Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Riverside County, Bernard J. Schwartz, Judge, Super. Ct. No. E039513
McDONALD, J.
Samuel Samson Guzman appeals a judgment following his jury conviction of second degree murder. On appeal, Guzman contends the trial court erred by: (1) excluding evidence of the victim's gang membership; (2) excluding evidence of the reputation of the victim's family for violence; (3) admitting evidence he (Guzman) was trained by the military to kill; (4) admitting evidence on the operation of a .38-caliber revolver; and (5) refusing his request for an instruction with CALJIC No. 5.17 on voluntary manslaughter based on imperfect self-defense. He also contends the judgment should be reversed because of cumulative prejudicial errors.
FACTUAL AND PROCEDURAL BACKGROUND
On June 24, 2003, Guzman's father, Samuel Guzman, Sr. (Sammy), visited Ralph Montecino, his brother-in-law, at his (Montecino's) house in Moreno Valley. Sergio Rico, his nephew Alberto, and a few other people were also present. After everyone had been drinking alcohol, Rico and Sammy began arguing because Rico wanted to leave but Sammy's parked car was blocking his truck's path. Their argument evolved into a physical altercation. Rico grabbed Sammy, punched him in the face, knocked him down to the ground, straddled him, and held him down. Montecino broke up the fight and told everyone to go home. Sammy said, "This ain't over yet." Both Sammy and Rico left. Rico lived around the corner from Montecino's house.
Sammy drove to his home in Perris, which is about 10 miles away. When Guzman, who lived in a separate house on Sammy's property, returned home from work, Sammy told him about his fight with Rico. Guzman and Sammy got in Guzman's car and drove to Moreno Valley. They first drove by Montecino's house, but did not observe anyone outside. They then drove by Rico's house and saw Rico and others outside drinking alcohol and smoking marijuana. Guzman parked his car on the street, got out, and began walking up the driveway toward Rico. When Guzman was six feet away from Rico, he (Guzman) pulled out a revolver from his front pocket and fired six shots at Rico. Rico grabbed his stomach and fell to the ground. Guzman then returned to his car and drove away. As Guzman was driving away, he slowed down, looked back, laughed, and then sped up.
At trial, prosecution witnesses testified Rico was unarmed (i.e., did not have a knife) and did not attack Guzman. Guzman and Sammy testified Rico was armed with a knife and swung it at Guzman.
At about 7:40 p.m., police arrived at Rico's home. Rico was lying on the ground dead. A cigarette lighter was a couple of inches away and an opened, rusty folding knife was about eight inches away from his extended right hand.
A rusty kitchen knife was also found on a trash can near Rico's body.
An autopsy showed Rico had sustained six gunshot wounds. Three shots entered his abdomen, one shot entered the left side of his chest, and two shots entered his left upper back. Only the two shots entering Rico's back showed stippling, evidence the gun was within 18 to 24 inches of his body when fired. One of those two shots (i.e., shot F) lodged in Rico's spinal canal, which would have caused instant paralysis from his waist down. As a result of that shot, Rico would have fallen and been unable to move. The evidence regarding the latter two shots was consistent with Rico lying on the ground while the shooter fired bullets into Rico's back at close range.
On June 26, a Riverside County sheriff's deputy stopped a car in which Guzman was sitting in the right rear passenger seat. Guzman falsely identified himself as Daniel Jimmy Guzman.
On March 18, 2005, a second amended information was filed charging Guzman with the second degree murder of Rico (Pen. Code, § 187) and alleging Guzman, in committing that offense, personally and intentionally discharged a firearm causing great bodily injury or death (Pen. Code, § 12022.53, subd. (d).) At trial, the prosecution presented witnesses who testified substantially as described above.
Guzman was previously tried and acquitted on the charge of first degree murder, but the jury was unable to reach a verdict on second degree murder.
In his defense, Guzman testified that when he returned home after work on June 24, 2003, he saw his father (Sammy) had a swollen and bloody nose, a red bump on his forehead, and a red mark on his cheek. After Sammy told Guzman about the incident with Rico, they drove to Moreno Valley because Guzman wanted to talk to Rico to make sure Sammy did not get hurt again. Guzman took along his loaded, .38-caliber revolver to protect himself and his father in case Rico tried to harm them. Guzman had met Rico before. He knew Rico had a reputation for violence and carried weapons, and he had heard Rico had stabbed and killed a man in a Corona park. When Guzman and Sammy arrived in Moreno Valley, they first drove by Montecino's house, but found no one outside. They then drove around the corner to Rico's house and saw Rico and other persons outside drinking. Guzman parked his car, got out, and walked toward Rico, who was standing next to a truck in the driveway. Guzman asked Rico, "What is up with my dad?" Rico walked quickly toward Guzman and replied, "F--- you." Rico then pulled out a knife he had hidden in his right hand behind his leg and swung it down from his right to left at Guzman's head. Rico missed and began to raise the knife to swing it again. Afraid of being stabbed, Guzman then pulled his gun from his pocket and began shooting at Rico during Rico's second swing. Rico stumbled forward, bent forward at the waist, and then stumbled backward four steps and fell to the ground. Guzman only remembered firing a couple of shots. The entire altercation happened in a matter of seconds. Guzman put the gun in his pocket, ran to his car, and drove away because he was afraid of what Rico's family might do to him. Guzman testified he was hysterical and in shock. After dropping off his father at home, Guzman drove to a restaurant, parked in its parking lot, put his gun in a rag, and threw it in a dumpster. He then walked to his girlfriend's house, about three houses away.
Sammy also testified he knew of Rico's reputation for violence, but did not know Guzman had a gun with him.
Sammy stayed in the car.
Sammy also testified that Rico swung a knife at Guzman.
In rebuttal, the prosecution presented the testimony of Joseph Cohen, the chief forensic pathologist for Riverside County, who reviewed Guzman's testimony regarding the relative positions of Guzman and Rico during the shooting. Cohen testified that Guzman's descriptions were not consistent with Rico's wounds. Rico could not have been facing Guzman and bending over when Guzman shot him twice in the back. Also, Rico would not have been able to take four steps backward after suffering the wound to his spine, because he would have been paralyzed.
The jury found Guzman guilty of second degree murder and found true the firearm use allegation. The trial court sentenced Guzman to 15 years to life for the murder conviction and a consecutive 25 years to life for the firearm enhancement.
Guzman timely filed a notice of appeal.
DISCUSSION
I
Exclusion of Evidence of Rico's Gang Membership
Guzman contends the trial court abused its discretion by excluding evidence of Rico's gang membership (i.e., Rico's gang affiliation, gang moniker, and gang tattoos).
A
Before trial, the prosecutor moved in limine to exclude evidence of Rico's gang membership, arguing the case was not gang-related. Guzman's counsel responded that the prosecutor's motion was "well-taken" and did not oppose it. Accordingly, the trial court granted the motion and excluded any references to Rico's gang moniker (Trigger) and the meaning of his gang tattoos (which appeared in autopsy photographs).
However, shortly before opening statements, Guzman's counsel requested permission to refer to Rico as Trigger during his opening statement because that was the nickname Guzman used for him. The court denied that request.
