People v. Lopez

Full title: THE PEOPLE, Plaintiff and Respondent, v. RAYMOND EDUARDO LOPEZ, Defendant…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

Date published: Aug 15, 2011

No. H034631 (Cal. Ct. App. Aug. 15, 2011)

Opinion

H034631

08-15-2011

THE PEOPLE, Plaintiff and Respondent, v. RAYMOND EDUARDO LOPEZ, Defendant and Appellant.

Mihara, J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Santa Clara County Super. Ct. No. CC783063)

Defendant Raymond Eduardo Lopez was convicted by jury trial of first degree murder (Pen. Code, §§ 187, 189), and the jury found true that he had personally used a deadly or dangerous weapon (Pen. Code, § 12022, subd. (b)(1)) in the commission of the murder. On appeal, he (1) challenges the sufficiency of the evidence of premeditation and deliberation, (2) claims that the court erred in responding to jury inquiries regarding premeditation and deliberation, (3) asserts that the prosecutor committed prejudicial misconduct, and (4) maintains that the trial court made numerous prejudicial instructional errors. Although we conclude that the trial court made two instructional errors, we conclude that defendant was not prejudiced by these errors individually or cumulatively. Therefore, we affirm the judgment.

I. Facts

In October 2007, Rosa Townes and Ryan Townes were married, but they had separated.¹ Rosa and Eric Diaz were friends, and they had been "get[ting] high together" on methamphetamine for a couple of months. They were not romantically involved. Ryan had met Diaz about three times and "didn't like him." The two men never had any arguments, but Rosa had told Diaz that Ryan did not like it that Rosa was associating with Diaz. Ryan knew that Rosa visited Diaz at his apartment, but Ryan did not know which apartment was Diaz's apartment. Ryan had seen Diaz's Ford Explorer, and Diaz believed that Ryan had slashed one of the tires on Diaz's Explorer on the evening of October 2, 2007. On the afternoon of October 3, 2007, Rosa accused Ryan of having slashed Diaz's tire. Ryan denied having done so. At about 10:00 p.m. that evening, Rosa told Ryan that she would not go home with him that night. Ryan was "hurt." He called Rosa repeatedly after that, but she did not answer her phone.

1 Because they share a last name, we will refer to them by their first names.

At about 11:00 p.m. on October 3, 2007, Diaz picked Rosa up from the motel where she was staying and took her in his Explorer to his apartment building. They went into Diaz's second-floor apartment and used methamphetamine. After midnight, Ryan telephoned Rosa and said he knew where she was and he was outside. Ryan said he wanted to "clear the air" with Diaz about the slashing of the tire on Diaz's Explorer. Rosa and Ryan telephoned and texted back and forth, arguing. Rosa told Diaz that Ryan was outside the apartment building. Rosa had previously told Diaz that Ryan had beaten her a number of times, "nearly killing her sometimes." Diaz wanted someone to pick up Rosa and take her home. He figured that Ryan would leave if Rosa left.

Diaz tried to call his cousin defendant on his cell phone.² Diaz also sent a text to defendant that read: "Cousin, I need help ASAP, no joke." Rosa had met defendant several times at Diaz's apartment. Eventually, Diaz reached defendant by telephone and sought his assistance. Defendant told Diaz to "relax" and "wait it out." Diaz sent defendant additional texts and continued to telephone him. "I told him someone was out there and we needed to get out of there, that he might have a weapon, I'm not sure. I was scared, and my daughter was there, and I didn't want anything to happen to me or my daughter or Rosa." Diaz's three-year-old daughter was in the apartment with Diaz and Rosa. Diaz told defendant that the man outside "could be dangerous" and that he was afraid that this person would "hurt" him. The reason Diaz thought Ryan might have a weapon was because he believed Ryan had slashed his tire.

2 Diaz also called several other people, but he was not able to reach any of them.

A couple of Diaz's phone calls to defendant's cell phone were answered by Diaz's other cousin Vincent Lopez.³ Diaz told Vincent the same thing he had told defendant, and Vincent also told him to "relax" and "wait it out." Vincent expressed concern that this "someone" might have a gun or a knife. Because by now Diaz could hear Ryan yelling outside and knocking on doors downstairs, he told either defendant or Vincent that "a dude was outside acting crazy." Diaz told Vincent that the man outside had slashed the tire on his vehicle and was a "crazy motherfucker." He asked Vincent to come and pick up Rosa. Diaz never described Ryan to either of his cousins, and neither of his cousins had ever met Ryan.

3 Because there are multiple individuals named Lopez involved in this case, we will refer to them by their first names.

Meanwhile, Rosa texted Ryan that he "needed to leave" because Diaz had "called his cousin" and "I was scared for him." Ryan responded that he "wasn't going anywhere." They continued to text back and forth for about an hour. She falsely told him she had called the police, but he did not leave. At some point, Rosa heard Ryan yelling outside for about 10 minutes. Shortly after 2:00 a.m., Ryan knocked repeatedly on the door of one of the downstairs apartments in the building. The resident was awakened, and she came to the door. Ryan asked "if Rhonda was there." She told him "no one is here by that name." Ryan said: "Thank you, I'm sorry to bother you." He did not sound angry, and he was not speaking loudly.

Two hours after Diaz's first text to defendant, defendant texted Diaz "we're going to be on our way soon . . . ." Vincent also texted Diaz: "We are going to try and do something right now." Diaz texted Rosa that his "cousins were on the[ir] way." Rosa heard Ryan's yelling stop. About 10 to 15 minutes later, Rosa heard Ryan loudly say "whoa," followed by sounds of "a fight" outside. Rosa looked out the window and saw two males and a female "around" Ryan. The female was standing to the side, while one male was in front of Ryan and the other was behind him. "It looked like they were punching him." Ryan was "[t]rying to fight back." Rosa opened the apartment door and started screaming. She saw the two males and the female leaving the scene, and one of the males looked up at her. Rosa recognized him as defendant.

Rosa ran to Ryan, who said "baby, I got stabbed. They stabbed me." Rosa ran back toward Diaz's apartment to get her phone. On her way, she saw a knife lying on the ground next to the tire of Diaz's Explorer. Rosa picked up the knife because she thought it would "help" to "get justice" for Ryan. She then retrieved her phone and returned to Ryan. Rosa dropped the knife after she returned to Ryan because she needed her hands free to call 911.⁴ Diaz came downstairs and moved his Explorer before the police arrived because he did not want the police to see his Explorer near Ryan.

4 At trial, Diaz testified that he saw Rosa pick up an object next to Ryan's body and toss it into the bushes.

When the police arrived, Ryan was bloody and unresponsive. His body was lying on some bushes. A police officer attempted CPR, but Ryan did not respond. A closed knife was clipped to the inside of Ryan's right front pants pocket. There was no blood on the knife. A large knife was found on the ground a few feet from Ryan's body. There was no visible blood on this knife.

Diaz told the police that "it was [defendant and Vincent] there." Defendant was arrested on the evening of October 4. Vincent, who is defendant's uncle, was in the same car with defendant when the police stopped the car. When the police asked for his name, defendant provided his name and said "you're here for me."⁵ Defendant had a bandaged wound on one hand. The bandage covered a cut on his thumb. He had no other injuries.

