Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF061371, Randall Donald White, Judge. Affirmed.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald Jakob, Jennifer A. Jadovitz and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
MILLER, J.
A jury convicted defendant Rodolfo Gonzalez of three counts of assault likely to produce great bodily injury or with a deadly weapon, a van, against, respectively, three separate victims (counts 1-3-Pen. Code § 245, subd. (a)(1)). The trial court sentenced defendant to the midterm of three years on count 1 and concurrent, three-year terms on counts 2 and 3.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant makes six contentions: (1) the trial court erred in not giving a sua sponte unanimity instruction; (2) defendant was deprived of his due process right to a fair trial by the court’s admission of evidence that he was an unlicensed driver; (3) the definition of reasonable doubt found in CALCRIM Nos. 103 and 220 unconstitutionally lowered the People’s burden of proof; (4) the court’s instruction of the jury with CALCRIM No. 226 violated defendant’s constitutional rights by permitting the jurors to consider matters outside the record; (5) defendant was deprived of his constitutional right to confrontation when the trial court refused to admit evidence ostensibly bearing on a testifying victim’s bias against him; and (6) the result of the aforementioned alleged errors resulted in prejudicial cumulative error. We affirm the judgment in full.
FACTUAL AND PROCEDURAL HISTORY
On February 11, 2008, at around 5:30 p.m., the victim was driving home from the store in a golf cart with his wife and two-year-old daughter. As the victim was waiting to make a left turn, defendant drove up quickly behind him in a van. Defendant repeatedly revved the van’s engine, lurching it forward in an apparent attempt to ram the golf cart from behind. Defendant’s brother leaned out the window of the van and began cursing loudly at the victim while banging on the windshield. The victim made the left turn as soon as traffic sufficiently cleared.
The victim testified that he recognized both defendant and defendant’s brother, a passenger in the van, because they both lived down the street from him. Defendant testified that he did not know the victim until after the instant incident.
As the victim proceeded on the road, two or three cars pulled in behind him. He looked in his rearview mirror; he saw defendant’s van coming up quickly on the right shoulder of the road, passing the other cars. Eventually, the van pulled parallel to the victim’s cart. The victim moved the cart to the left because he feared defendant was going to collide with him. The van followed, colliding with the middle-back portion of the cart.
The victim lost control of the cart and collided with a fence. The collision damaged both the fence and the golf cart. The victim picked up a soda can and threw it at defendant’s van, hitting defendant’s driver’s side door. Defendant pulled the van away, which gave the victim sufficient space so that he could extricate the cart from the fence and drive away. The victim turned a corner, but defendant caught up with him and hit the back-right side of the cart again. The cart was forced into two gates.
Defendant put the van into reverse and then rammed directly into the cart. The victim was struck in the head by the windshield as it cracked from the impact of the collision, causing his forehead to bleed. Defendant pulled the van back one more time and rammed the golf cart again. The victim’s wife exited the cart with their daughter and gave the latter to a woman standing in the front yard of the adjacent residence. The victim also exited the cart.
Defendant exited the van and angrily approached the victim. Defendant’s hands were clenched into raised fists. Defendant’s brother also approached the victim. When defendant was directly in front of the victim, the victim punched defendant twice in the face. Defendant’s brother swung a sharp metal file at the victim scratching the victim’s neck and drawing some blood. The victim’s wife intervened, pushing defendant and his brother away from the victim. Someone exclaimed that the police were on their way. Defendant drove off in the van. The police arrived thereafter. The golf cart sustained damage to its inside panel, under chassis, right side panel, right rear tire, and axle.
A deputy sheriff testified that he interviewed defendant on the day of the incident. Defendant said that “[h]e regretted doing what he did to the [victims.]” Defendant admitted ramming the golf cart three times; he never denied hitting it.
Defendant testified that while driving home from the store, the victim cut him off. Defendant and his brother got out of the van to ask the victim why he had cut them off. The victim and his wife started screaming aggressively at them. The victim’s wife got out of the cart, grabbed his brother’s shirt, tore it, and scratched his neck. Defendant got back in his vehicle and went home. He denied ever ramming the golf cart with his vehicle. Defendant testified that he did admit to the officer that he hit the golf cart, but he only did so because he was nervous.
DISCUSSION
A. UNANIMITY INSTRUCTION
Defendant contends that because he was charged with only three assaults, but the evidence potentially established four assaults, the court committed prejudicial error in failing to give CALCRIM No. 3500, the unanimity instruction, sua sponte. We disagree.
