Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 081276-8
Bruiniers, J.
As is relevant here, a jury convicted defendant Santana Juan DeDios of assault with a deadly weapon (a knife) (Pen. Code, § 245, subd. (a)(1)) upon his wife and found that he personally inflicted great bodily injury when her hand was deeply cut during a struggle over the knife (§ 12022.7, subd. (e)).
All statutory references are to the Penal Code unless otherwise indicated.
DeDios contends that: (1) the great bodily injury enhancement must be reversed because the jury was not required to find that he had “personally inflicted” the injury; (2) the trial court erred by admitting evidence of his 1991 conviction for a knife assault; and (3) the court improperly gave a mid-deliberation supplemental instruction which diluted the reasonable doubt standard of proof. We find no error and affirm.
I. Background
DeDios was charged by information with having committed the following crimes on September 20, 2008: inflicting corporal injury on his wife, J.I., resulting in a traumatic condition (§ 273.5, subd. (a); count 1); assaulting J.I. with a deadly weapon (a knife) (§ 245, subd. (a)(1); count 2); making a criminal threat against J.I. (§ 422; count 3); causing his two minor daughters to suffer by endangering their health (§ 273a, subd. (b); counts 4 and 5); and falsely identifying himself to a peace officer (§ 148.9, subd. (a); count 6). As to counts 1 and 2, it was alleged that he personally inflicted great bodily injury under circumstances involving domestic violence within the meaning of section 12022.7, subdivision (e) (hereafter, section 12022.7(e)). As to counts 1 and 3, it was alleged that he personally used a deadly and dangerous weapon (a knife) within the meaning of section 12022, subd. (b)(1). As to count 2, it was alleged that the charged offense was a serious felony within the meaning of section 1192.7, subdivision (c) because he used a dangerous and deadly weapon (a knife). (§§ 667, 1192.7.) As to all of the counts, it was alleged that he had a prior conviction for a 1991 assault with a deadly weapon (§ 245, subd. (a)(1)) within the meanings of section 667, subdivisions (a)(1) and (b) through (i) and section 1170.12, and that he served a prison term for that conviction within the meaning of section 667.5, subdivision (b). Before trial, DeDios moved to dismiss the allegations under section 12022.7(e) because there was insufficient evidence that he personally inflicted great bodily injury on J.I. The court denied the motion.
The same allegation was made in the information as to count 3, but the court dismissed the allegation on grounds not relevant to this appeal.
The case went to trial before a jury in March 2009. DeDios’s oldest daughter Y.D., who was then 12 years old, testified that DeDios tried to kill J.I. DeDios lived with J.I. and their two daughters, but he usually stayed elsewhere on weekends. On Saturday, September 20, 2008, at about 10:00 p.m., he came home and slammed the door behind him. J.I., who was in Y.D.’s bedroom with Y.D., went to investigate. Y.D. heard J.I. and DeDios argue about whether J.I. was seeing someone else. Y.D. entered the hallway and saw that DeDios was intoxicated (his eyes were red) and angry and he was holding a knife. DeDios grabbed J.I.’s shirt and she pushed him away. DeDios then pushed J.I. into her bedroom. Y.D. heard screaming and yelling and about a minute later the door reopened. DeDios then aggressively pushed J.I. into the bathroom while still grabbing her shirt and they struggled in the bathroom. DeDios pointed the knife at J.I. and “then something happened that it ended up in my mom’s hands” and DeDios did not have it. The next thing she saw was J.I.’s hand “sliced open.” She did not see how J.I. was cut because at that moment she was in her bedroom calling her grandfather. At some point after J.I. and DeDios left the bedroom, DeDios swung his knife at Y.D. from about 10 to 15 feet away and asked her if J.I. “had someone else.” After J.I. was cut, DeDios left the apartment and took the knife with him. Y.D. called 911 and a recording of her call was played for the jury.
J.I. testified that when she heard the door slam, she left Y.D.’s bedroom and saw that DeDios was drunk, angry and holding a knife with a four-inch blade. She never told anyone that DeDios got the knife from the kitchen. DeDios accused J.I. of cheating on him and screamed, “ ‘I’m going to get you’ ” and “ ‘I’m going to kill you.’ ” J.I. testified that she was sure at the time of trial that DeDios told her he was going to kill her. She testified that DeDios had previously threatened to kill her when he was drunk and that she believed that he would kill her. She also knew that DeDios had served two years in prison for a knife stabbing before they were married, and she testified that the prior stabbing came to her mind when she saw him with the knife.
DeDios grabbed J.I.’s shirt and tried to force her into her bedroom. They struggled in the hallway, pushing, hitting and kicking each other, and he swung the knife at her left side once and missed. Although J.I. was partially pushed into the bedroom, she used her leg to block the bedroom door so it would not close. While they were struggling, J.I. grabbed the knife from the top and got it away from DeDios, but he got it back again. J.I. then found herself in the bathroom. “I felt this heat in my hand, and then I started bleeding.” She did not know exactly where or how she was cut. The physical struggle stopped once she was cut. DeDios wiped the knife on his pants, closed it, and left. J.I. received about 30 stitches in her hand from the web between her thumb and index finger to her pinky finger and on both sides of her hand. She lost feeling in her hand and had to undergo physical therapy for it.