5 There was also a warrant for defendant's arrest for another crime.

An autopsy determined that Ryan died from stab wounds to his head, neck, and torso. He had 20 "sharp force injuries," which included both stab wounds and slash wounds. Stab wounds are deeper than slash wounds. Ryan had suffered a stab wound to the back of his neck, a deep stab wound to his upper right chest, which penetrated a large artery and a lung, 13 stab wounds to his back, and a stab wound to the back of his upper right arm. Half of the stab wounds to his back had penetrated the chest cavity and entered his lungs. Each of these stab wounds was potentially fatal. There were also multiple slash wounds on his face and head, and slash wounds to his right hand. Ryan was under the influence of methamphetamine at the time of his death. He was five feet, seven inches tall, and he weighed 193 pounds. Defendant was six feet, one inch tall and weighed 225 pounds.

Defendant spoke to the police 10 days later. He told them that he was at Diaz's apartment building when Ryan was killed, but he did not see the killing. He heard the screams and came upon a man and a woman fleeing the scene, so he too ran. Defendant told the police that Diaz had told him that Ryan "had a gun."⁶

6 At trial, defendant admitted that his statements to the police were lies.

II. Procedural Background

Defendant was charged with Ryan's murder. The only defense witnesses at trial were defendant and an expert on the effects of methamphetamine on human behavior.

The defense expert testified that a person under the influence of methamphetamine had an increased "propensity for violence" and would be "highly unpredictable." He also testified that "methamphetamine motivated or influenced violence . . . typically appears to be unprovoked." "[T]hey may interpret [something] as offensive or threatening in some way . . . ." Such a person would be "primed for fighting." However, he testified on cross-examination that such a person would also be "fearful" and "more prone to run away, depending on the circumstances."

Defendant testified at trial and admitted that he had stabbed Ryan. He asserted that he had taken methamphetamine earlier that day. He testified that he received "urgent" messages over a couple of hours from Diaz, who sounded "scared." Defendant was aware that Diaz, his daughter, and Rosa were in Diaz's apartment. Rosa had told defendant previously that her husband had slashed a tire on Diaz's vehicle. Defendant assumed that a knife would have been used to slash the tire. "If he had a knife to slash the tire, he's not going to throw it away after he slashes the tire." Diaz told defendant that Rosa's husband was outside, and he needed someone to pick up Rosa. Defendant testified that Diaz also told him on the phone "he's going to kill me, he's right outside my door." He also claimed that Diaz had said on the phone: "he's crazy, he's out there, he's going to kill me." Defendant claimed that he was spurred to action by a final text from Diaz, which he claimed was the text which read: "Cousin, I need help ASAP, no joke." Defendant asserted that he was mainly concerned about the safety of Diaz's daughter. He thought Ryan might have a weapon because "I don't think you're going to go to an apartment looking for your wife with no weapon . . . ."

When he decided to go to Diaz's apartment building, defendant brought two knives with him. He brought these knives because "it seemed like the right thing to do at the time." One of the knives was his own, and the other knife was someone else's knife that he grabbed "on the way out the door" to go to Diaz's apartment building. Defendant admitted that he frequently carried a knife, and that he did so so that "[i]f I had it and a situation occurred, I would probably use it if I had to." The second knife he grabbed was a large, double bladed knife that was bigger than a dagger. A woman gave him a ride over to Diaz's apartment building. Although defendant did not deny that other people were outside Diaz's apartment building at the time of the stabbing, he refused to identify any of them. ⁷ Defendant denied that Vincent was with him that evening, and he denied that Diaz had spoken to Vincent on defendant's cell phone that evening.

7 Defendant testified that, because he was in jail, he would be labeled a "snitch" and killed if he identified anyone. After defendant refused to identify the people who were present when he stabbed Ryan, he was held in contempt of court. Defendant also refused to say who had given him a ride to Diaz's apartment complex and was held in contempt. Defendant testified that the woman who gave him a ride was not one of the people present when he killed Ryan. And he seemed to testify that there were two people present when he killed Ryan. "Q. [by the prosecutor]: So it's a total of three people you're not going to identify? [¶] A. Yes." Defendant subsequently refused to identify the person who had picked him up and driven him away from the scene after the killing. He was held in contempt for this too. After the jury returned its verdict, the court imposed a five-day suspended jail sentence for the contempts.

When defendant arrived at Diaz's apartment building, he walked up to within a few feet of Ryan before he saw him. Defendant had never met Ryan, and he initially had no idea whether this man was Rosa's husband. According to defendant, when Ryan saw defendant, he asked "do you know Eric?" Defendant said "no." Ryan then asked "do you know Rosa?" Defendant again said "no." At that point, defendant assumed that Ryan was Rosa's estranged husband and that Ryan was "very mad." Ryan was standing sideways to defendant, and defendant could not see Ryan's right hand. Defendant reached into his pocket and unfolded his folding knife inside his pocket. He kept his hand on the knife. Defendant positioned himself so that he was between Ryan and the apartment building, and his back was to the apartment building. He turned and faced Ryan, told Ryan "fucker, just leave," and "smirk[ed]." Ryan refused to leave. Defendant said "you need to immediately leave." Ryan was an "arm's length" from defendant. Defendant continued to tell Ryan to leave, and Ryan continued to refuse to leave.

Ryan took a step toward defendant, which defendant took as a "challenge." At some point, Ryan started to pull a knife out of his sweatshirt's front pocket. Ryan "didn't have [the knife] all the way out. He was still pulling it out." Defendant could see "[a] couple inches" of the blade, "[e]nough to know that it's a knife." When defendant was shown the large knife that Rosa had found, he did not claim that Ryan had possessed that knife. Instead, he claimed that he never saw "the full knife." Defendant immediately pulled out his knife and "started stabbing him." "As soon as I seen the knife it just happened. There was no time to think." Defendant started by stabbing Ryan in chest. "Once I started stabbing him I just kept going, pretty much." All of the stabbing occurred within a 30-second period. Defendant paid no attention to what happened to the knife he had seen Ryan begin to remove from his pocket. Defendant thought: "It was either him or me." When he was done stabbing Ryan, defendant "turned and ran." The large second knife that defendant had in his pocket fell out of his pocket as he was running away. Defendant denied that this second knife was the one Rosa found.

The court instructed the jury prior to arguments. Defendant's trial counsel did not request any additional instructions or ask the court to modify any instructions that it gave. The jury deliberated for four days before finding defendant guilty of first degree murder and finding the personal use allegation true. The trial court committed defendant to state prison to serve a term of 25 years to life consecutive to a one-year determinate term. Defendant timely filed a notice of appeal.

III. Discussion

A. Premeditation and Deliberation

"Our task in deciding a challenge to the sufficiency of the evidence is a well-established one. '[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] In cases in which the People rely primarily on circumstantial evidence, the standard of review is the same. [Citations.]' [Citation.] ' "An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise. [Citations.]" ' [Citation.] [¶] . . . 'A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] "Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance. [Citations.]' [Citation.] ' "Premeditation and deliberation can occur in a brief interval. 'The test is not time, but reflection. "Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly." ' " [Citation.]' [Citations.] [¶] People v. Anderson (1968) 70 Cal.2d 15, 73 Cal.Rptr. 550, 447 P.2d 942 (Anderson)discusses three types of evidence commonly shown in cases of premeditated murder: planning activity, preexisting motive, and manner of killing. [Citation.] Drawing on these three categories of evidence, Anderson provided one framework for reviewing the sufficiency of the evidence supporting findings of premeditation and deliberation. In so doing, Anderson's goal 'was to aid reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.' [Citation.] But, as we have often observed, ' Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation.' " (People v. Solomon (2010) 49 Cal.4th 792, 811-812.)