CALCRIM No. 3500 reads as follows: “The defendant is charged with ___ [in Count ___] [sometime during the period of ___ to ___]. [¶] The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed.”
A criminal defendant is entitled to a verdict in which all 12 jurors concur as a matter of due process under the state and federal Constitutions. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) In any case in which the evidence would permit jurors to find the defendant guilty of a crime based on two or more discrete acts, either the prosecutor must elect among the alternatives or the court must require the jury to agree on the same criminal act. (Id. at pp. 1132-1133.) Where it is warranted, the court must give the instruction sua sponte. (People v. Riel (2000) 22 Cal.4th 1153, 1199.) The omission of a unanimity instruction is reversible error if, without it, some jurors may have believed the defendant guilty based on one act, while others may have believed him guilty based on another. (Russo, at p. 1133.)
However, “[t]he unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction. [Citations.] The ‘continuous conduct’ rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. [Citation.]” (People v. Stankewitz (1990) 51 Cal.3d 72, 100.) “The ‘continuous course of conduct’ exception-when the acts are so closely connected that they form one transaction-is meant to apply not to all crimes occurring during a single transaction but only to those ‘where the acts testified to are so closely related in time and place that the jurors reasonably must either accept or reject the victim’s testimony in toto.’ [Citation.]” (People v. Melendez (1990) 224 Cal.App.3d 1420, 1429, disapproved of by People v. Majors (1998) 18 Cal.4th 385, 408, to the extent it would require jurors in a murder case to unanimously agree on a theory of murder.)
We conclude that the events that transpired on the day at issue constituted one continuous course of conduct from which there was little basis for the jury to distinguish between each act of ramming the golf cart. Here, the evidence established that defendant rammed the victim’s golf cart between three and four times within a relatively short period of time and in a comparatively close geographical area. Thus, the acts alleged were so closely connected in both time and place that no unanimity instruction was required.
Indeed, as discussed in the People’s closing argument, the evidence adduced at trial arguably established 12 separate acts of assault with a deadly weapon or likely to produce great bodily injury. Each individual act of ramming the golf cart constituted three separate assaults because there were three victims, the three occupants of the cart. Likewise, as argued by the People, no actual ramming of the vehicle was required to support the convictions. Assault is an attempted battery, which does not require actual or even indirect contact. (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) Thus, to the extent the jury determined that defendant did not ram the golf cart at all, it still could have convicted him on all three counts for attempting to ram the cart.
The victim testified that traveling at 15 miles an hour, it only took about five minutes to reach the store from his home. It is reasonably inferable therefore that the reverse trip took approximately the same amount of time.
Assuming arguendo that a unanimity instruction would have been appropriate under the circumstances, we conclude that no prejudice resulted from the court’s failure to so instruct. The question then becomes whether the court’s failure to give the instruction requires reversal. Failure to give a unanimity instruction where it is warranted has the effect of lowering the prosecution’s burden of proof, in that the prosecution may obtain a conviction without having convinced all 12 jurors beyond a reasonable doubt that the defendant committed a particular criminal act. Therefore, such an error is reviewed under the standard enunciated in Chapman v. California (1967) 386 U.S. 18. (People v. Smith (2005) 132 Cal.App.4th 1537, 1545-1546; People v. Wolfe (2003) 114 Cal.App.4th 177, 186-188.) Under that standard, we must examine the evidence and inquire whether it is possible to determine, beyond a reasonable doubt, that the jury unanimously relied on the same specific acts in finding defendant guilty on all counts. (Smith, at pp. 1546-1547; Wolfe, at p. 188.)
Though, to the extent a unanimity instruction would have been required, we conclude that CALCRIM No. 3501 would have been more appropriate. CALCRIM No. 3501 reads: “The defendant is charged with [in Count[s] ___] sometime during the period of ___ to ___. [¶] The People have presented evidence of more than one act to prove that the defendant committed (this/these) offense[s]. You must not find the defendant guilty unless: [¶] 1. You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed [for each offense]; [¶] OR [¶] 2. You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period [and have proved that the defendant committed at least the number of offenses charged]. (Italics added.)