After the prosecution rested, Guzman's counsel stated his intent to present evidence of Rico's reputation for violence. The prosecutor renewed her request to exclude gang references. Guzman's counsel argued Guzman was afraid of Rico because Rico was a gang member, had gang tattoos, was violent, had been in jail, carried a weapon, and had stabbed a person in the past. The trial court stated Guzman could offer evidence explaining his state of mind (e.g., his fear of Rico), but it would weigh the probative value of that proffered evidence against its prejudicial effect. Citing People v. Wright (1985) 39 Cal.3d 576, the court concluded the evidence regarding Rico's gang membership was more prejudicial than probative and exercised its discretion under Evidence Code section 352 to exclude that evidence. Nevertheless, the court advised Guzman's counsel he could present evidence Guzman knew Rico was violent, carried a weapon, and had stabbed a person in the past.
All further statutory references are to the Evidence Code unless otherwise specified.
At trial, Guzman testified he knew of Rico's reputation for violence, had heard Rico carried weapons, and heard Rico stabbed a man to death in the past. He also testified he brought his gun because he was afraid of Rico and believed Rico was the type of person who would attack him or his father with a weapon. During the altercation, he shot Rico because he was scared and believed Rico would kill him if he did not shoot Rico.
B
Section 352 provides:
"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."
A trial court's exercise of its discretion under section 352 is reviewed on appeal for abuse of discretion. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
Section 1101, subdivision (a), generally precludes admission of evidence of a person's character when offered to prove his or her conduct on a specific occasion. Section 1103, subdivision (a)(1), provides an exception to that general rule and allows admission of character evidence in a criminal action when that evidence is offered to prove conduct of the victim in conformity with the victim's character. That provision has been construed as allowing a criminal defendant to support a claim of self-defense by presenting evidence of the victim's specific acts of violence and general reputation for violence. (People v. Wright, supra, 39 Cal.3d at p. 587.) However, evidence offered in support of a defendant's claim of self-defense (e.g., section 1103 evidence) is nevertheless subject to exclusion under sections 350 (providing only relevant evidence is admissible) and 352. (In re Christian S. (1994) 7 Cal.4th 768, 783.) " 'A person claiming self-defense is required to "prove his own frame of mind," and in so doing is "entitled to corroborate his testimony that he was in fear for his life by proving the reasonableness of such fear." [Citation.]' " (People v. Minifie (1996) 13 Cal.4th 1055, 1065.)
C
Guzman argues the trial court abused its discretion under section 352 by excluding evidence of Rico's gang membership that would have supported his claim of self-defense. Citing a Louisiana court decision (State v. Cooks (La. 1998) 720 So.2d 637), Guzman argues it is "common knowledge that street gangs protect their home territory by threatening trespassers with severe physical injury and that gang activity spawns violence." Assuming arguendo a defendant's knowledge of a victim's gang membership presumably carries with it knowledge of the gang's reputation for violence, we agree with Guzman that evidence may be relevant to a defendant's claim of self-defense (i.e., the defendant acted in fear of imminent harm or death). Therefore, we assume Guzman's purported knowledge of Rico's gang membership (including his gang tattoos and gang moniker) would have been relevant evidence on Guzman's claim that he was afraid of Rico and acted in self-defense when he shot Rico. Guzman also argues the evidence of Rico's gang membership would have been independently relevant on the issue of whether Rico actually used a weapon during the altercation (i.e., Rico, as a gang member, was more likely to be the aggressor and use a weapon). Guzman also argues the evidence of Rico's gang membership would have been relevant to support the credibility of his testimony and his father's testimony on his (Guzman's) claim of self-defense.
Assuming the evidence of Rico's gang membership was relevant, as Guzman argues, we nevertheless conclude the trial court did not abuse its discretion under section 352 by excluding that relevant evidence. As the People note, the California Supreme Court has recognized evidence of gang membership "may have a highly inflammatory impact on the jury" and therefore should be "carefully scrutiniz[ed]" by a trial court before admitting it. (People v. Williams (1997) 16 Cal.4th 153, 193.) In the circumstances of this case, the trial court expressly weighed on the record the probative value of the evidence of Rico's gang membership against its potential for undue prejudice. The court noted Guzman's claim that he was afraid of Rico was based on Rico's reputation for violence and his attack on Guzman with a knife, and not on Guzman's knowledge that Rico was a gang member. Because the court would, and did, allow Guzman to testify he knew Rico had a reputation for violence, carried weapons, and had stabbed and killed a person in the past, the trial court could reasonably conclude the additional probative value of evidence of Rico's gang membership was minimal on Guzman's state of mind (i.e., his fear of Rico). Given the highly inflammatory nature of gang membership evidence, the trial court could also reasonably conclude evidence of Rico's gang membership would create a substantial danger of undue prejudice. We conclude the trial court did not abuse its discretion under section 352 by concluding the probative value of evidence of Rico's gang membership was substantially outweighed by the probability its admission would create substantial danger of undue prejudice.
The fact that evidence of Rico's gang membership apparently was admitted at Guzman's first trial does not show the trial court, on retrial, abused its discretion under section 352 by excluding it.
D
In any event, assuming arguendo the trial court erred by excluding evidence of Rico's gang membership, we nevertheless would conclude that error was harmless under People v. Watson (1956) 46 Cal.2d 818 (Watson). (People v. Mincey (1992) 2 Cal.4th 408, 440 ["Application of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense."].) Under Watson, Guzman has the burden on appeal to show that it is reasonably probable he would have obtained a more favorable verdict had the trial court not erred. (Watson, supra, at p. 836.) Contrary to Guzman's argument, mere evidentiary error, like other trial error, generally is not subject to the more stringent standard of prejudice (i.e., harmless beyond a reasonable doubt) for federal constitutional error under Chapman v. California (1967) 386 U.S. 18. Although the Chapman standard presumably would apply when a trial court completely excludes all evidence in support of a defendant's defense (see People v. Fudge (1994) 7 Cal.4th 1075, 1103-1104), the Chapman standard does not apply in this case because the trial court admitted evidence in support of Guzman's claim of self-defense. (Fudge, at p. 1103 ["If the trial court misstepped, '[t]he trial court's ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.' [Citation.]"].)
Although the trial court excluded evidence of Rico's gang membership, it allowed Guzman to testify that he knew Rico had a reputation for violence, carried weapons, and had stabbed and killed a man. Guzman also testified he knew Rico took and sold drugs. Guzman testified regarding a prior incident when he was at Montecino's house and Rico displayed a knife and began playing with it. He testified he knew Rico "was always getting into fights" and "a lot of people were scared of him." Sammy also testified Rico had a reputation for violence. One of Rico's nephews (Carlos) testified that Rico "likes to fight." Also, both Sammy and another of Rico's nephews (Alberto) testified regarding the incident earlier on June 24, 2003, when Rico punched Sammy in the face and pinned him to the ground. Because the jury had extensive evidence showing Rico's violent character and specific acts of violence, the admission of evidence regarding Rico's gang membership would have been essentially cumulative and had little, if any, additional probative value on the issues of Rico's violent nature and Guzman's fear of Rico or whether Rico had attacked him with a knife.
Also because of that admitted evidence, evidence of Rico's gang membership would have done little to enhance the credibility of the testimony of Guzman and/or Sammy.
Furthermore, the physical evidence of the wounds sustained by Rico did not support Guzman's version of the shooting and therefore contradicted his claim of self-defense. As Cohen (the forensic pathologist) testified, the two shots in Rico's left back were not consistent with Guzman's testimony on how the shooting occurred. Rico could not have been facing Guzman and bending over when Guzman shot him twice in the back. Also, Rico would not have been able to take four steps backward after suffering the wound to his spine, because he would have been paralyzed. Because of the admission of that physical evidence and Cohen's expert testimony regarding its inconsistency with Guzman's version of events, this case was not, as Guzman argues, merely a credibility contest. Although Guzman posits on appeal that Rico's two wounds to his left back could have been caused in a manner not inconsistent with his trial testimony, the three alternative scenarios he suggests are unsupported by any expert opinion or other evidence (or any reasonable inference) and therefore we disregard those scenarios as speculative.