Here, the jury's verdict was supported by substantial evidence of "planning activity" and of a "manner of killing" that were highly indicative of a deliberate and premeditated murder.

Defendant did not simply encounter Ryan and use a knife he just happened to have available on his person to kill him. First, defendant deliberated for more than two hours before deciding to respond to Diaz's request for assistance. Next, after finally deciding to respond, defendant arranged for a ride over to Diaz's apartment building and, even though he already had one knife on his person, took a second larger knife to aid in his encounter. Then, almost immediately after coming upon Ryan, defendant unfolded his knife in his pocket so that it would be ready, and kept the knife in his hand and concealed from sight. With his knife at the ready, defendant positioned himself so that his back was protected by the apartment building before launching his attack on Ryan. In addition, the jury could have reasonably concluded that defendant had also arranged that another man would be present to provide him with backup. All of this evidence reflected that defendant had planned to stab Ryan and placed himself in the most advantageous position available before launching his attack. The fact that defendant suffered no wounds other than a small cut on his hand strongly supported a conclusion that his attack took Ryan so unaware that he had no opportunity to defend himself.

The manner in which defendant killed Ryan was also indicative of premeditation and deliberation. A stab wound to the chest is likely to be fatal, but defendant did not content himself with simply stabbing Ryan once in the chest. He continued to stab him in the back, both in the neck and the torso, vital areas of Ryan's body. Defendant also inflicted several slashes on Ryan's face, wounds which the jury could have reasonably inferred could not have been inflicted unless Ryan had already been rendered defenseless.

The sheer number of potentially fatal stab wounds reflected that defendant had made a deliberate decision to ensure that Ryan died.

We reject defendant's challenge to the sufficiency of the evidence of premeditation and deliberation.

B. Responses to Jury Inquiries

Defendant contends that the trial court's responses to jury inquiries regarding premeditation and deliberation were "inadequate and unbalanced." He contends that the jury's questions reflected that it was struggling with the distinction between premeditation and deliberation, and the court's responses erroneously "conflated" these two independent requirements.

1. Background

At the end of the trial, the court instructed the jury with CALCRIM No. 521 on what was required to prove first degree murder. "If you decide the defendant committed murder, you must decide whether it is murder in the first degree or murder in the second degree. [¶] The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. [¶] The defendant acted with premeditation if he decided to kill before commission of the act that caused death. [¶] The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate or premeditated. The time required for deliberation and premeditation may vary from person to person and according to the circumstance. A decision to kill made rashly and impulsively without careful consideration is not deliberate and premeditated. [¶] On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection. The length of time alone does not determine it. [¶] All other murders are second degree murders."

On the jury's second day of deliberations, the jury submitted the following inquiry: "521 Murder: Degrees clarification [¶] 1 Premeditation - do we need to determine & agree at what time the premeditation occurred? [¶] 2 Would you please clarify premeditation further, i.e. via an example OR if 'the test is of the extent of the reflection' - is 1 or 2 seconds adequate?" "521" refers to CALCRIM No. 521, the jury instruction on first degree murder. The judge responded in writing: "In answer to Question 1, you do not need to determine and agree at what time the premeditation occurred. [¶] With respect to Question 2, I am unable to give you an example or further clarify the extent of reflection required. I would note that the third paragraph of Instruction 521 appears to answer your question."

On the jury's third day of deliberations, the jury submitted another inquiry to the judge. "1 Can a decision to kill be NOT pre-meditated? (besides in self defense or imperfect self defense)." The next morning, the judge provided the jury with a lengthy written response which began: "Hopefully the following additional instructions will be helpful to you." The trial court's "additional instructions" were: (1) CALJIC No. 8.11, which defines malice; (2) CALJIC No. 8.20, which defines first degree murder; and (3) CALJIC No. 8.30, an instruction that, where "the evidence is insufficient to prove deliberation and premeditation," a murder is "[m]urder of the second degree." Later that day, the jury asked for a read back of defendant's testimony. The jury returned its verdict the next day.

2. Analysis

Penal Code section 1138 provides: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called." The trial court has a "duty to clear up any instructional confusion expressed by the jury." (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212; People v. Moore (1996) 44 Cal.App.4th 1323, 1331 [court must "help the jury understand the legal principles it is asked to apply"].)

"To perform their job properly and fairly, jurors must understand the legal principles they are charged with applying. It is the trial judge's function to facilitate such an understanding by any available means. The mere recitation of technically correct but arcane legal precepts does precious little to insure that jurors can apply the law to a given set of facts. A jury's request for reinstruction or clarification should alert the trial judge that the jury has focused on what it believes are the critical issues in the case. The judge must give these inquiries serious consideration. Why has the jury focused on this issue? Does it indicate the jurors by-and-large understand the applicable law or perhaps it suggests a source of confusion? If confusion is indicated, is it simply unfamiliarity with legal terms or is it more basically a misunderstanding of an important legal concept?" (People v. Thompkins (1987) 195 Cal.App.3d 244, 250.) "It is hardly preferable for a judge to merely repeat for a jury the text of an instruction it has already indicated it doesn't understand. We are convinced both jurors and the justice system will be well served in the vast majority of cases if the trial judge thoughtfully considers the jury's inquiry, clarifies it if necessary, studies the applicable legal principles, and responds to the jury in as simple and direct a manner as possible." (Id. at p. 253.)

In People v. Beardslee (1991) 53 Cal.3d 68 (Beardslee), a jury inquired about the definition of premeditation and deliberation, and the court told the jury that it would not explain any of the jury instructions. On appeal, the defendant claimed that the trial court had violated Penal Code section 1138. (Beardslee, at pp. 96-97.) The California Supreme Court held that the court's response was erroneous. "The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. . . . But a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given." (Beardslee, at p. 97, first italics added, second italics in original.) Nevertheless, the court found that the error was harmless because any ambiguity in the instructions would have favored rather than prejudiced defendant, and it was mere "speculation" that the court's response might have discouraged the jury from asking further questions. (Beardslee at pp. 97-98.)

The trial court's responses to the jury's inquiries did not violate Penal Code section 1138. The trial court could have reasonably concluded that any direct response to the jury's initial inquiry requesting "an example" and asking "is 1 or 2 seconds adequate" would have improperly invaded the jury's province. The court properly referred the jury back to CALCRIM No. 521, which directly addressed this issue. Even if that response was inadequate, the court gave a much more detailed response to the jury's second inquiry. This time, having apparently concluded that the jury was having difficulty with the language of CALCRIM No. 521, the court decided to supply the jury with the alternative language used in CALJIC No. 8.20, in hopes that this language would further illuminate the concept for the jury. The fact that the jury made no further inquiries reflects that the court's detailed response to its second inquiry was satisfactory.