J.I. acknowledged that she told police shortly after the incident that she grabbed DeDios’s knife “when he tried to hit somewhere around here.” She testified that she was referring to the moment when DeDios swung the knife at her side.
Antioch Police Officer Miles Williamson testified that he was dispatched to J.I.’s apartment at about 10:27 p.m. on September 20, 2008. When he arrived, the front door was wide open, J.I. and her daughters were gathered in the hallway, the daughters were distraught, and there was quite a bit of blood in the hallway, on J.I.’s hand, on a towel wrapped around J.I.’s hand, and in the bathroom.
DeDios was located and detained in the area. DeDios gave the officers a false name, but a wallet containing his identification was located about 50 feet from where he was detained. He had blood on his shirt and hands but was not injured himself.
Antioch Police Officer Rob Fromme interviewed J.I. on September 22 and 25, 2008. J.I. told Fromme that DeDios said, “ ‘I’m going to kill you.’ ” She told him that DeDios walked toward her with the knife and tried to stab her twice but she grabbed the knife on his second try. In another interview, she said she took the knife away from DeDios and cut her hand when DeDios pulled the knife back after she had taken it.
DeDios testified that he had consumed about 30 beers on September 20, 2008. At about 10:00 p.m., he went to the apartment very upset because he had been told that his wife was cheating on him. He slammed the door and went to the kitchen to get an old knife he had there and he held the knife behind his right hip, with the blade pointing down. He held the knife to scare J.I. so she would tell him the truth about whether she was seeing someone else. He did not tell her he was going to kill her, and he did not intend to kill her. He never pointed the knife at J.I.’s face and he never tried to stab her with the knife. When DeDios told J.I. to say whether she was seeing someone else, she lunged at him and a struggle ensued. He said they should go to the bedroom so they could talk away from the children, but J.I. pushed him out of the bedroom. DeDios still had the knife by his side, and J.I. (just before she went into the bathroom) grabbed at the knife and cut her hand accidentally, although she never got control of the knife. DeDios never tried to cut J.I. with the knife. He left the apartment after J.I. was cut because she kicked him out.
In closing arguments, the defense insisted that the case had been overcharged. “[T]his is a brandishing. This is holding a weapon and doing it in a threatening manner.... [T]hey were hitting each other.... She admits that she grabbed that knife and she was cut. And what happens next is [DeDios] freaks out. He gets scared, he sees the blood and he runs out the door.... [J.I.] painted a picture of him trying to kill her.... He wanted to scare her.... He was not trying to stab her. This was an accident[.]” On the criminal threat charge, defense counsel argued that DeDios testified that he did not tell J.I. he was going to kill her or that he was going to get her, Y.D. did not testify that she heard this threat, and J.I.’s testimony about the alleged threat was inconsistent and thus insufficient to prove the charge beyond a reasonable doubt. In rebuttal, the prosecutor argued, “If you believe that he is drunk and mad and holding the knife at his side and she lunged forward and grabs the knife and cuts herself, then just walk him if you believe his story.” He argued the injury was not accidental. “Her hand was injured from the top through the web of her thumb and index finger and across her palm. This is not an injury of grabbing a knife. This is a deep wound, a deep wound. You can see just how deep that went. This was a pressure injury.”
Jury deliberations began at 12:12 p.m. on April 1, 2009. At 4:20 p.m., the jury requested a general readback of Y.D.’s testimony and specifically her testimony “relevant to what she heard [DeDios] say.” A readback of Y.D.’s entire testimony was provided the next morning. At 11:45 a.m. on April 2, the jury asked if it could consider a lesser count if it was unable to reach a verdict on the charged count and at 1:30 p.m. the court told them they could not. At 2:04 p.m., the jury informed the court they were unable to reach a verdict on counts 1 (corporal injury on a spouse) and 3 (criminal threats). The court told the jury to put its verdict on count 2 in a sealed envelope and to continue deliberating on the other counts. At 4:12 p.m., before dismissing the jury for the day, the court encouraged the jury to continue deliberating in attempt to reach a verdict on the remaining counts.
The jury resumed its deliberations the following morning. At 10:40 a.m., they jury submitted the following question: “The definition of the requirements for count one (instructions: section 840; page 9) states that the People must prove ‘defendant willfully inflicted a personal injury.’ Does willfully taking a series of actions that can reasonably be assumed to create a significant possibility of injury meet the definition of willfully inflicting an injury, even if the specific impact between weapon and the victim’s body may not have been due to a willful act of the defendant at the moment of impact?” The jury also requested a readback of Williamson’s and Fromme’s testimony. The court ordered the readback of testimony and responded to the jury’s question. Two and a half hours later, the jury returned verdicts on all counts except count 1.
The court responded to the question as follows: “The answer to your inquiry should be contained entirely within jury instruction no. 840. When a defendant acts in a purposeful way, that act will be deemed to cause a physical injury if, and only if, the injury was a natural and probable consequence of the defendant[’]s act, i.e. a consequence that a reasonable person would know is likely to happen if nothing unusual intervenes.”