Guzman suggests three alternative scenarios for Rico's wounds that purportedly would be consistent with his trial testimony: (1) he may not have always been face-to-face with Rico and Rico's two wounds to his back may have occurred if Rico had swung the knife from left to right, twisted to his right, and then bent over; (2) because the shots occurred in rapid succession, he could not have shot Rico in the back as he lay helplessly on the ground after falling and he may have been mistaken about Rico stumbling backward four steps; and (3) even if he did shoot Rico while he was lying on the ground, he may have done so in self-defense in the belief Rico was still a threat. In particular, we note the first scenario is in direct conflict with Guzman's own testimony that Rico swung the knife from his right to left.
Also, evidence of Rico's gang membership was not "the only evidence the defense had to corroborate [his] and his father's claim that there was reason to fear [Rico], that [Rico] was the aggressor, and that [he (Guzman)] responded reasonably to [Rico's] conduct." There was ample evidence regarding Rico's reputation for violence and specific acts of violence that essentially had the same effect of corroborating Guzman's claimed fear of Rico and supporting findings that Rico was the aggressor and that Guzman purportedly acted reasonably in shooting Rico. However, by its verdict, the jury found that evidence unpersuasive and rejected Guzman's claim of self-defense.
Considering all of the evidence, we conclude it is not reasonably probable Guzman would have obtained a more favorable verdict had the trial court admitted evidence of Rico's gang membership. Although the jury at Guzman's first trial could not reach a verdict on second degree murder after considering evidence admitted regarding Rico's gang membership, we are not bound by the result at his first trial in determining the prejudicial effect of excluding that evidence at his retrial on that charge.
II
Exclusion of Evidence of Reputation of Rico's Family for Violence
Guzman contends the trial court erred by excluding evidence of the reputation of Rico's family for violence. He argues that because that evidence was relevant to explain why he fled the scene after the shooting, the court erred by excluding that evidence as irrelevant. He also argues that evidence was relevant to his claim of self-defense.
A
On direct examination, Guzman testified he fled after the shooting because he did not know what Rico's family was going to do in response. His counsel asked him whether he knew the reputation of Rico's family. Guzman answered, "Yes, I did." The prosecutor objected, arguing the reputation of Guzman's family was irrelevant. The trial court sustained the objection.
At a sidebar conference, Guzman's counsel argued the reputation of Rico's family for violence was relevant to explain why Guzman fled and to counter the prosecutor's anticipated argument that his flight showed his consciousness of guilt. His counsel made an offer of proof that Guzman would testify he fled immediately after the shooting because he knew Rico's family had a reputation for carrying knives and feared they would harm him. The trial court stated Guzman did not shoot Rico because his (Rico's) family was violent, but because Rico purportedly attacked him. It stated the reputation of Rico's family did not "cause him to act in self-defense. It just cause[d] him to leave." The court stated Guzman could testify he fled after the shooting because he was afraid Rico's family would harm him because he shot Rico. However, the court excluded, presumably as irrelevant, testimony by Guzman that he knew the reputation of Rico's family for violence and their prior acts of violence.
On continuation of direct examination, Guzman testified he left the scene after the shooting because he "was afraid of what [Rico's] family might do."
B
Section 350 provides: "No evidence is admissible except relevant evidence." Except as otherwise provided by statute or the federal or California Constitution, all relevant evidence is admissible. (§ 351; Cal. Const., art. I, § 28, subd. (d); People v. Carter (2005) 36 Cal.4th 1114, 1166.) Relevant evidence is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.) The California Supreme Court has stated evidence is relevant if it "tends 'logically, naturally, and by reasonable inference' to establish material facts such as identity, intent, or motive." (People v. Garceau (1993) 6 Cal.4th 140, 177, disapproved on another ground in People v. Yeoman (2003) 31 Cal.4th 93, 117.) "The trial court has broad discretion in determining the relevance of evidence [citations], but lacks discretion to admit irrelevant evidence. [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 132.)
C
Citing People v. Minifie, supra, 13 Cal.4th 1055, Guzman initially argues the trial court erred by excluding his testimony regarding the reputation of Rico's family for violence because that evidence was relevant to his claim of self-defense. However, our reading of the trial record does not show Guzman offered that evidence for that purpose. Although Guzman's trial counsel cited Minifie, he did so in attempting to persuade the trial court that evidence of the reputation of Rico's family for violence was relevant to explain why Guzman fled the scene after the shooting. His trial counsel did not argue that evidence was relevant to his claim of self-defense. Because that theory of relevance was not raised below, we conclude the trial court did not abuse its discretion by excluding evidence of the reputation of Rico's family for violence to the extent Guzman now argues it was relevant to his claim of self-defense. As discussed in part I, ante, Guzman supported his claim of self-defense with testimony that Rico (and not Rico's family) had a reputation for violence. Guzman does not cite to the record to show otherwise.
Minifie concluded evidence of prior threats by the victim's group against the defendant and the group's reputation for violence was relevant to his claim of self-defense because they tended to prove his state of mind when he shot at the victim. (People v. Minifie, supra, 13 Cal.4th at pp. 1065-1067.)
Although the trial court, in discussing Minifie, noted that case was distinguishable because Guzman was not claiming he acted in self-defense because of threats by, or the reputation for violence of, Rico's family, Guzman's counsel never corrected the court or expressly argued that evidence was relevant to his claim of self-defense.
Guzman alternatively argues the trial court erred by excluding evidence of the reputation of Rico's family for violence because, as he argued at trial, that evidence was relevant to explain why he fled the scene after the shooting. At the time of Guzman's testimony, the prosecution had already presented testimony showing he fled the scene after the shooting. During his direct examination, Guzman therefore reasonably attempted to explain why he fled the scene afterward, anticipating (correctly) that the prosecutor would argue, and the trial court would instruct, that flight after the shooting could be considered in deciding Guzman's guilt. As the California Supreme Court has noted, "[t]he purpose of presenting evidence of flight is to establish consciousness of guilt . . . ." (People v. Navarette (2003) 30 Cal.4th 458, 502.) Alternatively stated, evidence of flight "logically permits an inference that his movement was motivated by guilty knowledge." (People v. Turner (1990) 50 Cal.3d 668, 694.) In the circumstances of this case, the proffered testimony by Guzman that he fled after the shooting because he was afraid of Rico's family based on his knowledge of their reputation for violence (or, specifically, their reputation for carrying knives) would have had a tendency to prove the disputed fact of why he fled after the shooting. Accordingly, that evidence was relevant under section 210. That evidence would have tended logically, naturally, and by reasonable inference to show the material fact that Guzman fled the scene because he was afraid Rico's family would harm him (based on their reputation for violence), rather than because he was conscious of his guilt. (People v. Garceau, supra, 6 Cal.4th at p. 177.) Because the relevance of that reputation evidence to show Guzman's state of mind on fleeing after the shooting was argued by Guzman's counsel below and its relevance on that issue cannot reasonably be disputed, we conclude the trial court abused its discretion by excluding that evidence as irrelevant to explain why Guzman fled after the shooting.