Defendant claims that the court's response to the jury's first inquiry should have been to "refer[] to the requirement of deliberation and [tell the jury that] one or two seconds is only adequate if deliberation is shown." We disagree. First, our review is for abuse of discretion. The trial court was responding to an inquiry regarding the time necessary for premeditation. It could have reasonably determined that a response focused on deliberation would not be appropriate. Instead, the trial court reasonably concluded that the jury should be referred back to the applicable jury instruction, CALCRIM No. 521, which fully addressed this issue.

Defendant maintains that the court's response to the jury's second inquiry should have been to tell the jury that "a decision to kill may not be sufficient if premeditation and deliberation are not shown."⁸ Both CALCRIM No. 521 and CALJIC No. 8.20 inform the jury that a decision to kill is not sufficient and that both premeditation and deliberation must be proved. (CALCRIM No. 521 ["A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated"]; CALJIC No. 8.20 ["a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation"].) Since the trial court's initial reference back to CALCRIM No. 521 in response to the jury's first inquiry and its subsequent instruction to the jury with CALJIC No. 8.20 in response to the jury's second inquiry conveyed precisely this concept, defendant's contention lacks substance.

8 Defendant also argues that the jury was "never reminded deliberation is a distinct requirement." Not so. Both CALCRIM No. 521 and CALJIC No. 8.20 set out deliberation as a distinct requirement separate from premeditation. By referring the jury back to CALCRIM No. 521 and instructing the jury with CALJIC No. 8.20, the court repeatedly "reminded" the jury that "deliberation is a distinct requirement."

Although defendant repeatedly complains without elaboration that these instructions "conflated and confused the separate concepts of premeditation and deliberation," he does not directly attack either CALCRIM No. 521 or CALJIC No. 8.20 and does not present any argument that either of these instructions is constitutionally deficient. Appellate courts may disregard assertions which are not supported by adequate argument but merely suggested in a brief. (People v. Gordon (1990) 50 Cal.3d 1223, 1244 fn. 3, overruled on another point in People v. Edwards (1991) 54 Cal.3d 787, 835.)

The trial court did not abuse its discretion in responding the jury's inquiries.

C. Evidence Code Section 1103 Evidence

Defendant claims that the trial court erred in admitting a "raft of violent character evidence" against him. He asserts that the court abused its discretion under Evidence Code section 352 and violated his right to due process.

1. Background

In its trial brief, the prosecution noted that it intended to impeach defendant with evidence that he had committed an aggravated assault (Pen. Code, § 245, subd. (a)), dissuaded a witness (Pen. Code, § 136.1), and committed arson (Pen. Code, § 451, subd. (d)). The prosecution also pointed out that, if defendant introduced character evidence regarding Ryan's propensity for violence, the prosecution should be permitted to introduce such evidence as to defendant under Evidence Code section 1103.⁹ The evidence that the prosecution sought to introduce was the same conduct that it sought to impeach defendant with: the assault, dissuasion, and arson.

9 Evidence Code section 1103 provides, in relevant part: "(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character. [¶] (2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1). [¶] (b) In a criminal action, evidence of the defendant's character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a)." (Evid. Code, § 1103, subds. (a) & (b).)

During in limine discussions, defendant's trial counsel argued that the evidence he intended to introduce would not be Evidence Code section 1103 evidence but instead Evidence Code section 1101, subdivision (b) evidence, which would not permit the prosecution to introduce character evidence regarding defendant. He also asserted that admission of character evidence regarding defendant would involve "a great deal of prejudiciality. Clearly, the court has to decide under 352, does it come in, is the probative value outweighing it." The court found that the evidence defendant intended to introduce was Evidence Code section 1103 evidence. It proceeded to address defendant's Evidence Code section 352 contention. The court agreed that the "gang aspects" of defendant's prior criminal conduct were "very prejudicial," and it excluded any "gang evidence." Otherwise, the court found "that the probative value of the evidence outweighs the prejudice and time consumption and future issues." The court also tentatively ruled that defendant's Penal Code section 136.1 (witness dissuasion) violation would be admissible to impeach him if he testified.

Before testimony began, the court instructed the jury: "From time to time certain evidence may be admitted for a limited purpose. At the time this evidence is admitted, I'll try to instruct you on what purpose you may consider it. It may not be considered for any other purpose other than its limited purpose."

In his opening statement, defendant's trial counsel mentioned the Evidence Code section 1103 evidence he intended to present. "You're going to hear evidence in this case that Ryan Townes was extremely abusive towards Rosa Townes, his wife. He threatened her, he threatened to kill her by slitting her throat, he threatened her -- there is a specific instance observed by a police officer in part, 90 days to the day before this homicide occurred when he was being extremely forceful with her, and there will be, I believe, testimony to show that he was trying to get a knife at that time in a parking lot on San Carlos near Meridian where there is a Safeway and McDonald's -- a very open, public place in broad daylight, this was happening. [¶] I think there will be evidence that Mr. Townes was an extremely jealous person with respect to Rosa Townes, and that drove him to extreme anger, and extreme almost in the sense of paranoia. . . . [H]e would follow her around even when they were separated, even after he had been ordered not to have contact with her by the court because he had been accused of a domestic violence . . . ." Defendant's trial counsel asserted that the evidence would show that Diaz "was aware of Mr. Townes' violent proclivities with respect to Rosa" and "communicated to [defendant]" this information.

In his cross-examination of Rosa, defendant's trial counsel adduced evidence of Ryan's prior violence against Rosa. One incident took place on the day before the killing when Ryan tried to force Rosa into a car and tried to take her cell phone. Rosa admitted that this was a "common thing" due to the fact that Ryan was "very, very jealous" since they had separated. Another incident had taken place three months earlier, in July 2007. They had arranged to meet at a public location so that their children could visit with each other. A public location was selected because Rosa was "afraid" of Ryan due to the fact that he "had been very violent towards [her], [and] he had beaten [her] up on many occasions." Defendant's trial counsel elicited testimony from Rosa that Ryan had "an interest in knives" and had "threatened [her] with a knife during [their] relationship." On this occasion, Ryan tried to push Rosa into a van, and he pushed Rosa up against the van. He also demanded her cell phone and reached toward a folding knife. After this incident, Rosa told the police that Ryan "had an explosive temper."¹⁰ Ryan had previously punched, kicked, and strangled her nearly to unconsciousness. He had also twisted her arms and used a knife to intimidate her. Rosa also testified that she did not want Ryan to come to Diaz's apartment on the night of the killing because Ryan "can get really angry, has a bad temper." Ryan was "quite upset" about Rosa's accusation earlier that day that he had slashed the tire of Diaz's vehicle. Rosa was afraid to leave Diaz's apartment because Ryan would see where she was located and would engage in a "confrontation" with Diaz.

10 Ryan was arrested for domestic violence for this incident.

After this testimony, the prosecutor asked the court to make a finding that the defense had introduced "1103 character evidence," and the court so found. On redirect examination, Rosa testified that Ryan did not have a reputation for being violent. She also testified that she was afraid when Diaz said he was calling defendant because defendant had previously said that he was "wanted for fugitive watch." She thought "anybody really wanted by fugitive watch obviously did something wrong."¹¹ On recross, defendant's trial counsel elicited Rosa's testimony that she kept Ryan's "abuse" of her "a secret" and "didn't tell anybody about it."