The jury found DeDios guilty of assault with a deadly weapon (count 2) and found true that allegation that he personally inflicted great bodily injury under circumstances involving domestic violence. The jury found DeDios guilty of making criminal threats (count 3) and found true the allegation that he personally used a deadly weapon in committing the crime. The jury found DeDios guilty of the two counts of cruelty to children and the count of falsely identifying himself to the police (counts 4–6). The court declared a mistrial on count 1, inflicting corporal injury on a spouse resulting in a traumatic condition.
The court sentenced DeDios to 13 years in prison, consisting of the middle term for the assault with a deadly weapon count (three years) plus a consecutive middle term for the personal use enhancement (four years); a consecutive one-third middle term for the criminal threats count (eight months) and the personal infliction of great bodily injury enhancement (four months); and a consecutive term for the prior conviction enhancement (five years). The court imposed concurrent sentences of one-third the middle terms for the child endangerment counts (four months) and the false identification count (two months).
II. Discussion
A. The Jury Instruction on the Great Bodily Injury Enhancement
DeDios argues, and the People concede, that the form jury instruction which was given for the section 12022.7(e) enhancement allegations of personal infliction of great bodily injury, erroneously omits the word “personally.” The parties disagree about whether this was prejudicial. We conclude the error was harmless.
Section 12022.7(e) provides: “Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years.” (Italics added.) The 2007 version of CALCRIM No. 3163, apparently used by the trial court to instruct the jury, provided in relevant part: “If you find the defendant guilty of the crimes charged in counts 1 or 2, you must then decide whether, for each crime, the People have proved the additional allegation that the defendant inflicted great bodily injury on [J.I.] during the commission of that crime, under circumstances of domestic violence.” (Italics added.)
The current version of CALCRIM No. 3163 states as relevant here, “If you find the defendant guilty of the crime[s] charged in Count[s] _____[, ]... you must then decide whether[, for each crime, ] the People have proved the additional allegation that the defendant personally inflicted great bodily injury on ___________________ during the commission... of that crime, under circumstances involving domestic violence....” (Italics added.)
The Supreme Court has held that “personally” is a critical term of the section 12022.7 enhancements. In People v. Cole, the Court construed “personally” in former section 12022.7 (Stats. 1979, ch. 145, § 17), which applied to “ ‘[a]ny person who, with the intent to inflict such injury, personally inflicts great bodily injury on any person other than an accomplice in the commission or attempted commission of a felony....’ ” (People v. Cole (1982) 31 Cal.3d 568, 570, fn. 1 (Cole).) The defendant in Cole had ordered his companion to kill the victim and, while the companion was carrying out the attack, had pointed a rifle at the victim and blocked his escape. (Cole, at p. 571.) The issue was whether the defendant, who was vicariously liable for the felony as an accomplice, was also vicariously liable for the enhancement. (Id. at pp. 571–572.) The court held that the section 12022.7 enhancement applied only to “a person who himself inflicts the injury.” (Cole, at p. 572.) The court relied on the plain language of the statute, which it concluded was consistent with the apparent purpose of the statute, to deter the infliction of great bodily injury. (Id. at pp. 572–573.) The court also surveyed the legislative history of section 12022.7 and other similar sentencing enhancements and concluded that the Legislature used the word “personally” when it intended “to draw the line of distinction at the actor who himself commits the prohibited conduct” and that the Legislature had chosen to “uniformly limit the class of persons to whom the ‘use’ and ‘great bodily injury’ enhancements are applicable to those who themselves commit the prohibited conduct.” (Cole, at p. 576.) In sum, the Supreme Court held “that in enacting section 12022.7, the Legislature intended the designation ‘personally’ to limit the category of persons subject to the enhancement to those who directly perform the act that causes the physical injury to the victim.” (Cole, at p. 579.)
In at least two other cases, courts have considered the meaning of “personally inflicts” in situations where no accomplices were involved and the issue was the directness of the connection between the defendant’s acts and the victim’s great bodily injury. In People v. Cross, the defendant had sexual intercourse with his stepdaughter, a minor, who became pregnant and later underwent a surgical abortion. (People v. Cross (2008) 45 Cal.4th 58, 61–62 (Cross).) The prosecutor argued that the victim’s pregnancy and abortion each separately qualified as great bodily injury for purposes of applying section 12022.7, subdivision (a). (Id. at p. 62.) The Supreme Court held that on the facts of that case the abortion alone did not support imposition of the enhancement because there was no evidence that the defendant personally performed the abortion. (Id. at p. 67.) The court, however, held there was no prejudicial error because the jury was correctly instructed that the enhancement applied if the defendant “personally” inflicted great bodily injury, which plainly communicated “that someone ‘in person’ [citation], that is, directly and not through an intermediary, ‘cause[s] something (damaging or painful) to be endured’ [citation].” (Id. at p. 68 [relying on dictionary definitions to construe the phrase “personally inflicts”].)