Cases generally hold the omission of a unanimity instruction harmless if the record reveals “no rational basis, by way of argument or evidence, by which the jury could have distinguished between [the acts which would constitute the offenses].” (People v. Deletto (1983) 147 Cal.App.3d 458, 473.) In contrast, if there is a rational basis on which jurors could distinguish between alternative factual bases, omission of a unanimity instruction is normally reversible error. For example, in People v. Diedrich (1982) 31 Cal.3d 263, the defendant was charged in count 1 with bribery. The evidence showed two instances of bribery, and the defendant had different defenses as to each. For that reason, and because the court did not find the evidence of either instance of bribery overwhelming, the Supreme Court felt compelled to reverse the conviction because the trial court had failed to give a unanimity instruction. (Id. at pp. 282-283; see also People v. Thompson (1995) 36 Cal.App.4th 843, 853.)
In some instances, however, even if there is a rational basis upon which jurors could distinguish the alternative factual bases, the court can determine, for some other reason, that the error was harmless beyond a reasonable doubt. In People v. Wolfe, supra, 114 Cal.App.4th 177, for example, this court found the omission of a unanimity instruction harmless even though there was a rational basis on which jurors could have distinguished between two alternate factual bases for the charged offense. The defendant was charged with one count of illegal possession of firearms. There was evidence that he may have possessed some firearms on one day, and that he may have possessed other firearms on another day. Omission of a unanimity instruction was deemed harmless, however, because even though jurors could have had a reasonable doubt as to whether the defendant possessed the guns found on the first day, none could reasonably have disbelieved the defendant’s admission that he possessed at least some of the guns found on the latter date. (Id. at pp. 187-188.)
Here, while the evidence established at least three separate instances of assault, defendant’s defense to all the charges was the same; that he never rammed or attempted to ram the victim’s golf cart. Moreover, the evidence supporting all the convictions was overwhelming. The victim and his wife both testified consistently with one another. Their testimony regarding the course of events was internally and externally logical and plausible, i.e., it demonstrated a reasonable motive for defendant’s acts; that defendant was enraged by the victim’s speed which apparently impeded defendant’s ability to progress as he desired. Defendant’s testimony that the victim cut him off in a golf cart, stopped in front of him, and then aggressively yelled at him all while in the presence of the victim’s two-year-old daughter simply strains credulity and was obviously disbelieved by the jury. Indeed, the jury took less than an hour’s deliberation to convict defendant as charged. Finally, while the jurors could have had a reasonable doubt about at least one of the alleged collisions, no one could reasonably have disbelieved defendant’s admission that he rammed the golf cart three times; certainly the jurors could not have believed defendant’s testimony that he never rammed the golf cart. Indeed, one ramming or one attempted ramming was all the People were required to prove in order to obtain convictions on all three counts. Thus, the omission of the instruction was harmless.
The victim testified that the maximum speed for his golf cart was 20 to 25 miles an hour; however, he testified that he was driving only 15 miles an hour during the course of events. The victim testified that defendant was regularly traveling 30 to 40 miles an hour. Moreover, because the victim’s golf cart was in front of defendant’s van prior to making the initial left turn, the victim was apparently blocking defendant’s ability to make that turn. It is reasonable to infer from the evidence that because the victim’s golf cart traveled so slowly, he had to wait a longer time for traffic to clear to make the left turn than would someone in a regular, street-legal vehicle. Indeed, both the victim and his wife testified they had to wait in order to make the turn. The victim’s wife testified that the occupants of the van became irate while waiting for the victim to make the turn; defendant honked his horn at them. Furthermore, abundant evidence was adduced that defendant was intoxicated at least to some degree during the incident, implicating a lesser degree of patience on his part. Indeed, defendant admitted on the stand that he had imbibed “[a]bout six beers” out of a 12-pack he purchased that day. Thus, defendant’s motive for initiating the hostilities appears to have been road rage.
Defendant testified that the victim’s “intention was to provoke me, to cause a collision, to have a problem.”
B. ADMISSION OF EVIDENCE REGARDING DEFENDANT’S LACK OF A DRIVER’S LICENSE
Defendant contends the court’s admission of evidence, over his objection, that defendant was an unlicensed driver deprived him of his due process right to a fair trial. Specifically, defendant avers that the evidence was not relevant to prove identity, motive, plan, or intent such that the court abused its discretion in permitting it. Moreover, he asserts the error was prejudicial. The People respond that while “[a]rguably the challenged evidence was [of] little relevance, ” it was, nonetheless, harmless. We agree with the People.
At oral argument the People conceded that the evidence was irrelevant.
The challenged evidence was adduced in the following colloquy on cross-examination of defendant:
“[People:] You don’t have a driver’s license; do you?
“[Defense Counsel:] Objection relevance.