11 No Evidence Code section 352 objection was interposed to this testimony.

The prosecutor subsequently submitted "proposed language for the limiting instruction," and defendant's trial counsel noted: "I saw it. I think it's fine." At a hearing outside the presence of the jury, the court informed counsel that it had itself drafted an admonition regarding the Evidence Code section 1103 evidence. Both the prosecutor and defendant's trial counsel agreed that the court's admonition was fine and better than the prosecutor's proposed admonition.

Before Crystal Lopez, the first witness to testify about defendant's prior violent conduct, testified, the trial court read the admonition to the jury. "Ladies and gentlemen, this witness, as well as Officer Meeker, who I anticipate will testify later today, may introduce evidence for the limited purpose of showing that the defendant engaged in conduct involving violence or threats of violence on one or more occasions other than that charged in this case. [¶] If you find the defendant was violent or threatened violence on a prior occasion, you may but are not required to infer that the defendant has a trait of character for violence. [¶] If you find the defendant has that trait of character, you may but you are not required to infer that he acted in conformity with that trait of character at the time of the crime for which he is accused in this trial; however, if you find the defendant has such a trait of character, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime in this case. [¶] The weight and significance of the evidence, if any, are for you to decide. For the limited purpose for which you may consider this character evidence, you must weight it the same way you would weigh all other evidence in the case. Unless you are otherwise instructed, you must not consider this evidence for any other purpose."

Crystal testified that she was defendant's former girlfriend. In May 2007, she was in a car containing defendant, a man named "Roach," and two other females. Roach was driving the car, which belonged to one of the females, and defendant was in the backseat. A car containing two males began directing "mean faces and gestures" toward their car. Defendant became "upset." Roach asked what he "should do." Defendant told Roach to "pull over," but he did not. Defendant pointed out that someone in the other car had a knife. The other car followed their car, and defendant kept telling Roach to pull over. The other car "rammed" the back of their car, and their car stopped. The driver of the other car got out and tried to stab defendant through the car window. He failed to make any contact with defendant. Defendant got out of the car and chased the other man. Roach also exited the car and ran toward the other car. Crystal saw the four men fighting. Roach and one of the other men disengaged, but defendant continued fighting with one of the men. When defendant and Roach returned to the car, they were both bleeding. Roach's fingers were bleeding, and defendant's thigh was bleeding. Roach said "he got one of the guys really good," and defendant told him to "shut up." Later that day, defendant told Crystal and the other two females to "lie to the police" about the incident. He told them to say that their car had been stolen. Crystal was scared that defendant would have someone hurt them if they did not obey this command. Defendant had previously told Crystal that "if anything happened I better not tell the cops or better not snitch to anybody" because "snitches end up in ditches." She understood this to mean that she would be killed if she spoke to the police. Defendant had also threatened to kill her grandmother if she "snitched." Crystal and the other two females originally told the police that the car had been stolen, as they had been instructed to do. Crystal had seen defendant with a knife before, but she had not previously seen him act violently. San Jose Police Officer Brian Meeker testified that he made contact with the two men who had fought with defendant and Roach. The passenger in the car was bleeding profusely from more than 10 stab wounds to his back, chest, abdomen, and neck. Defendant's trial counsel did not interpose any objections to any portion of the testimony of Crystal or Meeker.

The following day, before correctional officer Mario Rogers testified, the court told the jury: "Ladies and gentlemen, the instruction I gave you yesterday with respect to two of the witnesses also applies today for the witness and possibly another witness." The court then reread the admonition it had given the previous day. Rogers testified that, in March 2008, he saw an inmate trustee named Michael Alfaro struck in the face by someone Rogers could not see. This punch was followed immediately by defendant and Julio Ledesma attacking Alfaro.¹² Defendant punched and kicked Alfaro. Robert Candelaria joined the fight. Rogers ordered the men to stop, but defendant did not stop. Alfaro was knocked to the ground, and the men continued to assault him. Defendant repeatedly punched Alfaro. Eventually, the assailants were pepper sprayed, and they ran to their cells. Alfaro suffered numerous injuries to his face and a cut near his ear.

12 The parties stipulated that Ledesma had pleaded guilty to aggravated assault for his assault on Alfaro.

San Jose Police Officer Julie Marin was the next witness. Before she testified, the court reminded the jury that "some of the testimony of this witness may also be in areas I instructed you on with respect to the last witness, so please keep that instruction in mind." Marin testified very briefly about the May 2007 incident that Crystal had described. On cross-examination, defendant's trial counsel elicited Marin's testimony that she had been present and seen Ryan with his arm up against Rosa's throat pressing her up against a vehicle during the July 2007 incident that Rosa had described. Marin found a folding knife inside a vehicle that she was told had been in Ryan's possession during the incident. Marin arrested Ryan for domestic violence.

When defendant testified at trial, his description of the May 2007 incident was similar to Crystal's description. He claimed that he used only his fists until after he was stabbed in the thigh. He took the knife from the other man. "[O]nce I got the knife I just started stabbing him." "I just stood there and just stabbed." Defendant admitted that he had stabbed the man in the chest, stomach and head, and multiple times in the back. Defendant claimed that, while he was stabbing the man, "there was no thought put into it, it just happened." "It was all just, like, the heat of the moment." At some point, he "just stopped" and walked back to the car. Defendant denied that Roach had stabbed anyone during that incident. After he got in the car, he told the others: "You guys didn't see nothing; nothing happened." He was trying to dissuade the others in the car from cooperating with the police. He also told them that the car (which belonged to one of the females) needed to be burned because he had bled on it.

During defendant's trial counsel's direct examination of defendant, he asked defendant, in regard to the May 2007 incident: "were you ever charged with a crime?" The prosecution objected on relevance grounds, and the court sustained the objection. At a subsequent hearing outside the presence of the jury, defendant's trial counsel asked the court to reconsider that ruling. "My position is that it gives a false impression to the jury that he was also charged with that assault . . . ." He asserted "that the reason he never got charged with it is because it's a self-defense situation." The prosecutor argued that the only relevant Evidence Code section 1103 evidence was about "conduct," not "charges." He claimed that the charging decision was due to the "uncooperative" witnesses and victims. The court denied the request. It found that "the fact of charging or not charging" was not relevant.

As to the jail incident, defendant admitted that he was "involved" in the "fight." He claimed that the only other person involved in the assault on Alfaro was Candelaria. Defendant denied that Ledesma was involved in the assault on Alfaro. Defendant admitted that his attack on Alfaro was unprovoked and that he initiated the attack.

Defendant denied any knowledge of how Alfaro had gotten "this mark near his ear . . . ." Defendant's trial counsel objected to the prosecutor's question about the mark on Alfaro's face. Defendant's trial counsel subsequently made a record of the basis for his objection. He complained that the prosecutor's question implied that some weapon had been used to make the mark. Defendant's trial counsel argued that the mark could just be a scratch inflicted by a fingernail. He claimed that the question assumed facts not in evidence and should be stricken. The prosecutor responded that Rogers had testified that the wound was a "cut." A photograph of Alfaro's wound was also in evidence. The court denied the motion to strike.

At the conclusion of the trial, the court instructed the jury: "During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other." The court also instructed the jury: "You've heard testimony that the defendant, [and] Ryan Townes, had character traits for violence. Take that testimony in consideration along with all the other evidence in deciding whether the People have proved whether the defendant was guilty beyond a reasonable doubt. Evidence of Ryan Townes's character for violence can by itself create a reasonable doubt; however, evidence that Ryan Townes' character trait for violence may be countered by evidence of the defendant's bad character for the same trait. You must decide the meaning and importance of that character evidence."