In People v. Rodriguez, another division of this court held that “personally inflicts” requires more than proximate causation. (People v. Rodriguez (1999) 69 Cal.App.4th 341, 347–352 (Rodriguez).) The issue in Rodriguez was whether the defendant personally inflicted an injury on a police officer who was harmed while pursuing the defendant. (Id. at p. 346.) During the chase, for which the defendant was ultimately convicted of willfully resisting a peace officer (§ 148.10), the officer tackled the defendant, both men fell to the ground, and the officer was knocked unconscious when he hit his head on the ground, sidewalk, or a lamppost. (Rodriguez, at p. 346.) The jury was asked to determine whether the defendant’s section 148.10 conviction was a serious felony because the defendant “personally inflict[ed] great bodily injury on any person, other than an accomplice” (§ 1192.7, subd. (c)(8)). (Rodriguez, at pp. 345–346.) The trial court instructed that “a person personally inflicts injury to another when he directly performs [an] act or acts that cause the physical injury.... [¶]... [¶] Criminal law has its own particular way of defining cause. A cause of injury is an act that sets in motion a chain of events that proceed a direct, natural and possible consequence of the act, the injury, and without which the injury would not occur.” (Id. at pp. 346–347.) Objecting to the instruction, the defendant argued that the prosecution had to prove personal infliction, not proximate causation. (Id. at p. 347.) The Court of Appeal agreed: “[T]he definition of cause is inaccurate in this context. To ‘personally inflict’ an injury is to directly cause an injury, not just to proximately cause it. The instruction was wrong because it allowed the jury to find against [the defendant] if the officer’s injury was a ‘direct, natural and probable consequence’ of [the defendant’s] action, even if [the defendant] did not personally inflict the injury.” (Id. at pp. 347–348.) Citing Cole, supra, 31 Cal.3d 568, the court held, “To ‘personally inflict’ injury, the actor must do more than take some direct action which proximately causes injury. The defendant must directly, personally, himself inflict the injury.” (Rodriguez, at p. 349; see also People v. Jackson (2000) 77 Cal.App.4th 574, 575–576, 580 [§ 273.5, subd. (a), which requires proof that defendant “ ‘willfully inflict[ed]’ ” corporal injury, requires more than proximate causation].)
At trial, DeDios argued he was not guilty of the charged offenses because the cut on J.I.’s hand was accidental. DeDios argues Rodriguez controls this case because “the jury was required to make a critically subtle causation determination: was [J.I.] injured when she lunged and grabbed the knife, or was she injured on the theory that Mr. DeDios pulled the knife from her hand after she gained possession?... [¶]... On [the former] theory, Mr. DeDios’s conduct did not constitute ‘personal infliction’ because he did not ‘directly, personally, himself, inflict the injury[]’ ” as required by Rodriguez, supra, 69 Cal.App.4th at p. 349.
DeDios essentially seeks to read a requirement of willfulness or of intentional volitional conduct into section 12022.7(e) that neither the statute nor the cases require. The Legislature uses the term “willfully” when it wants to require intentionality, as it did for example in defining the crime of corporal injury to a spouse resulting in a traumatic condition (count 1 of the information against DeDios). The Legislature did not use “willfully” in section 12022.7(e). Indeed, in Rodriguez an uncontested part of the trial court instruction on section 1192.7, subdivision (c)(8) explained, “To prove personal infliction, the People need not prove that the defendant intended to cause the great bodily injury, but only that the great bodily injury was personally inflicted as a result of the defendant’s conduct.” (Rodriguez, supra, 69 Cal.App.4th at p. 346.) While it is clear that the defendant must be the actor who directly, and not just proximately, causes the injury, there is no further requirement that the defendant intend the consequences or act with the purpose to achieve that result.
As DeDios concedes, he “placed himself at the scene of the crime with knife in hand.” (Italics added.) Regardless of whether J.I. was cut when she grabbed the knife during DeDeios’s assault or when DeDios pulled the knife away from her, the knife was in DeDios’s hand and the injury occurred as a direct and immediate consequence of his actions. DeDios therefore “personally” inflicted the injury—i.e., by “directly perform[ing] the act that cause[d] the physical injury to the victim” (Cole, supra, 31 Cal.3d at p. 579) or “act[ing] personally and directly” to cause injury (Rodriguez, supra, 69 Cal.App.4th at p. 349).
The jury was instructed that it was required to find beyond a reasonable doubt that the defendant inflicted the serious injury which J.I. suffered. The jury here reached an early consensus on count 2, which required the jury to determine (as to the enhancement) whether DeDios “inflict[ed]” great bodily injury on J.I. Its inability to reach consensus on count 1, which required it to determine whether he “willfully inflicted” an injury, strongly suggests that the jury may have been divided on the issue of DeDios’s intent, but not on the issue of his personal and direct involvement in the injury-causing event. Although DeDios correctly notes that the instruction erroneously omitted the word “personally” from its description of the allegation, he makes no showing that the omission changed the meaning of “inflicts” with respect to the requirement of any affirmative (as distinct from direct but passive) action by him.
As the People note, both the charging information and the verdict form returned by jury included the language that DeDios “personally inflicted great bodily injury upon [J.I] under circumstances involving domestic violence.” (Italics added.) In his final argument, defense counsel also emphasized the requirement DeDios have personally inflicted the injury, and contended that DeDios could not be found beyond a reasonable doubt to have personally inflicted the injury because if the victim was injured grabbing the knife, “he wasn’t the one who personally did it. Again the word personally. There is what you have to focus on that’s why it’s in the instruction.” The jury was also instructed on “Accident” (CALCRIM No. 3404), and defense counsel argued that DeDios could not be found guilty if he “acted accidentally.”
