was within the court’s discretion.
Appellant argues the trial court’s denial of her motion to continue deprived her of her constitutional right to present a defense. “‘“To effectuate the constitutional rights to counsel and to due process of law, an accused must . . . have a reasonable opportunity to prepare a defense and respond to the charges.”’” (People v. Riggs (2008) 44 Cal.4th 248, 296.) For the same reasons that the trial court did not abuse its discretion in denying the motion to continue, we find appellant was not deprived of her right to present a defense. “‘[I]t is not every denial of a request for more time that violates due process even if the party fails to offer evidence . . . .’ [Citation.] Instead, ‘[t]he answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.’” (People v. Howard, supra, 1 Cal.4th at pp. 1171-1172.) We note that appellant could have had counsel or an investigator attempt to locate the witness despite the denial of a continuance. If the witness was helpful, but located too late for appellant’s case in chief, appellant could have presented any newly discovered material evidence in support of a motion for a new trial. (§ 1181, subd. 8.) There is no indication that this avenue or any others were pursued. Under the circumstances of this case, in which appellant made no effort to locate the witness, and did not show that he could be located within a reasonable time or that his testimony would be of any value to the defense, the denial of the motion to continue was not a denial of the right to present a defense.
III
Appellant makes three interrelated claims in connection with the trial court’s decision not to allow her expert witness to testify. Some background is necessary to understand these claims. Appellant wished to call Dr. Edward Fisher as an expert witness to testify that she had cognitive difficulties that impeded her ability to understand and respond to the security guards’ orders. Trial counsel explained this testimony was relevant to the issue of force, because it provided an explanation for her struggling with the guards. Trial counsel characterized appellant’s defense as self-defense or mistake. The court decided not to allow the expert to testify, because appellant had not entered a plea of not guilty by reason of idiocy. Trial counsel explicitly disagreed with the court’s characterization of the defense as idiocy and did not move to change appellant’s plea.
At the time of appellant’s trial, section 26 listed “idiots” among those incapable of committing crimes. The legislature has subsequently changed the language of section 26 to replace the word “idiots” with the phrase “[p]ersons who are mentally incapacitated.” (§ 26, as amended by Stats. 2007, ch. 31, § 3.) The legislature did not intend this amendment to “adversely affect decisional case law that has previously interpreted, or used, the term ‘idiot,’ . . . or any variation thereof.” (Legis. Counsel’s Dig., Assem. Bill No. 1640 (2007-2008 Reg. Sess.) Stats. 2007, ch. 31, § 5.) No disrespect is intended by this court’s continued use of the words “idiot” and “idiocy” in reference to the language operative when appellant was tried.
Appellant first argues the trial had not yet commenced when the ruling was made, so there was still time to change her plea. Second, because her trial attorney did not move to change her plea, she contends she received ineffective assistance of counsel. Finally, she claims that the trial court erred by not asking if she wanted to change her plea. Appellant does not appeal the underlying decision of the trial court that Dr. Fisher’s testimony would go only to idiocy, not to the proffered defenses of mistake and self-defense.
Appellant provides a detailed analysis of when trial commences, in order to demonstrate that a motion to change her plea would have been timely for the purposes of section 1016, subdivision 6. She acknowledges, however, that she never asked to withdraw her plea of not guilty or to enter a changed plea of not guilty by reason of idiocy. Accordingly, there seems to be no appealable issue with regard to the timing of the court’s decision not to allow Dr. Fisher to testify. We decline to consider whether a hypothetical motion to change appellant’s plea would have been timely.
Appellant claims that the failure to move to withdraw the not guilty plea shows she received ineffective assistance of counsel, because the expert testimony might have been admitted if she had pleaded not guilty by reason of idiocy. “‘“[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was ‘deficient’ because his ‘representation fell below an objective standard of reasonableness . . . under prevailing professional norms.’ [Citation.] Second, [s]he must also show prejudice flowing from counsel’s performance or lack thereof. [Citation.] Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”’” (People v. Weaver (2001) 26 Cal.4th 876, 925.) “‘“Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission.”’” (People v. Lucas (1995) 12 Cal.4th 415, 437.)
The record shows trial counsel made a tactical decision that an idiocy defense was not supported by the evidence. In order to succeed with an idiocy defense, appellant would have had to show she was incapable of knowing or understanding the nature and quality of her act and of distinguishing right from wrong at the time the offense was committed. (§ 25, subd. (b); People v. Phillips (2000) 83 Cal.App.4th 170, 173 [holding that section 25’s test for insanity is also the test for idiocy].) Trial counsel doubted appellant’s cognitive abilities were sufficiently limited to pass this test, explaining, “There are different levels of cognitive ability . . . limited ability does not necessarily rise to the level of idiosy [sic] or insanity, but it would govern . . . the speed with which she could understand what was being verbally communicated to her, her ability to process that and react to that.” Counsel explicitly disagreed with the court’s characterization of the defense as idiocy. He tried repeatedly to explain to the court that the expert testimony was being offered to support a defense of self-defense or mistake. Counsel was not ineffective for not moving to change the plea simply for the purpose of getting expert testimony admitted.