2. Analysis

Defendant does not contend that the trial court erred in finding that Evidence Code section 1103 applied here. He claims only that "anything beyond general testimony to two fights (from Crystal and a guard) and perhaps Crystal's testimony appellant had carried a knife, was disproportionate and unfair." He asserts that "the details" of the Evidence Code section 1103 evidence were "unduly prejudicial" and deprived him of a fair trial. One problem with this contention is that defendant's trial counsel never interposed any Evidence Code section 352 objection to any particular portion of "the details" or to the scope of the Evidence Code section 1103 evidence. The only Evidence Code section 352 objection he ever interposed in connection with the Evidence Code section 1103 evidence was his general objection during in limine motions that the court should exclude all of the Evidence Code section 1103. He never sought exclusion of any particular "details" of that evidence under Evidence Code section 352.

Defendant's appellate contention would therefore appear to have been forfeited, but he contends that his trial counsel was prejudicially deficient in failing to preserve it. Consequently, we proceed to consider the merits of his contention. The defense went to great lengths to introduce evidence of Ryan's prior violence. Its cross-examination of Rosa on this subject was very detailed and extensive, and other witnesses were questioned by the defense about their knowledge of Ryan's violence. In this context, the trial court would not have abused its discretion in overruling a defense objection to the prosecution introducing the "details" of defendant's May 2007 and March 2008 acts of violence. Under Evidence Code section 1103, the prosecution was entitled to utilize evidence of the details of defendant's prior acts of violence to counter the defense's introduction of the details of Ryan's prior acts of violence.

Defendant also claims that the court's allegedly erroneous admission of these "details" was exacerbated by the court's ruling excluding evidence that defendant had not been charged with assault for the May 2007 incident.¹³ Defendant was actually charged with witness dissuasion and arson for the May 2007 incident, but it is difficult to imagine a relevant basis for the prosecution to introduce evidence that those charges had been brought or that the assault victim was uncooperative to counter evidence that no assault charge had been brought. Defendant asserts, without explanation, that "[t]he prosecution was free to offer reasons for non-prosecution." It is not a sound argument that irrelevant defense evidence could have been rebutted with irrelevant prosecution evidence. The issue here was not whether defendant's acts were criminal but whether they were violent. The jury was explicitly instructed that the evidence regarding the May 2007 incident was admitted for the sole purpose of demonstrating that defendant had committed prior acts of violence to show his character for violence. The fact that an assault charge had not been brought against him for that incident had no relevance to whether he had engaged in a violent act on that occasion. Furthermore, defendant did not deny engaging in the acts of violence involved in the May 2007 incident. He freely admitted that he had repeatedly stabbed a man on that occasion after having disarmed the man. The trial court did not err in excluding irrelevant evidence that defendant was not charged with assault for the May 2007 incident.

13 Defendant also asserts that the court "erred in its passing ruling, exploited heavily by the prosecutor, that the prosecutor could argue a signature slicing of Townes and Mr. Alfaro on some sort of similarity theory." He claims that this "theory" was not permitted by Evidence Code section 1101 and should have been precluded under Evidence Code section 352. The only evidentiary ruling that the trial court made in connection with the mark on Alfaro's face was its ruling that it was not improper for the prosecutor to ask defendant about the "cut" on Alfaro's face. Defendant does not claim on appeal that the trial court erred in permitting this question. His claim that the prosecutor should have been precluded from arguing that the cut on Alfaro's face was similar to the cut on Townes's face is a claim of prosecutorial misconduct, which we address in the next section of this opinion.

Defendant also claims that, regardless of the propriety of the trial court's rulings, the admission of the Evidence Code section 1103 evidence violated his right to due process. His argument fails to explain exactly how it was that this evidence violated his right to due process other than to state repeatedly that it created "gross unfairness." We find no basis in the record for this assertion. Evidence of defendant's character for violence was admissible at trial only because defendant introduced evidence of Ryan's character for violence. It was a reasonable tactical choice for defendant's trial counsel to make, but the result was that evidence of defendant's violent acts was admissible at trial. This was not unfair, and certainly not "gross unfairness." The counterbalance required by Evidence Code section 1103 is the essence of fairness, as it allows the defense, and only the defense, to make a decision about whether evidence of a character trait for violence will be admitted at trial. Defendant was not deprived of due process.

D. Prosecutorial Misconduct

Defendant contends that the prosecutor committed three instances of prosecutorial misconduct. First, he claims that the prosecutor committed misconduct in suggesting that the defense had failed to call any of the other people present to testify because Vincent could not have been called to testify as he had invoked the Fifth Amendment. Second, defendant maintains that the prosecutor committed misconduct when he suggested that a cut on Ryan's face was similar to a cut on Alfaro's face and that this was defendant's "signature," even though there was no evidence that defendant had used a knife or any other weapon on Alfaro. Third, defendant asserts that the prosecutor committed misconduct when he told the jury that there was a warrant for defendant's arrest for the May 2007 "assault," which was not true.

" ' "It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.]" ' " (People v. Williams (1997) 16 Cal.4th 153, 221.) Reversal for prosecutorial misconduct is required only where it is reasonably probable that a result more favorable to the defendant would have occurred in the absence of the misconduct. (People v. Bolton (1979) 23 Cal.3d 208, 214.)

1. References to Vincent

a. Background

At the commencement of the trial, the court instructed the jury that "statements made by attorneys are not evidence." At the conclusion of the trial, the court instructed the jury: "Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence."

Vincent invoked the Fifth Amendment at trial, and he was found unavailable to testify. ¹⁴ The prosecution introduced Vincent's preliminary examination testimony as rebuttal evidence. Vincent had testified that Diaz was his cousin and defendant was his nephew. He denied having had any contact with Diaz or defendant on the night of Ryan's death, and he denied that he had used defendant's phone that night. Vincent claimed that he had never left his house that evening. Vincent testified that his last contact with defendant before the killing was at 5:00 p.m. on October 3, and he did not see defendant again until 10 minutes before they were stopped by the police on the evening of October 4, 2007.

14 The prosecution took the position that Vincent could not invoke the Fifth Amendment because he had testified at the preliminary examination. Defendant's trial counsel's position was that Vincent "should be allowed to assert his Fifth Amendment privilege." Defendant's trial counsel conceded that the invocation rendered Vincent unavailable to testify at trial.

In his opening argument, the prosecutor argued to the jury: "Why have other people, why were other people coming in here and lying for the defendant? . . . [¶] Vincent Lopez, I'm sure many of you believe Vincent was involved in this. If this was self-defense, Vince didn't think it was, because if you believe -- Vincent Lopez was there. You heard his testimony, he wasn't there. He didn't see it, he didn't get any phone calls, he doesn't know what we're talking about. [¶] . . . It's not self-defense. There's no blood and there's no blood trail, no fight. The bushes aren't broken. There's no injury to [defendant] or Vincent Lopez, there is no struggling, ladies and gentlemen; this was a vicious attack that came out of nowhere. It was quick, it was violent, it was determined. It was premeditated. [¶] This again. You know what? If there were any, any shred of believability in the defendant's version, you know what, those people, he would have brought somebody in. Because, you know what? As I talked about before, it's not snitching on somebody if you didn't do anything wrong. It's not snitching on anybody if, as by his version, they weren't involved." "He's lying about being the only person there. He's lying about being the only person who attacked Ryan Townes."