Although the People apparently argue Guzman abandoned his request to present evidence on the reputation of Rico's family for violence, he did not do so until after the trial court expressed its belief that evidence was irrelevant. In so doing, we infer Guzman merely accepted the court's ruling and did not waive his relevancy argument for purposes of appeal. Furthermore, because the prosecutor did not object to the evidence as unduly prejudicial under section 352 and the trial court did not consider that ground for excluding the evidence, we need not, and do not, address whether the trial court, had it conducted a proper section 352 weighing, would have abused its discretion by excluding that evidence, albeit relevant, as unduly prejudicial under section 352.
D
Although the trial court erred by excluding evidence of the reputation of Rico's family for violence, we nevertheless conclude that error was harmless because Guzman does not carry his burden on appeal to show it is reasonably probable he would have obtained a more favorable verdict had that evidence been admitted. (Watson, supra, 46 Cal.2d at p. 836.) As discussed above, Guzman did testify that he left the scene after the shooting because he "was afraid of what [Rico's] family might do." Therefore, he testified, in effect, that he fled the scene because he was afraid Rico's family might hurt him after they saw him shoot Rico. Any additional probative value of evidence of the reputation of Rico's family for violence would have been minimal in explaining his state of mind when he left the scene. Furthermore, even had the jury believed Guzman fled the scene afterward because he was afraid Rico's family would hurt him and not because he was conscious of his guilt, his flight after the shooting was essentially a collateral issue to his primary claim of self-defense. As discussed above, the prosecution presented the testimony of percipient witnesses that Rico did not have a knife in his hand or attack Guzman when Guzman shot him. Furthermore, the physical evidence of Rico's wounds, as Cohen testified, was inconsistent with Guzman's testimony describing the altercation and Guzman failed to rebut that testimony. Given that strong evidence of Guzman's guilt, we conclude it is not reasonably probable he would have obtained a more favorable verdict had the trial court admitted evidence on the reputation of Rico's family for violence. (Ibid.)
As we concluded in part I. C., ante, the applicable standard for prejudicial error in this type of case is the Watson standard for mere trial error. Because the trial court did not exclude all evidence in support of Guzman's defense, the more stringent Chapman standard does not apply. (People v. Fudge, supra, 7 Cal.4th at pp. 1103-1104.)
III
Admission of Evidence Guzman Was Trained by the Military to Kill
Guzman contends the trial court erred by admitting evidence he was trained by the military to kill because that evidence was both irrelevant and unduly prejudicial under section 352.
A
On cross-examination, the prosecutor asked Guzman how difficult it was for him to fire the .38-caliber revolver when he shot Rico. Guzman testified he did not have to squeeze it very hard. The prosecutor then asked him compare that difficulty with the difficulty of firing an M-16 rifle. When Guzman's counsel objected to that question as speculative, the prosecution laid a foundation by asking Guzman whether he was familiar with an M-16 rifle. The prosecutor expounded on that question, asking him: "You are a trained killer, are you not?" Guzman's counsel objected on grounds of speculation and section 352. The trial court ruled the question was argumentative as stated and requested that the prosecutor rephrase the question. The prosecutor asked Guzman: "Have you been trained to fire a weapon repeatedly to kill somebody?" Guzman answered that he had been trained to fire at targets. Referring to his testimony he had been in the Marine Corps, the prosecutor asked: "[I]n the Marine Corps do they just teach you to target practice?" Guzman answered: "Human silhouettes." The prosecutor asked him if the Marine Corps drills were to "shoot to kill." Guzman answered: "They teach us to aim at center mass." The prosecutor asked: "So you are taught to shoot to kill?" Guzman's counsel then objected and an unreported sidebar conference was held.
As subsequently described on the record by the trial court, during that sidebar conference the court overruled the objection by Guzman's counsel to the prosecutor's question regarding Guzman's military experience, explaining it "believed that it was appropriate, given the nature of the case, and . . . how the shooting occurred, vis-a-vis, his training and experience, and knowledge of the use of firearms." Guzman's counsel stated: "Just for the record, your Honor, I objected to the word 'killer' being used repeatedly by the People. . . . [Guzman] was in the Marines, but the People knew very well that he had never shot . . . anybody or at anybody. And the word 'killer' was, I think, was extremely prejudicial. [¶] . . . [¶] [F]or [the prosecutor] to say that [Guzman] is a trained killer, I think, is highly, highly prejudicial, especially when [she knows] . . . [Guzman] has never seen any action anywhere. And part of the training that he had was part of the training that all Marines have, not only him." The trial court advised Guzman's counsel that on redirect he could ask Guzman questions to clarify he was a cook in the military and had not seen combat.
Continuing her cross-examination, the prosecutor asked Guzman whether his Marine Corps training to shoot at center mass meant to shoot at the center of the body of a human silhouette. Guzman answered that it was. The prosecutor asked him whether "it is the philosophy of the Marine Corps that when you hit center mass, it is your intention to kill?" Guzman answered: "It's the training, yes." The prosecutor then asked him how many bullets hit Rico's center mass. Guzman answered that the coroner's report showed four bullets did so. Guzman testified that in the Marine Corps he was required to shoot and qualify annually from a distance of 200 to 500 yards. The prosecutor asked him: "So you're trained to shoot center mass to kill from 200 to 500 yards?" Guzman replied, "Yes . . . ." He testified he had no opinion on whether it is easier for him to hit his intended target when he is only two to three feet away. During subsequent cross-examination, Guzman testified he just "reacted" when he shot Rico to defend himself from Rico's knife and did not want to kill him. Guzman stated his intent was to get Rico away from him.
On redirect examination, Guzman testified he served a total of eight years in the Marine Corps and worked as a cook. He did not see any "action" and never shot, killed, or attempted to shoot or kill anybody while in the Marines. He stated his training while in the Marines was typical training that every Marine receives. He stated: "Every Marine is basically a rifleman for combat training." He explained that his Marine training included how to aim and shoot an M-16 rifle and how to take it apart and clean it. He also was taught self-defense, including how to react to danger (e.g., like during hand-to-hand combat). He testified that when he reacted to Rico's knife attack, he was reacting based on instincts the Marines taught him. However, during his Marine Corps rifle training he was never in a situation where the target was as close as Rico was to him.
The following day, the prosecutor informed the trial court that she wished to call Ricardo Fuentes, a Riverside County District Attorney investigator and former Marine, to testify in rebuttal to impeach Guzman's testimony "about his primary functions in the military." The prosecutor argued Fuentes's testimony would rebut Guzman's testimony that he was afraid of and just reacted to Rico and that his job with the Marines was only as a cook. Fuentes would testify that all Marines are first, and foremost, riflemen trained for combat and trained to kill. Guzman's counsel objected to Fuentes's proffered rebuttal testimony, arguing Guzman's primary purpose in the Marines was as a cook and only the infantry had the purpose of fighting and shooting. The trial court concluded Fuentes's proffered testimony was relevant to rebut Guzman's testimony regarding his Marine training and job.
Thereafter, Fuentes testified he had served in the Marine Corps for four years and had since served in the reserves. Every Marine first goes to boot camp for 16 weeks, during which he or she learns to fire an M-16 assault rifle and a .45-caliber semiautomatic handgun. The primary objectives of boot camp are to train a Marine to think as a Marine, work as a team, and shoot and kill the enemy. It includes four weeks of extensive training in shooting at the range. Marines practice shooting at a target, which is a silhouette of the head and torso of a human body. Marines are taught to shoot at the "center mass" (or right chest area) of the silhouette. They are trained to shoot to kill. Marines are trained to shoot during combat and other stressful situations. They are taught to "[i]mprovise, adapt, overcome, [and] never give up." After boot camp, Marines must qualify annually in shooting an M-16 rifle. Even if a Marine is a cook, his or her primary obligation "is to be a Marine, to know your weapon, your M-16, and how to fire your weapon, keep it clean, and shoot to kill the enemy." On cross-examination by Guzman's counsel, Fuentes confirmed that he was taught to shoot to kill while in the Marines. Guzman's counsel asked him: "Would you say you were a trained killer, then?" Fuentes answered: "Yes."