Because the central factual dispute the jury was asked to resolve with respect to the section 12022.7(e) enhancement was whether DeDios himself directly “inflict[ed]” the injury, not whether he was “personally” involved in the injury-causing event, the omission of “personally” from the instruction on the enhancement was harmless error. That is, there was no reasonable probability that, absent the error, DeDios would have received a more favorable result at trial. (People v. Watson (1956) 46 Cal.2d 818, 836.)
For the first time in his reply brief, DeDios argues that the jury instructions as a whole were likely to mislead the jury on the section 12022.7(e) enhancement’s causation requirement because, in addition to omitting “personally” from the enhancement instruction, the court instructed the jury on proximate causation (CALCRIM No. 240) without tying the proximate causation instruction to any specific charge against DeDios and without telling the jury that the instruction did not apply to the section 12022.7(e) allegation. DeDios notes that a similar error occurred in Rodriguez. The argument is forfeited because it was first raised in DeDios’s reply brief. (REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500.) In any event, this case is distinguishable from Rodriguez. In Rodriguez, the jury was instructed that “a person personally inflicts injury to another when he directly performs [an] act or acts that cause the physical injury[, ]” and shortly thereafter was instructed on proximate causation. (Rodriguez, supra, 69 Cal.App.4th at pp. 346–347, italics added.) Here, the instruction on the section 12022.7(e) enhancement did not use the term “cause” and the proximate causation instruction did not directly follow on the enhancement instruction, but preceded all instructions on the charged crimes. DeDios has not explained why the jury might conclude that the separate proximate causation instruction applied to the section 12022.7(e) enhancement. We note that when the court provided a mid-deliberation supplemental instruction on proximate causation, the jury had already reached a verdict on count 2.
B. Admission of Prior Conviction
DeDios argues the trial court erred by admitting evidence of his 1991 stabbing conviction. The People argue the conviction was admissible both to impeach DeDios once he testified at trial and to prove elements of the criminal threats charge, and that the probative value of the evidence was not substantially outweighed by undue prejudice. We conclude the court did not abuse its discretion in admitting the evidence.
1. Factual Background
The prosecutor moved in limine to admit evidence of the prior conviction for two purposes: to impeach DeDios’s credibility if DeDios testified at trial, and to prove the reasonable fear element of the charge of making criminal threats (count 3).
On use of the conviction for impeachment, DeDios argued the evidence should be excluded under Evidence Code section 352 because it was remote in time. In the alternative, he argued the evidence should be sanitized to omit mention of a stabbing or a knife. On remoteness, the prosecutor said the relevant consideration was whether DeDios had led a law-abiding life since 1991 and informed the court that DeDios had been arrested a few times since 1991 and on one occasion had fired a gun behind the family home while J.I. and at least one of the children were inside. The court admitted the evidence for impeachment purposes and deferred ruling on DeDios’s request that the evidence be sanitized. The sanitization issue became moot when the evidence was admitted for purposes of proving fear with respect to the criminal threats charge.
On the latter issue, the court held an Evidence Code section 402 hearing. At this hearing, J.I. testified that when she tried to help DeDios legalize his immigration status after they were married, she learned that DeDios had a criminal record. DeDios then told her that he had served two years in prison for stabbing someone with a knife. “Supposedly, it was somebody from across the street [who] came and started something, and I guess the guy stabbed him and he stabbed him back” in the leg or side. J.I. testified that, after she learned about the incident, she did not trust DeDios. But when she was asked during direct examination if she was “somewhat scared of him, ” she responded, “Not much.” She was “a little bit” afraid when DeDios threatened to kill her on September 20, 2008, and she took the threat seriously when he came toward her with a knife. She then agreed that knowing about the prior stabbing incident was one of the reasons she was afraid and took the threat seriously. On cross-examination, J.I. said the prior stabbing incident did not come into her mind on September 20. On redirect, she said it did come to her mind and was part of the reason she was afraid during the incident. On recross, she testified that she took DeDios’s threat seriously on September 20 because “he was telling me for a little while that he was... going to do something to me. He ha[d] told me a couple times that... if I leave him or something, he was going to kill me.” She also said that she thought about the prior stabbing incident when she saw the knife on September 20.
The trial court credited J.I.’s testimony that her knowledge of the prior stabbing incident contributed to her fear of DeDios when he threatened her on September 20, 2008. The court said, “[H]e used a knife to stab someone, and when she saw him with a knife and threatening her she was scared.” The court admitted the evidence to prove the fear element of count 3 and told defense counsel it would entertain a motion to limit J.I.’s testimony on the incident before she took the stand. Defense counsel never made such a motion.