Although defendant's trial counsel did not object to this argument at the time, after the prosecutor had completed his opening argument, defendant's trial counsel placed on the record his objection to the prosecutor's argument "regarding people who could have come forward if it was really self-defense and supported [defendant]'s position and testified to that effect. [¶] He specifically stated that Vince did not think it was self-defense." Defendant's trial counsel asserted that this was improper argument because Vincent had asserted the Fifth Amendment and therefore could not have been called as a witness. He asserted that this was prosecutorial misconduct and sought a mistrial. The prosecutor maintained that there were people other than Vincent that defendant could have called and noted that he had not said that defendant could have called Vincent. The court denied the mistrial motion. Defendant's trial counsel did not request an admonition.

The defense argued to the jury: "There has been evidence presented by the District Attorney that another person was there, and a specific person was named. And [defendant], it's been said, if he had people who were there, they would come forward, I'm simply suggesting to you that people may not come forward because of a fear about what could happen to them if they do that. [¶] The D.A. wants you to believe that hey, there is nobody around, there's nobody available because -- in fact, he even used the phrase, Vince didn't think it was self-defense. He doesn't have any basis for that, he has no evidence for that at all. There's nothing in the record at all to support that assertion. [¶] . . . [S]o the assertion by the District Attorney that Vince didn't believe there was self-defense, there's no basis for that, you should totally reject that suggestion on his part because there's absolutely no basis for it."

The prosecutor responded in his closing argument: "When we're talking about Vincent Lopez, he is exactly as the court instructed you, he's unavailable. You're not to speculate on why he's not here; he might be out of the city, state or country. It's irrelevant because what we've got it is Vince's testimony that he swore to under oath at a prior hearing. That's what Vincent Lopez said. So when the defense says there's no evidence of what Vincent Lopez thought, that's not true. It's just not there. [¶] And when I talked about, you know what, bring in those other people, what [defendant] said not on that stand was, well, there were people at the party that I left at the guy's apartment. Where is the guy who he took the knife from to come in and say, no, the knife that he took from me was, it had that snake and gold embossed handle, or better yet, that it didn't look like this knife, [the one found at the scene]. Where is that person? Where is the person who can say, I drove [defendant] over there on Park Avenue at this time. As he was going, he may have said something about why he was going there. Where is that person to corroborate his story? The defendant also said, you know what, there was a guy there and another woman. Where is that person? Where is that other woman who was there?"

Although he did not interpose an objection during the prosecutor's closing argument, after the jury retired to deliberate, defendant's trial counsel again moved for a mistrial. "In his final argument, he made continual references to bringing in others to substantiate self-defense." "I don't think that his statement in his closing argument about Vince, I don't think it's mitigated by saying he didn't know why he was not here, why he is unavailable. You are not to speculate about that. The fact he made specific reference to Vince, again, I believe that is misconduct." He urged that "the first remarks, which I already objected to and requested a mistrial on, tainted the subsequent remarks" and "collective[ly]" justified a mistrial. The court denied the motion. Defendant's trial counsel did not request an admonition.

b. Analysis

Defendant contends that the prosecutor's comments about Vincent "were misleading and took unfair advantage of the court's ruling . . . that he was unavailable." He argues that the prosecutor's arguments suggested that defendant should have called Vincent to testify, when he could not. Defendant also claims that the prosecutor's comment, "[i]f this was self-defense, Vince didn't think it was," was improper because there was no evidence to support it.

The prosecutor's remarks about Vincent in his opening argument did not suggest that defendant was remiss in not bringing Vincent in to testify on his behalf. Instead, the prosecutor characterized Vincent as one of the people who were "coming in here and lying for the defendant." Thus, the prosecutor acknowledged that Vincent had testified, and he asked the jury to conclude that Vincent was lying. The prosecutor argued that, if the jury concluded that Vincent was lying about not being present, Vincent was doing so because he knew that defendant had not acted in self-defense. These were reasonable inferences to draw from the evidence. Diaz testified that he spoke to Vincent on defendant's cell phone that evening and that both defendant and Vincent said they were coming over. Rosa saw one man standing behind Ryan while another man was stabbing Ryan. A reasonable juror could have concluded from this evidence that Vincent was the man standing behind Ryan and that, if Vincent had been there and seen defendant act in self-defense, he would have told the truth in his testimony to help his nephew rather than denying his presence. While there were certainly other reasonable inferences which could have been drawn from this evidence, as defendant's trial counsel argued in his closing argument, the prosecutor's remarks about Vincent in his opening argument were a fair comment on the evidence and did not constitute misconduct. (People v. Williams, supra, 16 Cal.4th at p. 221.)

The prosecutor's remarks about Vincent in his closing argument were also not misconduct. The prosecutor accurately pointed out that Vincent's prior testimony was before the jury and that Vincent was unavailable to testify at trial. He went on to identify a number of people, a list that did not include Vincent, who defendant could have called to testify in support of his self-defense claim.

We find no prosecutorial misconduct in the prosecutor's remarks about Vincent.

2. Similar Cuts

Defendant claims that the prosecutor's argument about the similarity between Alfaro's facial wound and Ryan's facial wound was false and misleading.¹⁵

15 At various points in his briefs, defendant asserts that the trial court ruled, in advance of argument, that the prosecutor could argue that the two cuts were similar. While the trial court did comment that the prosecutor could argue that point, defendant does not point to any place in the record where the prosecutor or the defense ever requested a ruling on that point in advance of argument.

a. Background

During Rogers's testimony about the March 2008 assault, the prosecutor asked him if he had seen a weapon that day. He said no. The prosecutor then asked Rogers if a weapon had been recovered. Defendant's trial counsel objected and asked to approach the bench. A lengthy sidebar followed. Defendant's trial counsel explained that he was concerned that this line of questioning would lead to gang implications. The prosecutor insisted that he was not going to bring up anything related to gangs, but he did intend to argue that the cut on Alfaro's face and the cut on Ryan's face were "similar injuries." The court concluded that the question would not "implicate gangs," and it ruled that the prosecutor could ask whether a weapon was recovered. Rogers then testified that no weapon was recovered. Another sidebar immediately followed. Defendant's trial counsel continued to express concern that opening up this area would inevitably lead to gang evidence. The prosecutor explained: "So the purpose of the question is yeah, I think it looks like a cut. I plan arguing later there is a cut on Alfaro, there's a cut on Townes. It's not my sole purpose in asking him, you know, this specifies there is no weapon -- later on you're going to argue there is no weapon, it's not a cut. Delve into this and I think you're making this way bigger and -- I don't plan on going any further into this." Defendant's trial counsel argued that the prosecutor's implication that defendant "put the same mark on Townes that was put on this guy" was improper because there was no evidence that defendant had "any kind of cutting instrument" when he attacked Alfaro. The court reiterated its ruling that whether a weapon was found was relevant. Defendant's trial counsel continued to complain that the prosecution was "going to argue that basically he's carving people up with a certain style." The prosecutor argued that it was up to the jury to decide whether the two cuts were similar based on the photos. Defendant's trial counsel claimed that the argument that defendant was "leaving [his] mark" on both men necessarily implicated gangs. The court saw no gang implications. "Similarities are something he can argue . . . . That's a viable argument to a lay person."