B
Guzman asserts the trial court erred by admitting evidence he was trained to kill by the military (i.e., the Marine Corps). That evidence was admitted in the course of both his cross-examination by the prosecutor and Fuentes's rebuttal testimony. Guzman argues the evidence regarding his Marine Corps training was irrelevant to the issues in this case because it did not prove how he shot Rico. He also argues there was no dispute that he intended to kill Rico when he shot him.
Based on our consideration of the record, we conclude the trial court properly admitted the evidence on his Marine Corps training as relevant to the issues in this case. A defendant acts in self-defense when he or she has an actual, and objectively reasonable, belief that he or she is in imminent danger of death or serious bodily harm. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083; People v. Romero (1999) 69 Cal.App.4th 846, 853.) In deciding a claim of self-defense, "the jury must consider all of the relevant circumstances in which [the] defendant found [him]self." (Humphrey, at p. 1083.) In the circumstances of this case, because Guzman was trained as a Marine, that training was a relevant circumstance or factor in the jury's determination whether Guzman acted in self-defense. The testimonies of both Guzman and Fuentes on Marine Corps training gave the jury evidence on training Guzman presumably received in shooting M-16 rifles and .45-caliber handguns at the center mass of a human body with the purpose to kill. It also gave the jury evidence that Guzman, as a Marine, was presumably trained to shoot to kill during combat or other stressful situations. As the People assert, that evidence was relevant because it tended to impeach or otherwise discredit Guzman's testimony that he was in shock and just reacted by shooting without aiming when Rico (purportedly) attacked him. Based on Guzman's Marine Corps training, the jury could reasonably infer that because he was trained to respond in combat situations by shooting to kill, he would not have just reacted by shooting without aiming or without the intent to kill Rico. Therefore, that evidence tended to impeach or discredit Guzman's testimony that he did not want to kill Rico and only intended to get Rico away from him. Contrary to Guzman's assertion on appeal, it was not undisputed at trial that he had the intent to kill Rico. Rather, when asked whether he intended to kill Rico when he fired his gun, Guzman testified he did not want to kill Rico and only intended to get Rico away from him. Guzman also testified he did not aim when he shot the gun six times.
Although Guzman subsequently admitted he intended to kill Rico when he fired his gun, the inconsistency in Guzman's testimony shows the issue of his intent was not, as he now asserts, undisputed at trial. (Also see People v. Waidla (2000) 22 Cal.4th 690, 723 [defendant's plea of not guilty placed in dispute all elements of charged offenses].)
Based on the testimonies of Guzman and Fuentes on Marine Corps training, the jury could reasonably infer Guzman, with his Marine Corps training, would not have shot Rico six times, including two shots in his back, if he truly were acting in self-defense. Because the jury was charged with deciding whether (and how) a reasonable person in Guzman's position would have acted in self-defense, the jury was required to consider all relevant circumstances in which Guzman found himself. (People v. Humphrey, supra, 13 Cal.4th at p. 1083.) Those circumstances included Guzman's Marine Corps training in shooting a weapon at center mass to kill a person, which was relevant in determining his state of mind when he reacted to Rico's (purported) attack by shooting him six times. Accordingly, because the testimonies of Guzman and Fuentes on Marine Corps training were relevant to impeach or discredit Guzman's testimony and/or otherwise relevant to his claim of self-defense, the trial court did not err by admitting that evidence.
We also reject Guzman's summary argument that the prosecutor's closing argument showed the Marine Corps training testimony was inadmissible character evidence.
C
Guzman alternatively asserts the trial court erred by admitting Fuentes's testimony regarding Marine training because that evidence was unduly prejudicial under section 352. Assuming arguendo Guzman adequately stated his objection to that evidence on the ground of undue prejudice under section 352, we conclude the trial court did not abuse its discretion under section 352 by finding the probative value of that evidence was not substantially outweighed by the probability its admission would create a substantial danger of undue prejudice. As discussed above, Guzman's Marine Corps training was a relevant circumstance or factor in the jury's determination whether Guzman acted in self-defense. In particular, evidence on his Marine Corps training was relevant because it tended to impeach or otherwise discredit his testimony that he was in shock and just reacted by shooting without aiming when Rico (purportedly) attacked him. That evidence also tended to impeach or discredit Guzman's testimony that he did not want to kill Rico and only intended to get Rico away from him. Guzman's Marine Corps training in shooting a weapon at center mass to kill a person was relevant to show his state of mind when he reacted to Rico's (purported) attack by shooting him six times. Accordingly, the trial court could reasonably conclude that evidence of Guzman's Marine Corps training had substantial probative value on the material issues in this case.
Unfortunately, the sidebar conference during which Guzman's counsel stated his objection to the prosecutor's cross-examination of Guzman was conducted off the record without a reporter. Because the language used by Guzman's counsel in objecting to that cross-examination is not included in the record, we do not know with certainty what questions of Guzman were the subject of the objection or the exact ground(s) for that objection. Furthermore, we do not know with certainty the trial court's language when it ruled on that objection. Although, as noted above, the record includes the trial court's subsequent description of that unreported sidebar conference, we cannot be certain that its description was necessarily accurate and/or complete in detailing that conference. Therefore, although, as the People note, that reported description includes a discussion of an objection by Guzman's counsel to the prosecutor's reference to Guzman as a trained killer as "extremely prejudicial," we interpret the unreported sidebar conference favorably to Guzman and presume his counsel adequately objected to evidence that Guzman was trained to kill by the military on the ground of undue prejudice under section 352.
In considering any undue prejudice that possibly could be caused by evidence of Guzman's Marine Corps training, the trial court could reasonably conclude the likelihood of undue prejudice was minimal and any prejudice so caused would be insignificant when compared to the substantial probative value of that evidence. Contrary to Guzman's conclusory argument, the court could have reasonably concluded evidence of his Marine Corps training would not "uniquely tend[] to evoke an emotional bias" against him. (People v. Carter, supra, 36 Cal.4th at p. 1168.) Also contrary to Guzman's assertion, the prosecution did not portray him as a trained killer or bad character, but instead presented evidence (through cross-examination of Guzman and Fuentes's rebuttal testimony) regarding Guzman's Marine Corps training and, in particular, his training to shoot to kill. Although, as discussed above, evidence of his Marine Corps training was probative in proving Guzman's guilt of second degree murder, the asserted prejudice to his defense caused by that probative evidence was not undue under section 352. Accordingly, we conclude the trial court did not abuse its discretion by overruling Guzman's section 352 objection to evidence of his Marine Corps training.
The trial court sustained Guzman's objection to the sole instance in which the prosecutor used the term "trained killer." Unlike Guzman, we do not equate, and it is unlikely the jury equated, evidence of a person's military training to shoot to kill with evidence that a person is a "trained killer" or other bad character.