“[Court:] Overruled.
“[Defendant:] No.
“[People:] Why are you driving without a license... ?
“[Defendant:] Well, I needed the transportation to be able to go to the store.
“[People:] Couldn’t your brother driver?
“[Defendant:] No. Just me.
“[People:] Why couldn’t your brother drive?
“[Defense Counsel:] Objection. Calls for speculation.
“[Court:] Overruled.”
“[Defendant:] Well, because that day I was at the wheel, and I was driving.”
“No evidence is admissible except relevant evidence.” (Evid. Code § 350.) “‘Relevant evidence’ means evidence... 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.) “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code § 352.) Evidence that a defendant committed an uncharged crime is admissible if relevant to prove the defendant’s motive in the instant case. (Evid. Code § 1101, subd. (b).)
“The trial court has broad discretion in determining the relevance of evidence. [Citation.] We review for abuse of discretion a trial court’s rulings on the admissibility of evidence. [Citations.]” (People v. Harris (2005) 37 Cal.4th 310, 337.) “The erroneous admission of [irrelevant evidence] warrants reversal of a conviction only if the appellate court concludes that it is reasonably probable the jury would have reached a different result had the [evidence] been excluded. [Citation.]” (People v. Scheid (1997) 16 Cal.4th 1, 21.)
Assuming error, we find the admission of evidence of defendant’s lack of a driver’s license harmless. Driving without a license is hardly an act likely to inflame the passions of the jury to such an extent that it would convict defendant of three felonies on otherwise insufficient evidence. Driving without a driver’s license is only an infraction. (Veh. Code, § 12500, subd. (a); Pen. Code, § 19.8.) Indeed, the evidence adduced at trial regarding defendant’s potentially intoxicated state was likely far more prejudicial. Regardless, as discussed above, overwhelming evidence supported defendant’s convictions.
C. CALCRIM NOS. 103 AND 220
Defendant contends that the court’s instruction of the jury with CALCRIM Nos. 103 and 220 deprived him of his due process right to have his guilt determined beyond a reasonable doubt by forcing the jury to analyze only the evidence adduced at trial, but barring it from considering the prosecution’s failure to produce other evidence and/or by calling attention to the defendant’s alleged failure to produce evidence. We disagree.
A trial court must correctly instruct sua sponte on all applicable fundamental principles of law, including the presumption of innocence and the prosecution’s burden of proof. (People v. Elguera (1992) 8 Cal.App.4th 1214, 1219.) On review, the question is whether the court’s instructions “‘correctly conveyed the concept of reasonable doubt to the jury’” (Victor v. Nebraska (1994) 511 U.S. 1, 22) or, if not, whether there is a reasonable likelihood that the jury applied the challenged instruction in a way that violated the Constitution. (Estelle v. McGuire (1991) 502 U.S. 62, 72-73; People v. Raley (1992) 2 Cal.4th 870, 901.)
Defendant’s argument is very similar, if not identical, to the arguments presented and rejected in several cases, including People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1092-1093; People v. Rios (2007) 151 Cal.App.4th 1154 (Rios); People v. Westbrooks (2007) 151 Cal.App.4th 1500; and People v. Stone (2008) 160 Cal.App.4th 323. In these cases, the courts all found CALCRIM No. 220 to be constitutional. In Rios, the defendant, who did not present a defense, argued that the phrase in CALCRIM No. 220 reading “‘to [impartially] compare and consider all [of] the evidence’ impermissibly shifts the burden of proof to the defense by allowing the jury to hold against the defense the absence of defense evidence.” (Rios, at p. 1156.) The court in Rios rejected this contention, explaining that CALJIC No. 2.90 “imparts essentially the same mandate to the jury” in its instruction that reasonable doubt “‘is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.’” (Rios, at p. 1157.)
The Rios court concluded that, to the extent there are grammatical differences between CALCRIM No. 220 and CALJIC No. 2.90, the defendant “fails to persuade us that those grammatical differences are material. The United States Supreme Court rejected a constitutional challenge to CALJIC No. 2.90 in part on the rationale that ‘the entire comparison and consideration of all the evidence’ language ‘explicitly told the jurors that their conclusion had to be based on the evidence in the case.’ [Citation.] The language [the defendant] challenges in CALCRIM No. 220 did just that.” (Rios, supra, 151 Cal.App.4th at p. 1157.)