Appellant further asserts that, in order to avoid a miscarriage of justice, the trial court itself had a duty to ask whether appellant wanted to change her plea to not guilty by reason of idiocy. The cases appellant cites in support of this argument hold that the trial court must sometimes take affirmative steps to ensure a criminal defendant receives a fair trial. (See, e.g., People v. Carlucci (1979) 23 Cal.3d 249, 255 [court may call and question witnesses]; People v. Santana (2000) 80 Cal.App.4th 1194, 1206 [court must maintain appearance of neutrality]; People v. Santamaria (1991) 229 Cal.App.3d 269, 281 [court should minimize outside influences during jury deliberations].) But the court’s duty to ensure a fair trial does not extend to suggesting alternative trial strategies to the defense, at least on the facts presented by this case. As discussed above, it is questionable whether a plea of not guilty by reason of idiocy was supported by the evidence and whether such a plea would have been beneficial to appellant. Appellant’s counsel made it clear he was relying on mistake and self-defense rather than idiocy. We do not find it was necessary for the trial court to ask if appellant wanted to change her plea in order to prevent a miscarriage of justice.
IV
Appellant contends the trial court committed reversible error by instructing the jury with CALCRIM No. 300, which states, “Neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant.” Appellant claims that saying the defendant does not have to produce “all” evidence might leave the jury with the misimpression the defendant must produce “some” evidence.
Appellant concedes her trial counsel did not object to CALCRIM No. 300. The Attorney General does not argue that appellant has forfeited the issue. “Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant’s substantial rights. (§ 1259; [citations].) The question is whether the error resulted in a miscarriage of justice.” (People v. Anderson (2007) 152 Cal.App.4th 919, 927 (Anderson).) Appellant contends her rights to due process and a fair trial were violated as a result of the instructional error.
When reviewing a claim that the jury could have misconstrued an instruction, an appellate court considers “‘“‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.”’” (Anderson, supra, 152 Cal.App.4th at p. 938.) Appellant acknowledges her challenge to CALCRIM No. 300 has been raised and rejected in Anderson, supra, 152 Cal.App.4th at pages 937-938, and People v. Ibarra (2007) 156 Cal.App.4th 1174, 1189-1190 (Ibarra). She contends the issue was wrongly decided in both instances, and urges us to consider the matter anew. Anderson and Ibarra held that CALCRIM No. 300 correctly stated the law. (Anderson, supra, 152 Cal.App.4th at p. 938; Ibarra, supra, 156 Cal.App.4th at p. 1190.) In both cases, the jury received separate instruction on the prosecution’s burden of proof. (Anderson, supra, 152 Cal.App.4th at p. 938; Ibarra, supra, 156 Cal.App.4th at p. 1190.) Under “the usual presumption that jurors are able to correlate, follow, and understand the court's instructions,” the Anderson and Ibarra courts found it was not reasonably likely the jury understood CALCRIM No. 300 to shift the burden of proof to the defendant. (Ibarra, supra, 156 Cal.App.4th at p. 1190; Anderson, supra, 152 Cal.App.4th at p. 938.)
Likewise, the jury in this case was instructed regarding the presumption of innocence and burden of proof, and we will presume that the jurors were able to correlate, follow and understand the instructions they were given. Appellant has not pointed to anything in the record indicating the jury misunderstood or misapplied the legal standard. We do not find a reasonable likelihood the jury applied the instruction in an unconstitutional manner. The trial court did not err in instructing the jury with CALCRIM No. 300.
V
Appellant asserts the trial court also committed reversible error when it instructed the jury with CALCRIM No. 1600, which states, “To prove that the defendant is guilty of [robbery], the People must prove that: [¶] . . . [¶] . . . the defendant used force or fear to take the property or to prevent the person from resisting.” Appellant asserts this instruction is inadequate because it fails to explain that the victim’s fear must be reasonable and fails to define force. This argument, too, was considered and rejected in Anderson, supra, 152 Cal.App.4th at pages 944-946, but appellant urges us to reconsider the matter. As we next discuss, we need not reach the question of whether Anderson was correctly decided on this point.
Appellant did not object to CALCRIM No. 1600 during trial, nor did she request an amplifying instruction. The Attorney General argues she has forfeited this issue, but appellant asks us to consider her argument on the merits because the instruction given was legally incorrect. We agree with the Attorney General. “‘A party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial.’” (People v. Cleveland (2004) 32 Cal.4th 704, 750.) Appellant’s objection to CALCRIM No. 1600 is that it fails to define the terms “force” and “fear.” This is a charge of incompleteness, not incorrectness. Accordingly, we find appellant’s failure to request an amplifying instruction forfeited this issue for appeal.