D
Assuming arguendo the trial court erred by admitting evidence of Guzman's Marine Corps training, we nevertheless would conclude that error was harmless under the Watson standard of prejudice. Guzman argues that because this was a close case, evidence portraying him as a trained killer was so prejudicial that it is likely he would have obtained a more favorable verdict had that evidence been excluded. However, the evidence of Guzman's Marine Corps training had substantial probative value to show his state of mind when he reacted to Rico's (purported) attack by shooting him six times (i.e., whether he acted in self-defense). That evidence did not portray him as a trained killer or bad character, and the trial court sustained Guzman's objection to the prosecutor's single use of that term. Rather, the evidence merely described Guzman's Marine Corps training and, in particular, his training to shoot to kill, which was relevant to the jury's consideration of all circumstances in determining how a reasonable person in Guzman's position would have acted in self-defense. Furthermore, the prosecution presented the testimony of percipient witnesses that Rico did not have a knife in his hand or attack Guzman when Guzman repeatedly shot him. Also, the physical evidence of Rico's wounds, as Cohen testified, was inconsistent with Guzman's testimony describing the altercation and Guzman failed to rebut that testimony. Given that strong evidence of Guzman's guilt, we conclude it is not reasonably probable he would have obtained a more favorable verdict had the trial court excluded evidence that he was trained by the military to shoot to kill. (Watson, supra, 46 Cal.2d at p. 836.)
IV
Admission of Evidence on Operation of .38-caliber Revolver
Guzman contends the trial court erred by admitting evidence on operation of a .38-caliber revolver.
A
Guzman testified he used a .38-caliber special revolver to shoot Rico. He stated that in response to Rico's (purported) attack, he pulled the gun from his pocket and just started shooting. He did not recall firing six shots and thought he fired only a couple of times. On cross-examination, he testified that when he squeezed the trigger, the gun fired without having to pull the hammer back. He stated the trigger did not have to be squeezed very hard.
During a subsequent conference outside the jury's presence, the prosecutor informed the trial court that she probably would call a gun expert in rebuttal to testify that "it is more difficult to squeeze the trigger and fire [a .38-caliber Smith & Wesson revolver] than [squeezing the trigger after pulling] the hammer back." Guzman's counsel objected to that proffered testimony, arguing the gun was never recovered and therefore never examined by an expert. He also argued an expert could not testify whether the gun was a Smith & Wesson as opposed to another make. The court did not rule at that time on the admissibility of that testimony.
The following day, the prosecutor informed the court that she would be calling Fuentes to testify on "the workings of a .38 Special, which he owns" (in addition to testimony, as described above, on Marine Corps training). The prosecutor stated that testimony would show Guzman "is minimizing what he did," explaining that it requires more pressure to fire a gun with double-action (as Guzman did) than with single-action (i.e., after first pulling back the hammer). The proffered testimony would impeach Guzman's testimony that he just reacted. She also requested that Fuentes be allowed to bring his revolver to court to be used as an example. Guzman's counsel objected to Fuentes's proffered testimony on the operation of a .38-caliber revolver, arguing it would be collateral and confuse the jury. The trial court stated:
"[I]n my mind, there's some collateral nature to it. . . . [B]ut there's also relevancy, given [Guzman's] testimony. Keeping in mind, self-defense requires that you only repel that which is necessary and apparent at the time, and if his gun requires breaks in between each of the pulls of the trigger, at some point, given the testimony of Dr. Cohen, [Rico] was no longer a threat to him.
"Also, given the nature of the bullet entry wounds from the back, [the proffered testimony] appears to have some relevance with respect to how the actual shots are squeezed off. And I think the argument could be, even if -- assuming the jury believes the versions given by [Guzman] and his father, at some point [Rico] was no longer a threat. And the fact that the person continues to apply what is necessary as pressure, which would cause some [interval] of time in between, he could then go from, perhaps, again, . . . if self-defense is agreed to by the jury, they may still find that, at some point, that fear and that necessity to act in self-defense left, and that this was then an intent to kill beyond that which was necessary in order to apply self-defense. [¶] . . . [¶]
" . . . I think that that has relevancy . . . given the nature of the testimony of [Guzman] with respect to those issues."
Accordingly, the trial court ruled Fuentes's proffered testimony on the operation of a .38-caliber revolver was admissible.
Fuentes testified he was a Riverside County Sheriff's Deputy for 16 years before recently becoming an investigator with the Riverside County District Attorney's Office. During those years, he learned how to operate revolvers. He owned a .38-caliber special revolver made by Smith & Wesson and was qualified and trained to shoot it. He demonstrated how he loaded his revolver's cylinder with bullets. He testified a .38-caliber special revolver "can be shot two ways: Single-action, and double-action." He explained: "[W]hen [the hammer's] forward, and you actually pull the trigger all the way back until the hammer comes back and goes forward, that's double action. When you actually have your thumb on the hammer and pull it back, and then . . . pull the trigger to shoot, that's single-action." Fuentes testified it is easier to pull the trigger if the hammer has first been manually pulled back. It is harder to fire a gun (i.e., pull the trigger) if the hammer has not first been pulled back. To fire another shot, the trigger must then be released and pulled again, signaling the cylinder to put another bullet in place, which gives the hammer enough time to go back and forward again. With a revolver, the shooter has "the capability of pulling the hammer back to make a single-action or to pull the trigger [for double-action,] which is harder." On cross-examination, Fuentes admitted he did not know what kind of gun was used in this case.
B
Guzman asserts the trial court erred by admitting Fuentes's testimony on the operation of a .38-caliber revolver because it was irrelevant to the issues in this case. He argues Fuentes's revolver was not sufficiently similar to the gun he (Guzman) used in shooting Rico. Although both guns were revolvers and of the same .38-caliber, he argues that was insufficient for Fuentes's testimony to be relevant. He argues it therefore was pure speculation that both guns operated in the same manner. However, we conclude the trial court did not err by implicitly finding the guns were sufficiently similar to be of probative value to the jury's consideration of Guzman's claim of self-defense. Fuentes essentially testified that any .38-caliber revolver could be operated in either a single-action or a double-action manner. In shooting a revolver in double-action, the shooter does not first manually pull back the hammer, but on pulling the trigger the hammer is mechanically pulled back and then fired. That type of action requires more force and time than single-action. Because Guzman testified he fired his .38-caliber revolver by just pulling the trigger (i.e., double-action), Fuentes's testimony and demonstration were useful for the jury's understanding of how the revolver operated and, in particular, how much relative force and time were required to fire it. There is no logical reason to believe that testimony would have been any different had Fuentes had Guzman's actual revolver (which Guzman discarded in a dumpster), instead of his own revolver, to use in his demonstration and testimony. (Cf. People v. Roldan (2005) 35 Cal.4th 646, 709 ["[T]rial court properly permitted the prosecutor to display a gun similar to defendant's for demonstrative purposes because the actual gun defendant used was never recovered."].) Any purported difference between the two revolvers affected only the weight of Fuentes's testimony and not its admissibility. (People v. Coddington (2000) 23 Cal.4th 529, 596, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
Guzman also argues Fuentes's testimony was irrelevant because it did not tend to prove or disprove any disputed fact in the case. Although Fuentes did not testify regarding the exact amount of pressure required to pull the trigger of a .38-caliber revolver in a double-action manner, he testified that firing a revolver in double-action was harder than firing it in single-action. Based on Fuentes's testimony, the jury could reasonably infer that Guzman's repeated, double-action firing of his revolver at Rico required additional effort and time than single-action firing. That relative effort and time were relevant, as the trial court noted, on the disputed issue of whether Guzman acted in self-defense. Additional effort and time in firing the gun would tend to support a finding that Guzman did not just react and start shooting, and instead intentionally continued to shoot Rico after there was no longer a need to defend himself, and therefore did not act in self-defense in killing Rico. Accordingly, the trial court correctly concluded Fuentes's testimony on the operation of a .38-caliber revolver was relevant. The absence of testimony regarding the exact pressure required to fire a revolver or Guzman's relative hand strength affected only the weight of Fuentes's testimony and not its admissibility.