At trial, after testifying that she felt afraid when DeDios entered the house and threatened to kill her, J.I. testified that she knew DeDios had spent two years in custody for stabbing someone with a knife. When asked if her knowledge of this incident was one reason she was scared on September 20, 2008, she responded, “when I saw the knife, it came to my mind, yes.” DeDios testified that he acted in self-defense during the 1991 incident because the other person wanted to kill him. He was cut on his hand during the incident, which resulted in scarring, and the other person did not die as a result of the stabbing. DeDios said he pled guilty even though he was wrongly accused because “everything went against” him—e.g., the police had witnesses even though no one had witnessed the incident—and his attorney worked out a plea bargain that required him to serve only two years.
In closing argument, defense counsel urged the jury not to speculate about what occurred in 1991 and reminded them that DeDios testified he acted in self-defense. Defense counsel also emphasized that the incident occurred 17 years before the charged offense. Finally, he said the evidence “goes towards his credibility not towards propensity to do this again. [¶] And I tried to explain that at the beginning and you all agreed that you wouldn’t let this cloud your judgment with regards to propensity. You wouldn’t allow yourselves to say, you know, well, he got in this knife fight back in 1991 so he probably stabbed her. You can’t do that. You can only use it to determine his credibility and what happened.” In rebuttal, the prosecutor argued, “He’s been through this process before. He has dealt with a stabbing case before. And he’s here saying, ‘Well, no, that was wrong. I was falsely accused there. That was self defense. I mean, yeah, I went to prison for two years.’ You went to prison for two years for something that is self-defense? He did it then and he did it now. That is what’s reasonable. It wasn’t self-defense. And it’s not an accident in this case.”
2. Analysis
We review a trial court’s evidentiary rulings for abuse of discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9–10.) All relevant evidence is admissible unless otherwise provided by statute. (Evid. Code, § 351.) “ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) “This definition of relevant evidence is manifestly broad. Evidence is relevant when no matter how weak it is it tends to prove a disputed issue. [Citation.]” (In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843.) However, “[t]he court in its discretion may exclude [relevant] 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.” (Evid. Code, § 352.)
Generally, evidence of a person’s bad acts is inadmissible to prove a person’s propensity to commit similar acts on a separate occasion. (Evid. Code, § 1101, subd. (a).) The rule, however, does not affect the admissibility of evidence to prove some other relevant fact or to attack a witness’s credibility. (Evid. Code, § 1101, subds. (b), (c).) Evidence that a witness has been convicted of a felony is admissible to attack the witness’s credibility (Evid. Code, § 788), but the court retains discretion under Evidence Code section 352 to exclude such evidence as substantially more prejudicial than probative. (People v. Castro (1985) 38 Cal.3d 301, 306–307.)
Here, the court acted well within its discretion in admitting evidence of the 1991 stabbing incident as relevant to the fear element of the criminal threat charge. Three elements of the crime are that the defendant act “with the specific intent that the statement... is to be taken as a threat”; that the threat, “on its face and under the circumstances in which it is made, [be] so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat”; and that the threat causes the threatened person “reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety.” (§ 422.) DeDios’s and J.I.’s mutual knowledge that DeDios had previously stabbed someone under circumstances that caused him to be convicted of a crime and sentenced to two years in prison was a “circumstance” that was relevant to the jury’s determination of the seriousness of the threat. It also tended to show that DeDios specifically intended his threat to be taken seriously. Finally, J.I.’s knowledge of the incident was relevant to prove the threat reasonably caused her to be in sustained fear for the safety of herself or her children or both. People v. Garrett (1994) 30 Cal.App.4th 962, is on point. “[T]he fact that Wife knew that appellant had killed a man with a gun in the past and that appellant was aware that she knew, inasmuch as he was the one to apprise Wife of this fact, is extremely relevant and probative in terms of establishing these elements—i.e., that appellant had the specific intent that his statement that he would ‘put a bullet in [Wife’s] head, ’ would be taken as a threat; that upon hearing the statement, Wife was in a state of sustained fear; and that the nature of the statement was such as to convey an immediate prospect of execution of the threat and to render Wife’s fear reasonable.” (Id. at p. 967.)
In its entirety, section 422 provides: “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”
DeDios does not seriously dispute that the evidence was relevant to the charged offense. Instead, he argues that the marginal relevance of the evidence was substantially outweighed by the danger of undue prejudice (i.e., that the evidence would be used by the jury as propensity evidence) and the evidence should have been excluded under Evidence Code section 352. He argues the evidence was only marginally relevant for three reasons. First, even without evidence that J.I. knew about the prior stabbing, the circumstances on September 20, 2008, as described by J.I., clearly indicated a serious threat of harm: DeDios was drunk and angry, he carried an open knife, and he threatened to kill her. Second, J.I. testified only equivocally about whether her knowledge of the prior stabbing contributed to her evaluation of the seriousness of the threat and to her fear in the 2008 incident. Third, the prior stabbing incident would not cause J.I. to fear DeDios because the incident was remote in time and because DeDios had acted in self-defense. The court observed J.I. testify at the Evidence Code section 402 hearing and heard all of the evidence presented at trial, including J.I.’s and DeDios’s testimony about the 1991 and 2008 incidents. We do not second-guess the court’s judgment on the credibility issues in the Evidence Code section 402 hearing, and the trial judge was in the best position to assess the relative weight of such evidence in the context of the trial. On the seriousness of the 1991 offense, the fact of DeDios’s conviction and prison sentence undermined his claim of innocent self-defense. We thus conclude the court did not abuse its discretion in admitting the evidence under Evidence Code section 352. (See People v. Garrett, supra, 30 Cal.App.4th at pp. 967–968 [no abuse of discretion under Evid. Code, §§ 352, 1101, subd. (a)].)
