Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 06F01018, 06F06422, 05F07398
HULL, J.
In case No. 06F01018, a jury convicted defendant Tyrone Elijah Hopkins of assault with a firearm (Pen. Code, § 245, subd. (a)(2)--count one; further undesignated statutory references are to the Penal Code); and being a felon in possession of a firearm (§ 12021, subd. (a)(1)--count two). The jury also found defendant personally used a firearm (§§ 1203.6, subd. (a)(1), 12022.5, subd. (a)(1)) and personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). Defendant, sentenced simultaneously in case Nos. 05F07398 and 06F06422--which sentences he does not appeal--was ordered to serve an aggregate term of 12 years in state prison.
On appeal, defendant claims (1) prosecutorial misconduct, (2) instructional error, (3) ineffective assistance of counsel, (4) section 654 sentencing error regarding counts one and two of case No. 06F01018, and (5) that CALCRIM No. 220 is unconstitutional. We reject each of defendant’s claims and affirm.
Facts and Proceedings
On January 1, 2006, at approximately 4:00 a.m., defendant went to a local Jack in The Box with friends. There, he approached the victim and asked him where he was from. The victim, said “West Oakland” and walked toward defendant intending to fight him. The victim punched the defendant in the face and the defendant pulled out a gun and shot him. The defendant then fled the scene, taking the gun with him. At the time of the shooting, defendant, known as “Pint,” stood 5’8” tall and weighed 145 pounds. The victim was 6’ tall and weighed 230 pounds.
Defendant was subsequently arrested and charged with assault with a firearm (§ 245, subd. (a)(2)) and being a felon in possession of a firearm (§ 12021, subd. (a)(1)). Defendant now appeals his conviction and sentence in case No. 06F01018.
Discussion
I
Prosecutorial Misconduct
Defendant claims the prosecutor impermissibly lowered the burden of proof and misstated the law during closing argument by repeatedly saying “you don’t bring a gun to a fistfight.” It is defendant’s position that the prosecutor’s repeated use of this phrase during closing argument caused the jury to believe, wrongly, that use of a gun to defend oneself in a fistfight can never be lawful.
“‘A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process.’ [Citations.] ‘Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.’ [Citation.]” (People v. Tafoya (2007) 42 Cal.4th 147, 176 (Tafoya).) As we explain below, defendant’s claim fails for numerous reasons.
A. Defendant failed to preserve the issue for appeal.
“Generally, a claim of prosecutorial misconduct is not reviewable on appeal unless the defendant makes a timely objection and asks the trial court to admonish the jury to disregard the prosecutor’s improper remarks. [Citation.] In the absence of an objection, ‘“the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.”’ [Citation.]” (Tafoya, supra, 42 Cal.4th at p. 176.)
Here, defendant did not object to the remarks made by the prosecutor that he now claims to be misconduct. Because an instruction would have cured any possible misunderstanding of the law regarding self-defense, defendant’s failure to object at trial is fatal to his claim on appeal. (Tafoya, supra, 42 Cal.4th at p. 176.) Indeed, as we discuss below, the court’s instruction on self-defense was an accurate explanation of the law and served to clarify any misunderstanding that may have been created by the prosecutor’s argument. (See, post, at p. 7.)
In any event, defendant’s contention lacks merit.
B. The prosecutor’s statements were not misconduct.
“‘[T]he prosecutor has a wide-ranging right to discuss the case in closing argument. He has the right to fully state his views as to what the evidence shows and to urge whatever conclusions he deems proper.’ [Citation.]” (People v. Panah (2005) 35 Cal.4th 395, 463.) However, “[w]hen a prosecutor’s intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated. Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury. [Citation.]” (Id. at p. 462.)
The crucial issue is not the good faith of the prosecutor, but the potential injury to the defendant. (People v. Clair (1992) 2 Cal.4th 629, 661.) We review the prosecutor’s remarks to determine whether there is a reasonable likelihood that the jury misconstrued or misapplied them. (Id. at p. 663.) Considered in light of this standard of review, defendant’s claim of error fails.
At trial defendant claimed self-defense. In response, the prosecutor argued that the evidence showed defendant started the fight and the defendant’s decision to shoot the victim was an unreasonable response to being hit; hence, defendant was not entitled to claim self-defense.
The prosecutor’s repeated statement “you don’t bring a gun to a fist fight” was simply argument offered to suggest the defendant did not use the gun in self-defense, but instead had the gun with him and provoked the dispute knowing that, as a man of moderate stature, he could use the gun if his eventual adversary was bigger or physically tougher than he was, which, as it turned out, the victim was. The prosecutor did not claim the disputed statement was the law and thus he did not impermissibly lower the state’s burden of proof. Accordingly, there was no misconduct. Nevertheless, any confusion created by the prosecutor’s argument was eliminated by defense counsel and the court.