C
Guzman alternatively argues the trial court abused its discretion under section 352 by admitting Fuentes's testimony on the operation of a .38-caliber revolver. Assuming arguendo Guzman adequately raised a section 352 objection by arguing Fuentes's proffered testimony would be collateral and confuse the jury, we conclude the trial court did not abuse its discretion under section 352 in admitting that testimony. The court could reasonably conclude Fuentes's proffered testimony had substantial probative value on the issue of Guzman's claim of self-defense in that it would tend to refute Guzman's testimony that he just reacted by shooting and would instead support a finding he intentionally continued to shoot Rico after there was no longer a need to defend himself. Because Guzman's firing of his .38-caliber revolver in a double-action manner required relatively more force and time than firing it in a single-action manner, Fuentes's testimony tended to both impeach Guzman's testimony and prove he did not act in self-defense when he shot Rico six times (including twice in the back at close range).
In considering the arguable collateral nature of Fuentes's testimony and the possibility it would confuse or mislead the jury, the trial court could reasonably conclude that possibility was insignificant and did not substantially outweigh its substantial probative value. (§ 352.) Contrary to Guzman's argument, the relative amount of pressure he had to use to fire his revolver was an issue in this case (i.e., was probative on his claim of self-defense, as discussed above), and therefore did not mislead the jury regarding the issues. The trial court did not abuse its discretion under section 352 by concluding the probative value of Fuentes's testimony on the operation of a .38-caliber revolver was not substantially outweighed by the probability that its admission would confuse the issues or mislead the jury.
D
Assuming arguendo the trial court erred by admitting Fuentes's testimony on the operation of a .38-caliber revolver, we nevertheless would conclude that error was harmless under the Watson standard of prejudice. Although Guzman argues this was a close case and Fuentes's testimony impeached him and his father on a matter of no consequence, we believe that testimony was on a matter of consequence. Fuentes's testimony had substantial probative value on the issue of whether Guzman acted in self-defense. Also, Fuentes's demonstration of how his revolver operated did not inflame the jury, but instead presented it with probative evidence on how Guzman's revolver likely operated and the relative time and effort required to repeatedly shoot it at Rico. Furthermore, the prosecution presented the testimonies of percipient witnesses that Rico did not have a knife in his hand or attack Guzman when Guzman shot him. Also, the physical evidence of Rico's wounds, as Cohen testified, was inconsistent with Guzman's testimony describing the altercation and Guzman did not rebut that testimony. Given that strong evidence of Guzman's guilt, we conclude it is not reasonably probable he would have obtained a more favorable verdict had the trial court excluded the evidence on the operation of a .38-caliber revolver. (Watson, supra, 46 Cal.2d at p. 836.)
V
Refusal of Instruction with CALJIC No. 5.17 on Imperfect Self-defense
Guzman contends the trial court erred by refusing his request for an instruction with CALJIC No. 5.17 on voluntary manslaughter based on imperfect self-defense, which is a lesser included offense of second degree murder.
A
Guzman requested an instruction with CALJIC No. 5.17 on voluntary manslaughter based on imperfect self-defense as a lesser included offense of second degree murder. CALJIC No. 5.17 provides:
"A person who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully but does not harbor malice aforethought and is not guilty of murder. This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief. Such an actual but unreasonable belief is not a defense to the crime of [voluntary] [or] [involuntary] manslaughter.
"As used in this instruction, an 'imminent' [peril] [or] [danger] means one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer.
"[However, this principle is not available, and malice aforethought is not negated, if the defendant by [his] [her] [unlawful] [or] [wrongful] conduct created the circumstances which legally justified [his] [her] adversary's [use of force], [attack] [or] [pursuit].]
"[This principle applies equally to a person who kills in purported self-defense or purported defense of another person.]" (CALJIC No. 5.17.)
Guzman's counsel argued there was sufficient evidence for the jury to find Guzman acted in good faith, but unreasonably, in defending himself against Rico. The prosecutor objected to instruction with CALJIC No. 5.17, arguing: "[There] is not an honest, but unreasonable belief. I mean if [Rico's] actually coming at him with a knife, there is nothing unreasonable about his actions whatsoever." The trial court agreed with the prosecutor, concluding that if the jury believed Guzman's defense theory, it could only find he acted in reasonable, and not unreasonable, self-defense. Therefore, the court refused to instruct with CALJIC No. 5.17. Nevertheless, the court agreed to, and did, instruct with CALJIC Nos. 8.40 and 8.42 on voluntary manslaughter based on sudden quarrel or heat of passion. It also instructed with CALJIC Nos. 8.10 and 8.11 on second degree murder and malice aforethought and with CALJIC No. 5.12 on justifiable homicide based on reasonable (i.e., perfect) self-defense.
B
A trial court has a duty to instruct sua sponte on lesser included offenses " 'when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]' " (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) The purpose of that instructional duty "is not simply to guarantee some plausible third choice between conviction of the charged offense or acquittal, but to assure, in the interest of justice, the most accurate possible verdict encompassed by the charge and supported by the evidence." (Id. at p. 161, fn. omitted.) In deciding whether there is substantial evidence of a lesser offense, a trial court should not evaluate the credibility of witnesses, which is a task for the jury, or consider inconsistencies presented by the defense. (Id. at pp. 162-163.)
"Under California law, a lesser offense is necessarily included in a greater offense if . . . the statutory elements of the greater offense . . . include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117.) Voluntary manslaughter based on unreasonable self-defense is a lesser included offense of murder because it negates the element of malice aforethought required for murder. (Breverman, supra, 19 Cal.4th at pp. 153-154, 159.)
C
Guzman asserts that because there is substantial evidence to support his conviction of voluntary manslaughter based on imperfect self-defense as a lesser included offense of murder, the trial court erred by refusing his request for instruction with CALJIC No. 5.17. He notes that voluntary manslaughter based on imperfect self-defense requires a jury to find the defendant "killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury," thereby implicitly finding the defendant acted without the requisite malice for murder. (In re Christian S., supra, 7 Cal.4th at p. 771.) He also notes a defendant may be found not guilty of murder based on perfect self-defense unless the nature of the attack did not justify use of deadly force or the force used exceeded that reasonably necessary to repel the attack. (People v. Hardin (2000) 85 Cal.App.4th 625, 629-630.) Therefore, Guzman argues there is no legal difference between a defendant who kills in an actual, but unreasonable, belief in the need to act in self-defense (i.e., misconstrued the existence of imminent danger to life or great bodily injury) and a defendant who kills in an actual and reasonable belief in the need to defend him- or herself, but with an actual, but unreasonable, belief regarding the amount of force reasonably necessary to defend him- or herself. Guzman argues there is substantial evidence to support a finding he acted in the actual and reasonable belief in the need to defend himself, but with an actual, but unreasonable, belief regarding the amount of force reasonably necessary for that self-defense. There was evidence supporting a finding Rico attacked Guzman with a knife and therefore Guzman actually and reasonably believed in the existence of the need to defend himself. However, there was also evidence (e.g., Cohen's testimony) supporting a finding Guzman continued shooting Rico after the existence of that need to self-defend ended (e.g., when he shot Rico twice in the back), but that Guzman, in so doing, actually, albeit unreasonably, believed he needed to continue to defend himself. Therefore, Guzman argues there was substantial evidence to support an instruction with CALJIC No. 5.17 on voluntary manslaughter based on imperfect self-defense as a lesser included offense of murder.