Even if we assume for the sake of argument there was instructional error, appellant does not show she was harmed by the omission. An instruction that erroneously fails to define an element of an offense is harmless “if ‘it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.”’” (People v. Mayfield (1997) 14 Cal.4th 668, 774.) The prosecution neither presented evidence pertaining to fear nor argued appellant used fear to take the property, so additional instruction regarding fear would have been irrelevant. Appellant’s use of force was at issue, but the specific instruction she contends should have been given regarding force would have been irrelevant to the facts of this case. Appellant argues the instructions should have clarified that the force element of robbery requires “something more” than just that force required to commit the underlying offense. Yet the force relied on by the prosecution—appellant’s struggle with the guards—was completely separate from the force required to commit the underlying offense of taking items from the Market without paying for them. Appellant herself acknowledges the “something more” aspect of the force element only comes into play when the evidence raises the issue. The evidence in this case does not raise this issue. There is no reasonable doubt the jury would have reached the same verdict even if it had been given additional instructions defining force and fear.
VI
Appellant’s final contention regarding the jury instructions is that the trial court committed reversible error by giving CALCRIM No. 361, which states, “If the defendant failed in [her] testimony to explain or deny evidence against [her], and if [she] could reasonably be expected to have done so based on what [she] knew, you may consider [her] failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure.”
Trial courts must carefully consider whether CALCRIM No. 361 should be given. (People v. Lamer (2003) 110 Cal.App.4th 1463, 1469.) “If the defendant has not been asked a question calling for an explanation or a denial, as a matter of law the instruction may not be given. . . . [T]he mere fact that defendant’s story is contradicted by other prosecution evidence does not pave the way for giving the instruction, because contradiction is not by itself a failure to explain or deny.” (People v. Mask (1986) 188 Cal.App.3d 450, 455.)
We have found no published cases addressing CALCRIM No. 361, however numerous cases have addressed the predecessor instruction, CALJIC No. 2.62, which has similar language. Both parties cite to cases discussing CALJIC No. 2.62 as persuasive authority, and we shall do the same.
Appellant’s trial counsel objected to CALCRIM No. 361 on the ground that there was nothing appellant had failed to explain or deny. The trial court disagreed, and the following exchange ensued:
“THE COURT: How about the head butt, the WWE head butt?
“MR. MARSHALL [appellant’s trial counsel]: I don’t think she was asked about—it’s not a failure if she’s not asked.
“THE COURT: I respectfully disagree, she was asked open-ended questions [about] what happened. She never explained the head butt.
“MR. MARSHALL: But Officer Perez couldn’t explain what happened. He couldn’t even be specific about what happened.
“THE COURT: I realize that, but [CALCRIM No.] 361 is talking about the defendant’s failure to explain or deny.”
The “head butt” to which the court referred was the prosecution’s explanation for how Perez bit his tongue during the struggle. Perez himself never testified that appellant “head butted” him. When asked on direct examination how he was injured on the day of appellant’s arrest, he answered, “When I tried to help arrest her, during the struggle, I felt like two or three like shoves or like hits on my face. I don’t know if it was with the back of her head, but when I saw already I was already bleeding on the tongue. It felt like a bite, but I have not seen.” Two questions later, the prosecutor asked, “And you believe that possibly was in response to a head butt backwards?” Perez’s answer does not adopt this characterization; he simply replied, “It was during the struggle.”
When appellant later took the stand, neither the prosecutor nor defense counsel asked whether or how she injured Perez. The closest either came was when defense counsel asked appellant whether she had tried to hit, kick, bite or scratch the guards. Appellant answered she had not. Additionally, appellant testified she was struggling because she did not know why she was being grabbed by strangers, she was trying to turn to face the guards in order to read their lips, and she had no control over her body because she was being pushed and shoved. Though the jury did not have to accept this testimony as true, it did provide an explanation for how Perez was hit in the face. Because the defendant did not fail to explain or deny the evidence against her, we conclude it was error for the trial court to instruct the jury with CALCRIM No. 361.
There remains the question whether this error was prejudicial and requires reversal. Instructional error does not require reversal unless “it is ‘reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’” (People v. Lamer, supra, 110 Cal.App.4th at pp. 1471-1472, quoting People v. Watson (1956) 46 Cal.2d 818, 836.) Though many cases have found error in giving the predecessor instruction, CALJIC No. 2.62, appellant has identified none in which the error required reversal, nor have we found any that required that result. (See People v. Lamer, supra, at p. 1472 [citing cases where CALJIC No. 2.62 was found to be improper, but harmless].) The prosecution did not rely on CALCRIM No. 361 in its closing argument, nor did it argue that any inferences should be drawn from appellant’s alleged failure to explain how Perez was injured. Given the evidence against appellant, it is not reasonably probable the jury would have reached a different verdict in the absence of CALCRIM No. 361. We find the error was harmless.
VII
Appellant urges us to reverse based on the cumulative prejudicial effect of multiple errors, even if no single error requires reversal. Because we find a single harmless error, we decline appellant’s request.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., MANELLA, J.
The jury was not present when he made these remarks.