C. Any confusion regarding the law of self-defense was eliminated by defense counsel and the court.
Even if the prosecutor’s closing argument may have caused the jury to misunderstand the law regarding self-defense, defense counsel effectively addressed the issue in his closing argument: “And his theme of his opening summation was, you don’t bring a gun to a fist fight. And, you know what? There’s nothing in the law that says, you can’t establish self-defense with a gun to defend against fists. There’s nothing in the law that says that. There’s nothing that says fists have to be met with fists, knives with knives, guns with guns. That’s just not the case. It’s the circumstances. It’s the circumstances as they were known and as they were seen to [defendant], what he saw, what he reasonably believed. So there is no standard of, don’t bring a gun to a fist fight. It sounds good.
“Reminds me of that movie, that Indiana Jones, where the two guys are chasing him, and they have the swords, and they’re doing all the sword play, and Indiana Jones takes out a gun and shoots him.
“You can bring a gun to a fist fight, to a knife fight. It depends on the circumstances. [Defendant] should not have had a gun out there. Plain and simple. That’s Count Two, and we’ll get to that. But you can establish self-defense with a gun under the circumstances.”
Parenthetically, defense counsel’s decision to respond to the prosecutor’s closing argument in his own closing argument, rather than raising an objection, was a reasonable tactical decision. Accordingly, we reject defendant’s ineffective assistance of counsel claim on this issue. (People v. Pope (1979) 23 Cal.3d 412, 425 [“[W]here the record shows that counsel’s omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed”].)
Most importantly, the court advised the jurors that they “must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys’ comments or the law conflict with my instructions, you must follow my instructions.”
Then the court instructed the jury on the basic principles of self-defense, including that if defendant knew the victim threatened or harmed others, the jury could consider that information in deciding whether defendant’s conduct and beliefs were reasonable. Thus, the trial court properly instructed the jury with a modified version of CALCRIM No. 3470. (See People v. Garvin (2003) 110 Cal.App.4th 484, 489; see also People v. Holt (1997) 15 Cal.4th 619, 677 [adequacy of jury instructions considered by examining charge as a whole].) We presume the jurors followed the court’s instructions. (People v. Avila (2006) 38 Cal.4th 491, 574.)
In sum, we find defendant failed to preserve this issue for appeal, there was no prosecutorial misconduct, and even if the prosecutor’s argument had confused the jury regarding the law of self-defense, defense counsel’s closing argument and the court’s instructions would have eliminated the confusion. We therefore reject defendant’s claim.
II
Instructional Error
Defendant also contends the court should have included in its instruction on self-defense, the following optional, bracketed language contained within CALCRIM No. 3470: “Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measures against that person.”
Initially, we note that the heading in defendant’s opening brief suggests he will argue the court should have instructed with, and counsel should have requested, CALJIC No. 5.31. However, defendant fails to support that claim with reasoned argument or citations to authority. Rather, defendant argues the court should have included the optional, bracketed language in CALCRIM No. 3470 regarding a prior threat to defendant by the victim. Accordingly, we consider any claim on appeal regarding CALJIC No. 5.31 to be forfeited and instead, consider defendant’s claim that the court should have included the optional language in CALCRIM No. 3470. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as [forfeit]ed”].)
As discussed above, the trial court properly instructed the jury on the law regarding self-defense. (See, ante, at p. 7.) Furthermore, as defendant admits in his opening brief, he did not request this additional language be included in the instruction at trial.
The language defendant now claims should have been included in the instruction on self-defense is not a general principle of law. Rather, it is a “pinpoint instruction” that relates evidence of prior threats or harm to the defendant by the victim or his associates to the specific legal issue of self-defense. (Cf. People v. Rogers (2006) 39 Cal.4th 826, 878 [holding CALJIC No. 8.73 is a pinpoint instruction because it relates the evidence of provocation to the specific legal issue of premeditation and deliberation].) As such, it is a pinpoint instruction, “‘required to be given upon request when there is evidence supportive of the theory.’” (Id. at p. 878, quoting People v. Saille (1991) 54 Cal.3d 1103, 1119.)
Defendant contends the language regarding prior harm to defendant should have been included in the jury instruction because the victim “struck [defendant] before [defendant] shot him.” Defendant misunderstands the basic premise of self-defense, which presumes a defendant harmed the victim in response to an attack. The language defendant now claims should have been included in the jury instructions contemplates a circumstance where a defendant was threatened or harmed by the victim in the past. Here, there was no such evidence. Accordingly, defendant was not entitled to the instruction. It is of no moment that the victim struck first.
We find there was no error; the court properly instructed the jury with a modified version of CALCRIM No. 3470. Accordingly, we also find, contrary to defendant’s claim, that counsel was not ineffective for failing to request this pinpoint instruction. (People v. Jones (1979) 96 Cal.App.3d 820, 827 [Counsel is not required to “advance meritless arguments . . . merely to create a record impregnable to assault for claimed inadequacy of counsel”].)
III
Section 654Defendant also contends we should strike the concurrent sentence he received for his conviction on count two. He argues that because he possessed the gun only to shoot the victim, he cannot be sentenced for both possessing the gun and using the gun. Defendant relies on People v. Venegas (1970) 10 Cal.App.3d 814 (Venegas), to support his claim. Defendant’s reliance on Venegas is misplaced and we reject his claim.