In arguing prejudice, DeDios contends the prosecutor encouraged the jury to use the prior conviction as propensity evidence when he said in his rebuttal closing argument, “He did it then and he did it now.” DeDios does not raise a separate claim of prosecutorial misconduct based on this statement, likely because the claim was forfeited by his trial attorney’s failure to object to the argument. (See People v. Proctor (1992) 4 Cal.4th 499, 543–544.) We note that the trial court did not provide a limiting instruction advising the jury not to use the prior conviction evidence as propensity evidence. However, DeDios did not request such an instruction and he does not claim error on appeal due to the absence of such an instruction. As noted ante, defense counsel explained to the jury at some length and without objection that the jury was not permitted to use the evidence as propensity evidence. His argument also strongly suggests that this issue was discussed in detail during voir dire. There are also indications that the jury heeded defense counsel’s warnings. If accepted as propensity evidence, the prior stabbing incident would have indicated to the jury that DeDios was more likely to have deliberately stabbed J.I. on September 20, 2008. However, the jury was unable to reach a unanimous verdict on the one count that required proof of a deliberate or willful stabbing: count 1, corporal injury on a spouse resulting in a traumatic injury.
DeDios separately argues it was error for the trial court to admit the conviction as impeachment evidence without sanitizing it to eliminate references to a stabbing and thus to avoid the prejudice that the jury might use it as propensity evidence. However, because we conclude that the specific evidence that the incident involved a knife and a stabbing was properly admitted to prove elements of the criminal threats charge, this argument is moot.
We conclude the trial court did not abuse its discretion by admitting evidence that DeDios had stabbed someone in 1991, resulting in a criminal conviction and a two-year prison sentence.
C. Reasonable Doubt Instruction
1. Factual Background
The trial court’s predeliberation instructions to the jury included the standard CALCRIM instruction on reasonable doubt (CALCRIM No. 220), which provides in relevant part: “[P]roof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt you must impartially compare and consider all the evidence that was received throughout the entire trial....”
After the jury informed the court that it was deadlocked on counts 1 and 3, the court asked the foreperson if further deliberations would be productive and told the jury: “What I kind of would like to do is ask you to recess tonight and give us a little more time tomorrow and try a little longer to kind of take fresh looks. I’ll give you some ideas about that, but I’d like you to do that.... [¶]... [¶]... And ask as a group of yourselves, [sic] is there anything the Court can do to help? Is there some area we’re confused on? And then one of the ideas that I’ve shared with jurors from time to time is maybe it’s good for each juror to say let me just take say Count 1.... My position on Count 1 is such that I think my best judgment is this. I think that the best argument for the other side... is this and can we compare those and then that gets the discussion going and that’s one method that I’ve heard of jurors using that tends to work. All in favor of one side and all in favor of the other. Then your balance is you got two things to compare to each other. [¶] Now, I’m going to ask each of you to compare the pluses and minuses, again, using this standard. This is a reasonable doubt standard, but the comparison of two sides is what it’s all about. So if we could try tomorrow, folks, I really would appreciate your time and I’m sure that both sides would.” The jury returned a guilty verdict on count 3 the following morning. DeDios characterizes the court’s comments as a “supplemental instruction” that relieved the prosecution from its burden to prove guilt beyond a reasonable doubt, requiring per se reversal of his conviction for making criminal threats (count 3). We find no error.
Defense counsel made no objection to the court’s comments. The People do not argue that DeDios thereby forefeited this issue. (See People v. Stone (2008) 160 Cal.App.4th 323, 331 [waiver of claim of instructional error on reasonable doubt by failure to object].) Nevertheless, even in the absence of an objection an accused has a right to appellate review of any instruction that affects his or her substantial rights, and we have discretion to consider the argument in any event. (People v. Johnson (2004) 119 Cal.App.4th 976, 984–985.)
2. Analysis
A trial court has a sua sponte duty to instruct that a defendant is presumed to be innocent and that the prosecution has the burden of proving the defendant’s guilty beyond a reasonable doubt. (People v. Vann (1974) 12 Cal.3d 220, 225–226.) “The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. [Citation.] Indeed, so long as the court instructs the jury on the necessity that the defendant’s guilt be proven beyond a reasonable doubt, [citation], the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof. [Citation.] Rather, ‘taken as a whole, the instruction [must] correctly conve[y] the concept of reasonable doubt to the jury.’ [Citation.]” (Victor v. Nebraska (1994) 511 U.S. 1, 5.) We review a claim that a court failed to properly instruct on applicable principles of law de novo. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)
CALCRIM No. 220 is based on a statutory definition of reasonable doubt that the Legislature and the courts have determined is a correct and adequate instruction on the concept. (§§ 1096, 1096a; People v. Zepeda (2008) 167 Cal.App.4th 25, 28–32; People v. Ramos (2008) 163 Cal.App.4th 1082, 1088–1089; People v. Stone, supra, 160 Cal.App.4th at pp. 330–334.) The Supreme Court has warned trial courts against modifying the standard instructions on reasonable doubt. (People v. Freeman (1994) 8 Cal.4th 450, 504–505; see also People v. Bryant (2011) 191 Cal.App.4th 1457, 1471; People v. Garcia (1975) 54 Cal.App.3d 61, 64–66 (Garcia).) Cautionary tales on the perils of “tinkering” with the reasonable doubt instruction abound in our reported appellate cases. (See e.g. People v. Katzenberger (2009) 178 Cal.App.4th 1260; People v. Johnson, supra, 119 Cal.App.4th 976; People v. Johnson (2004) 115 Cal.App.4th 1169.)