In People v. Westbrooks, supra, 151 Cal.App.4th 1500, the defendant, who had presented a defense that mentioned missing prosecution evidence (id. at pp. 1504, 1506), claimed that the subject phrase in CALCRIM No. 220 prohibited the jury from considering “the lack of physical evidence implicating him in the crime.” (Westbrooks, at p. 1509.) The court in Westbrooks rejected this argument, explaining: “The sentence to which [the defendant] objects, like the remainder of CALCRIM No. 220, merely instructs the jury that it must consider only the evidence presented at trial in determining whether the People have met their burden of proof. In other words, this instruction informs the jury that the People may not meet their burden of proof based on evidence other than that offered at trial. The instruction does not tell the jury that it may not consider any perceived lack of evidence in determining whether there is a reasonable doubt as to a defendant’s guilt. Further, the remainder of the instructions clearly conveyed to the jury the notion that the People had the burden of proving [the defendant’s] guilt beyond a reasonable doubt and that the jury was required to determine whether the People had met their burden of proving all of the facts essential to establishing his guilt.” (Ibid.)
In People v. Stone, supra, 160 Cal.App.4th 323, the defendant raised the same challenge to CALCRIM No. 220 raised in the instant case. And, as in the instant case, the trial court gave the pretrial instruction on reasonable doubt, CALCRIM No. 103, as well as CALCRIM No. 220, which are essentially identical. (Stone, at p. 331.) The court in Stone rejected the CALCRIM No. 220 objection, stating, “[W]e are not persuaded by defendant’s exercise in semantics. In the first place, a jury instruction cannot be judged on the basis of one or two phrases plucked out of context: Rather, ‘“‘“‘[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction....’”’”’ [Citations.]” (Stone, at p. 331.)
The court in Stone further explained: “Here, we cannot see how a jury would place enough significance on a single word-‘compare’-such that it would interpret the instruction as a whole to mean that the evidence must only preponderate in favor of the prosecution in order to warrant a guilty verdict. The instruction simply tells the jury to ‘compare and consider all the evidence that was received throughout the entire trial.’ It does not instruct the jury to engage in any balancing of the evidence in the sense of comparing the evidence presented by one side against the evidence presented by the other side. Indeed, such an interpretation is completely inconsistent with the instructions as a whole.... [¶] The idea that the jury would interpret ‘compare’ to mean that guilt is to be determined by a balancing-of-the scales approach that compares the evidence offered by two sides is further undercut by other instructions.... In sum, reading the instructions as a whole, together with the fact that nowhere in closing arguments do counsel so much as allude to a preponderance standard, we are convinced that there is no likelihood whatsoever that the jury could have interpreted the ‘compare and contrast’ language in the instruction in the manner suggested by defendant.” (People v. Stone, supra, 160 Cal.App.4th at p. 332.) Based on this reasoning, we reject defendant’s objections to CALCRIM Nos. 103 and 220.
D. CALCRIM No. 226
Defendant contends the court erroneously, and in violation of his federal constitutional rights, instructed the jury with CALCRIM No. 226 (credibility of witnesses) which permitted the jurors to consider matters outside the record to the extent the instruction informed them to use their “common sense and experience.” We disagree.
“To tell a juror to use common sense and experience is little more than telling the juror to do what the juror cannot help but do. In approaching any issue, a juror’s background, experience and reasoning must necessarily provide the backdrop for the juror’s decisionmaking, whether instructed or not. CALCRIM No. 226 does not tell jurors to consider evidence outside of the record, but merely tells them that the prism through which witnesses’ credibility should be evaluated is common sense and experience. Unlike People v. Bickerstaff (1920) 46 Cal.App. 764, 773 [and] People v. Paulsell (1896) 115 Cal. 6, 7 [], cited by [defendant], CALCRIM No. 226 does not instruct jurors to use their common sense and experience in finding reasonable doubt, which could potentially conflict with the beyond a reasonable doubt standard, but only in assessing a witnesses’ credibility.” (People v. Campos (2007) 156 Cal.App.4th 1228, 1240.)
“Furthermore, other instructions given to jurors make clear that the term ‘common sense and experience’ is not a license to consider matters outside of the evidence. Jurors were instructed that they must decide the facts based on the evidence presented (CALCRIM No. 200), ... that their determination of guilt had to be based on evidence received at trial (CALCRIM No. 220), that they were only to consider evidence (sworn testimony and exhibits) presented in the courtroom (CALCRIM No. 222), that they had to decide whether facts have been proved based on ‘all the evidence’ (CALCRIM No. 223), that they should review all the evidence before concluding that the testimony of one witness proves a fact (CALCRIM No. 301) and other instructions emphasizing the exclusive significance of the evidence. (CALCRIM No. 302.)” (People v. Campos, supra, 156 Cal.App.4th at p. 1240.) We therefore conclude that defendant has not shown any error in giving CALCRIM No. 226.