D
We assume arguendo, without deciding, that the trial court erred by not instructing with CALJIC No. 5.17 on voluntary manslaughter based on imperfect self-defense as a lesser included offense of murder. Assuming that instructional error, we conclude because it is not reasonably probable Guzman would have received a more favorable verdict had the trial court instructed with CALJIC No. 5.17, that error was harmless under the Watson standard of prejudice and therefore reversal of his conviction of second degree murder is not required.
Although Guzman argues the more stringent Chapman standard of prejudice applies to the assumed instructional error, the California Supreme Court held that type of instructional error does not infringe on a criminal defendant's federal constitutional rights, but only his or her rights under the California Constitution, and therefore the less stringent Watson standard of prejudice applies. In Breverman, the California Supreme Court held the failure of a trial court to instruct on a lesser included offense (in a noncapital case) does not violate the United States Constitution and constitutes mere trial error under California law, subject to the harmless error standard of prejudice set forth in Watson, supra, 46 Cal.2d at p. 836. (Breverman, supra, 19 Cal.4th at pp. 165, 176-178.) Breverman stated: "[I]n a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under Watson. A conviction of the charged offense may be reversed in consequence of this form of error only if, 'after an examination of the entire cause, including the evidence' (Cal. Const., art. VI, § 13), it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred [citation]." (Id. at p. 178, fn. omitted.)
Based on our review of the record, we conclude it is not reasonably probable Guzman would have obtained a more favorable outcome had the trial court instructed the jury on the lesser included offense of voluntary manslaughter based on imperfect self-defense. (Breverman, supra, 19 Cal.4th at p. 178; Watson, supra, 46 Cal.2d at p. 836.) As the jury was instructed, murder requires malice aforethought. (§ 187, subd. (a); CALJIC No. 8.10.) The jury was also instructed on the meaning of malice. (CALJIC No. 8.11.) Therefore, when the jury found Guzman guilty of second degree murder, it necessarily found Guzman unlawfully killed Rico with malice aforethought. Imperfect self-defense applies to negate the existence of malice, making the crime voluntary manslaughter and not murder. (People v. Humphrey, supra, 13 Cal.4th at p. 1082.) By finding Guzman had the requisite malice to unlawfully kill Rico, the jury necessarily resolved the factual question of voluntary manslaughter adversely to Guzman under other, properly given instructions. In People v. Sedeno (1974) 10 Cal.3d 703 (overruled on another ground in People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12, and in Breverman, supra, at p. 149), the Supreme Court stated:
"[I]n some circumstances it is possible to determine that although an instruction [a trial court is required to give sua sponte] was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury's consideration since it has been resolved in another context, and there can be no prejudice to the defendant since the evidence that would support [such] a finding . . . has been rejected by the jury." (People v. Sedeno, supra, 10 Cal.3d at p. 721, italics added.)
Since Sedeno, the California Supreme Court has applied that rule in appropriate cases. (See, e.g., People v. Coffman and Marlow (2004) 34 Cal.4th 1, 96-98; People v. Maury (2003) 30 Cal.4th 342, 422; People v. Lewis (2001) 25 Cal.4th 610, 646.)
Because the jury, by finding Guzman guilty of second degree murder, necessarily found he had the requisite malice to unlawfully kill Rico, any error by the trial court in not instructing on the lesser included offense of voluntary manslaughter based on imperfect self-defense was harmless. Because "the factual question posed by the omitted instruction [i.e., on the lesser included offense of voluntary manslaughter based on imperfect self-defense] was necessarily resolved adversely to [Guzman] under other, properly given instructions," we conclude there is no reasonable probability the verdict would have been more favorable to Guzman had the trial court given that instruction sua sponte, and therefore the assumed error was not prejudicial. (People v. Sedeno, supra, 10 Cal.3d at p. 721, italics added; Breverman, supra, 19 Cal.4th at p. 178.)
Even were we not to apply the Sedeno rule, we nevertheless would conclude there is no reasonable probability Guzman would have received a more favorable outcome had the trial court instructed sua sponte on the lesser included offense of voluntary manslaughter based on imperfect self-defense. (Breverman, supra, 19 Cal.4th at p. 178.) Based on the evidence more fully discussed above, the prosecution presented the testimony of percipient witnesses that Rico did not have a knife in his hand or attack Guzman when Guzman shot him. The jury may very well have found those witnesses credible and the defense witnesses incredible and therefore presumably would have found Guzman did not, either actually or reasonably, believe Rico attacked him with a knife. Based on the circumstances in this case, the jury could also infer that Guzman, on learning about the beating Rico inflicted on his father, intended to confront Rico with a show of force (i.e., his .38-caliber revolver) and prevail in that confrontation by preempting any aggressive action taken by Rico (e.g., by shooting Rico before he actually or reasonably believed in any need to defend himself).
Furthermore, the physical evidence of Rico's wounds, as Cohen testified, was inconsistent with Guzman's testimony describing the altercation and Guzman failed to rebut that testimony. The fact Guzman continued to shoot Rico after one or two shots, including two shots in his back at close range, strongly weighs against Guzman's claim that he actually believed in the need to defend himself. The evidence also shows Guzman fled after the shooting and discarded his gun. Although Guzman testified he fled because of his fear of what Rico's family might do to him, the jury could very well have inferred he instead fled and discarded his gun because of his consciousness of guilt. Also, one witness testified that as Guzman drove away, he slowed down, looked back, laughed, and then sped up. Two days later during a traffic stop, Guzman falsely identified himself to police, supporting an inference that he was conscious of his guilt and attempting to avoid apprehension. Given that strong evidence of his guilt of second degree murder, we conclude it is highly unlikely the jury would have found Guzman acted in the actual, but unreasonable, belief in the need to defend himself when he shot and killed Rico. Accordingly, Guzman has not carried his burden on appeal to show it is reasonably probable he would have received a more favorable outcome had the trial court instructed sua sponte on the lesser included offense of voluntary manslaughter based on imperfect self-defense. (Breverman, supra, 19 Cal.4th at p. 178; Watson, supra, 46 Cal.2d at p. 836.)
VI
Cumulative Error
Guzman contends the trial court's errors that he asserted as discussed above, together with certain additional errors, had a cumulative prejudicial effect, requiring reversal of the judgment. The additional errors he asserts involve purported improper questioning of witnesses by the prosecutor: (1) by erroneously understating Rico's height by two inches; (2) regarding whether Rico had ever been arrested for or convicted of stabbing a person; and (3) regarding Guzman's prior altercation with a police officer. Guzman also additionally asserts the trial court erred by sustaining the prosecutor's objection to his defense counsel's closing argument that the law permits a defendant to kill a person who attacks him or her with a weapon, such as a gun, bat, or knife.
We concluded above the trial court erred only by excluding evidence of the reputation of Rico's family for violence and that error was harmless under the Watson standard of prejudice. In any event, assuming arguendo the trial court and prosecutor erred as asserted by Guzman above, we nevertheless conclude it is not reasonably probable he would have received a more favorable verdict absent those errors. (Watson, supra, 46 Cal.2d at p. 836.) Alternatively stated, considering the cumulative impact of those purported errors, we nevertheless conclude Guzman's guilt or innocence was fairly adjudicated. (People v. Hill (1998) 17 Cal.4th 800, 844.) Guzman "was entitled to a fair trial, but not a perfect one. [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1009.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., HALLER, J.