In Garcia, Division One of this court held that a trial court committed prejudicial error when it supplemented the standard reasonable doubt instruction, explaining that reasonable doubt meant no more than the doubt that remained after “ ‘weighing the evidence in the scales, one side against the other, in a logical manner in an effort to determine wherein lies the truth.’ ” (Garcia, supra, 54 Cal.App.3d at pp. 68, 70–71.) “This final explanatory instruction is strikingly comparable to the civil case rule of ‘ “preponderance of evidence” [by which] is meant such evidence as, when weighed with that opposed to it, has more convincing force, and from which it results that the greater probability’ (italics added) of truth lies therein. (People v. Miller [(1916)] 171 Cal. 649, 653; [citations].) It calls upon the jury to weigh ‘the evidence in the scales... in an effort to determine wherein lies the truth, ’ and thus the guilt or innocence of the accused. This ‘weighing’ process, where a tipping of the scales determines the ‘truth, ’ is wholly foreign to the concept of proof beyond a reasonable doubt. [¶] The distinction was made clear by California’s Supreme Court. ‘[I]n civil cases a party may have established an essential fact by a preponderance of the evidence, although, in the light of all the evidence pro and con, the jury may not be satisfied to a moral certainty of the existence of the fact, and the whole evidence may not be such as to produce conviction in their minds.’ (People v. Miller, supra, 171 Cal. [at p.] 654.)” (Garcia, at p. 69, italics omitted.)
“[T]he proper inquiry is not whether an instruction ‘could have’ been applied in an unconstitutional manner, but whether there is a reasonable likelihood that the jury did so apply it. [Citation.]” (Victor v. Nebraska, supra, 511 U.S. at p. 6, first italics added.) There is a significant difference between the Garcia instruction and the advice given to the jury in this case. In Garcia, the trial court expressly attempted to elaborate upon the reasonable doubt instruction and in that context told the jury to weigh and balance the evidence on both sides, evoking a preponderance of the evidence standard. (Garcia, supra, 54 Cal.App.3d at p. 68.) Here, the court was making no attempt to further define reasonable doubt, but was merely asking the jury to deliberate further, providing the jurors with some guidance in doing so and directly reminding them that “[t]his is a reasonable doubt standard.” That guidance was to consider the arguments of the other jurors for their positions—comparing the best argument for the opposing side against their own best judgment on the issue. This statement does nothing more that reiterate the duty of the jurors to deliberate, considering the views of other jurors and mirrors a judicially-approved instruction to a deadlocked jury. (See People v. Moore (2002) 96 Cal.App.4th 1105, 1118–1121.) The court’s comments to the jury did not even mention evidence and specifically reminded the jury that the standard of proof was beyond a reasonable doubt. When viewed in its totality the “instruction” simply encouraged the jury to continue deliberations in an effort to arrive at a unanimous verdict if possible.
The trial court in Moore told the jury in part, “May I suggest that since you have not been able to arrive at a verdict using the methods that you have chosen, that you consider to change the methods you have been following, at least temporarily and try new methods. [¶] For example, you may wish to consider having different jurors lead the discussions for a period of time, or you may wish to experiment with reverse role playing by having those on one side of an issue present and argue the other side’s position and vice versa. This might enable you to better understand the other’s positions.” (Moore, supra, 96 Cal.App.4th at p. 1119, italics added.) The court clarified that this suggestion was a way “to ensure each juror has a full and fair opportunity to express his or her views and consider and understand the views of the other jurors.” (Ibid.) The court did not suggest that application of the reasonable doubt standard of proof was comparable to a weighing or balancing of two sides of the trial evidence.
Contrary to DeDios’s assertion, we do not see that that the jury could interpret the court’s comments and the instructions as a whole to mean that the evidence must only preponderate in favor of the prosecution in order to warrant a guilty verdict. The jury was instructed, both orally and in writing, on the presumption of innocence and told that “[t]he fact that a criminal charge has been filed against the defendant is not evidence that the charge is true” and that “[a] defendant in a criminal case is presumed to be innocent[, which]... requires that the People prove a defendant guilty beyond a reasonable doubt.” Further, the instructions told the jury that “[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” The jury was provided with a copy of the written instructions. To the extent that any oral instructions conflict with the written, the written instructions provided to the jury will control. (People v. Mills (2010) 48 Cal.4th 158, 200–201.)
There was no error.
III. Disposition
The judgment is affirmed.
We concur: Jones, P. J., Needham, J.