E. CONFRONTATION
Defendant contends he was deprived of his constitutional right to confrontation when the court excluded testimony of the victim regarding an event occurring after the collisions. Defendant maintains that a subsequent dispute involving defendant’s brother and the owner of the property on which the collision with the gate occurred reflected on the victim’s bias against defendant. We agree with the People that the evidence was irrelevant and, therefore, properly excluded.
The victim testified that at the scene of the collision with the gate, defendant’s brother engaged in an argument with the woman at the adjacent residence. He told her he would “‘come back and... kill you and your family, bitch.”
Prior to trial, the People sought to exclude as irrelevant testimony regarding a physical altercation between defendant’s brother, the victim, and the homeowner whose wife had been accosted by defendant’s brother. It was averred that this confrontation took place sometime after the collision when the victim guided the homeowner to defendant’s brother’s home. The court noted, “I can see that there may be some relevancy as to bias, but it may be fairly attenuated.” Nevertheless, the court concluded that while “It looks to me like there is some relevancy as to bias, ... I need to hear more about it before I can rule on this issue.”
On cross-examination of the victim, defense counsel asked if the victim went over to defendant’s residence after the collision. The People objected on the grounds of relevance. The court then held an Evidence Code section 402 hearing out of the jury’s presence in which it heard the victim’s testimony regarding the subsequent incident.
The victim testified that the homeowner came over to the victim’s house believing that the victim was the individual who had threatened the homeowner’s wife. The victim informed the homeowner that he was not the one who had threatened the homeowner’s wife; he guided the homeowner to defendant’s brother’s home. The homeowner and defendant’s brother engaged in a fight. The victim was not involved in the fight. Defendant was not at the house during the altercation. The court tentatively announced that “it seems to me it’s rather attenuated at this point. Unless and until there is some foundation that the reason for this witness’s attendance at this fight was for purposes other than to tell [the homeowner] where this other person lived, I’m going to not allow it at this point.”
The court continued the Evidence Code section 402 hearing after the People rested their case. Defense counsel alleged that a witness had reported that the victim was also involved in the fight with defendant’s brother: “And we would want to get that out on the witness stand to show bias against my client and his brother, so that they actually chased him down and started a fight with them.” That witness testified he observed a fight in front of his home on February 11, 2008, between two people, neither of whose names he knew. Neither defense counsel nor the court pursued the matter further.
“No evidence is admissible except relevant evidence.” (Evid. Code § 350.) “‘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.) “The trial court has broad discretion in determining the relevance of evidence. [Citation.] We review for abuse of discretion a trial court’s rulings on the admissibility of evidence. [Citations.]” (People v. Harris (2005) 37 Cal.4th 310, 337.)
Defendant forfeited the issue by failing to pursue the matter. Indeed, the fact that defense counsel dropped the matter after the witness’s testimony strongly suggests that he no longer found evidence of the subsequent altercation relevant either. We would agree with that determination. The fact that the victim directed the homeowner to defendant’s brother’s home sometime after the incidents at issue in this case bore no relevance to the instant proceedings. We are at a complete loss as to how defendant believes that the latter events reflect on the victim’s alleged bias against defendant. The latter incident did not involve the defendant at all. It did not occur at defendant’s house. No evidence established that the victim was in any way involved in the physical altercation with defendant’s brother. All he did was direct the homeowner to defendant’s brother’s home. This is in no way demonstrative of a bias against defendant. Moreover, the jury already had before it sufficient evidence of the victim’s purported bias against defendant, i.e., the underlying events. Thus, to the extent the court even rendered a ruling on the matter, we discern no abuse of discretion.
F. CUMULATIVE ERROR
Defendant contends that the errors infecting the trial, even if not individually prejudicial, were cumulatively prejudicial. We have rejected four of defendant’s five claims of error outright and have found the other to be, at worst, manifestly nonprejudicial. Defendant does not adequately explain why, even if we upheld all of his contentions of error, we should conclude that they were cumulatively prejudicial. In light of our rejection of most of his contentions, his cumulative error argument unquestionably fails.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST Acting P. J., McKINSTER J.