“Whether a violation of section 12021, forbidding persons convicted of felonies from possessing firearms concealable upon the person, constitutes a divisible transaction from the offense in which he employs the weapon depends upon the facts and evidence of each individual case. (People v. Brown (1958) 49 Cal.2d 577, 591.) Thus where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. (People v. Hudgins (1967) 252 Cal.App.2d 174, 184-185, cert. denied 390 U.S. 965 [19 L.Ed.2d 1167]; People v. Moore (1956) 143 Cal.App.2d 333, 342, questioned on other grounds in People v. Keller (1963) 212 Cal.App.2d 210, 221, fn. 3.) On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper where it is the lesser offense. (People v. Burnett (1967) 251 Cal.App.2d 651, 658; cf. In re Grossi (1967) 248 Cal.App.2d 315, 321-322; In re McWhinney (1968) 267 Cal.App.2d 691, 695.)” (Venegas, supra, 10 Cal.App.3d at p. 821.)
In Venegas, the court found the evidence at trial showed “possession only at the time defendant shot [the victim].” (Venegas, supra, 10 Cal.App.3d at p. 821.) The facts here are distinct. Here, there was evidence presented at trial that defendant took the gun from his pocket after the victim punched him in the face. There was also testimony that defendant took the gun with him after he shot the victim. Thus, the evidence established that defendant possessed the gun both before and after he used it, unlike the defendant in Venegas.
Accordingly, the court was not obligated to strike the sentence on count two.
IV
CALCRIM No. 220
Defendant’s final argument is that CALCRIM No. 220 impermissibly reduces the reasonable doubt standard because it does not “inform the jury that lack of evidence is included in the basic definition of reasonable doubt,” and therefore is unconstitutional. After defendant filed his reply brief in this matter, this court decided People v. Guerrero (2007) 155 Cal.App.4th 1264 (Guerrero). In Guerrero, we rejected the very argument defendant raises here: “The ‘Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt . . . .’ (In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 375].) An instruction which misstates the prosecution’s burden to prove every element of the crime beyond a reasonable doubt violates due process. (Victor v. Nebraska (1994) 511 U.S. 1, 5 [127 L.Ed.2d 583, 590] (Victor).)
“In Victor, the [United States] Supreme Court explained the due process standard for evaluating instructions defining reasonable doubt. ‘The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. [Citation.] Indeed, so long as the court instructs the jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt [citation], the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof. [Citation.] Rather, “taken as a whole, the instructions [must] correctly convey the concept of reasonable doubt to the jury.” [Citation.]’ (Victor, supra, 511 U.S. at p. 5 [127 L.Ed.2d at p. 590].)
“In Victor, the [United States] Supreme Court noted that it had found a reasonable doubt instruction to violate due process in only one case. (See Victor, supra, 511 U.S. at p. 5 [127 L.Ed.2d at p. 590], citing Cage v. Louisiana (1990) 498 U.S. 39 [112 L.Ed.2d 339] (per curiam).) In Cage, the jury was instructed that reasonable doubt ‘“must be such doubt as would give rise to a grave uncertainty . . . [i]t is an actual substantial doubt”’ and its negation involves a ‘“moral certainty.”’ (Cage, supra, 498 U.S. at p. 40 [112 L.Ed.2d at pp. 341–342].) Instructing the jury with these phrases violated due process by suggesting to the jurors ‘a higher degree of doubt than is required for acquittal under the reasonable-doubt standard.’ (Id. at p. 41 [112 L.Ed.2d at p. 342].)
“Unlike the instruction in Cage, CALCRIM No. 220 does not suggest an impermissible definition of reasonable doubt to the jury. The instruction defines reasonable doubt as the absence of an abiding conviction in the truth of the charges. ‘An instruction cast in terms of an abiding conviction as to guilt, . . . correctly states the government’s burden of proof.’ (Victor, supra, 511 U.S. at pp. 14–15 [127 L.Ed.2d at p. 596].) The instruction neither lowers the prosecution’s standard of proof nor raises the amount of doubt the jury must have in order to acquit a defendant.
“Contrary to defendant’s suggestion, CALCRIM No. 220 instructs the jury to acquit in the absence of evidence. In addressing defendant’s claim, we consider whether a ‘reasonable juror would apply the instruction in the manner suggested by defendant.’ (People v. Wade (1995) 39 Cal.App.4th 1487, 1493.) The jury is instructed to consider only the evidence, and to acquit unless the evidence proves defendant’s guilt beyond a reasonable doubt. If the government presents no evidence, then proof beyond a reasonable doubt is lacking, and a reasonable juror applying this instruction would acquit the defendant.
“Due process requires nothing more. CALCRIM No. 220 does not violate due process.” (Guerrero, supra, 155 Cal.App.4th at pp. 1267-1269.)
We agree with Guerrero. There was no error.
Disposition
The judgment is affirmed.
We concur: SCOTLAND, P.J., CANTIL-SAKAUYE, J.