During the prosecutor's cross-examination of defendant, the prosecutor showed defendant a photo of Alfaro's facial wound and asked: "if you didn't have a weapon, how did this mark near his ear get on his face?" Defendant responded: "I couldn't tell you. It's a scratch. It could happen to anyone." At that point, defendant's trial counsel objected and asked that defendant's answer be stricken. "[B]ut I'll need to approach the bench. I don't want to take up too much time with the jury having to sit there, so I'll defer it, but I want to mark it as an issue." The court responded: "Very well." Cross-examination continued. During a subsequent break after the prosecutor had completed his cross-examination, defendant's trial counsel made a record of his objection. He claimed that this question "assumes facts not in evidence" because there was "no medical evidence" showing that this wound had been inflicted by a weapon rather than a fingernail. The prosecutor maintained that there was a sufficient basis for the question because Rogers had described the mark as a "cut." The court denied the motion to strike.

In his opening argument, the prosecutor argued to the jury that the stab wounds defendant inflicted during the May 2007 incident were "very similar" to the stab wounds to Ryan, which, in his view, did not suggest that defendant was acting out of fear, but instead deliberately trying to kill these men. He also urged the jury to compare the cut on Ryan's face to the cut on Alfaro's face, which he characterized as "similar." "[T]his isn't self-defense. The defendant signed his work. That is not a wound that happens in the heat of a battle; that is not a wound that happens during a sudden quarrel; that is not a wound that takes place under the immediate fear in the necessity to act. What that is is a carving on somebody's face. It's a perfectly straight line. [¶] Now, Mr. Alfaro was still alive and struggling. But after the defendant got done stabbing Ryan Townes, he signed it." (Italics added.) "I want you to think, well, when did [defendant] have time, under this anxiety and fear and reacting, to sign his work?'" (Italics added.) Defendant's trial counsel interposed no objection to this argument.

The defense argued that "there's no evidence whatsoever that a cutting instrument was actually used on Mr. Alfaro. If you look at that mark, it could very well have been a scratch that occurred, you cannot tell." He argued that the marks were "a coincidental occurrence." "It is not something that was specifically done." "[T]hat is not a mark that was purposely placed there. There wasn't time to do it, it doesn't fit with the surrounding circumstances, it doesn't fit with him running away and all the rest of it . . . . It's a coincidence . . . ."

The prosecutor responded in his closing argument: "Again, that's that mark again I was showing you about Ryan Townes. That's calm, that's cool, that's collected. Again, the mark on Mr. Alfaro . . . that's calm, that's cool, that's collected, that's planned, that's predetermined, that's deliberate."

b. Analysis

Defendant contends on appeal that the prosecutor's argument regarding the similarities between Alfaro's facial wound and Ryan's facial wound was misconduct because it (1) was "false and misleading," (2) utilized the evidence for a purpose "outside the purposes for which it is properly admissible," and (3) lacked any evidentiary basis because there was no evidence that defendant had inflicted the cut on Alfaro's face.

We find no merit in defendant's claim that the prosecutor's argument that the two cuts were similar was "false." The defense essentially conceded that the two cuts were similar, and the jury had before it photographs of the facial wounds to Alfaro and Ryan. Nor do we credit his claim that the prosecutor's argument utilized the Evidence Code section 1103 evidence for an impermissible purpose. Evidence Code section 1103 evidence may properly be used to show a defendant's character for violence. Defendant's violent infliction of a facial wound on Alfaro demonstrated his ferocity toward a defenseless victim, and it tended to show that he acted in a similarly fierce manner when he inflicted a similar wound on Ryan when Ryan was defenseless. Character evidence is properly used to show that a person acted in conformance with that character trait. Evidence of the similar facial wounds did so here.

Defendant's primary claim is that the prosecutor's argument lacked any evidentiary basis because there was no evidence that defendant was the person who inflicted Alfaro's facial wound. It is true that there was no direct evidence that defendant inflicted that wound or utilized a weapon during the attack on Alfaro. However, the prosecutor was not precluded from arguing based on reasonable inferences from the evidence. Defendant was the initiator of the assault on Alfaro. Rogers testified that defendant and Ledesma were the primary attackers, and Candelaria joined them. Defendant denied that anyone other than Candelaria was involved. Alfaro's injuries were primarily to his face, and defendant was seen both punching and kicking him. The jury could have reasonably concluded from this evidence that defendant was the source of the wound to Alfaro's face. While no one saw defendant in possession of a cutting instrument and no such instrument was recovered, the jury, which had before it a photograph of Alfaro's wound, could have concluded that this wound could have been inflicted only by a cutting instrument of some kind. The jury was not compelled to accept the defense argument that the wound was merely a "scratch." While the evidence on this point was weak, the prosecutor must be permitted " „ "wide latitude" ' " to argue reasonable inferences from the evidence. (People v. Williams, supra, 16 Cal.4th at p. 221.)

Defendant also contends that the prosecutor knew that defendant had not inflicted the wound to Alfaro's face because, in a subsequent trial on charges arising from that incident, the prosecutor conceded that defendant had not inflicted the wound. It would be improper for us to speculate on how the evidence developed between this trial and the subsequent trial. We will not assume that the prosecutor knew at the time of this trial that defendant would not prove to be the person who had inflicted Alfaro's facial wound. A prosecutor does not commit misconduct in arguing reasonable inferences from the evidence before the jury simply because those inferences may subsequently be shown to lack substance.

3. Nonexistent "Assault" Charge From May 2007 Incident

Defendant contends that the prosecutor committed prejudicial misconduct when he stated in argument that the defense had asked the officers who arrested defendant if they had been aware of a "warrant out for his arrest for, you know, that assault that had taken place in May [2007]." He assigns this as misconduct because defendant was never charged with assault for the May 2007 incident.

a. Background

The prosecutor argued to the jury in his opening argument that defendant's statements at the time of his arrest demonstrated consciousness of guilt. "The defense asked several of the officers, well, did you know that he had a warrant out for his arrest for, you know, that assault that had taken place in May, and the defendant said, well, I wasn't sure they'd pick me up for this right away." (Italics added.) Defendant's trial counsel immediately objected: "Your honor, object. Misstates the evidence, assault in May, a warrant for the assault in May." The court admonished the jury: "Ladies and gentlemen, you're the judges of the facts in this case. You've heard all of the evidence. If the attorneys are at all inaccurate in their arguments as to what you understand the evidence to be, it's your understanding that's important. I'll allow counsel to continue, but keep in mind that what counsel says is not evidence; you will determine the evidence based upon the testimony you received." The prosecutor immediately corrected himself: "The defense asked several witnesses several questions that they knew about the occurrence that had taken place in May. Whether or not Mr. Lopez was wanted for that."¹⁶ (Italics added.) The defense argued to the jury "there's no evidence at all that [defendant] was charged with anything regarding that [May 2007] assault. The D.A. didn't present evidence to that effect at all." "That's self-defense. He wasn't charged with that; there's no evidence of it."

16 The prosecutor later noted: "I'm sure the defense will go, on May 4 those guys started it. My guy was just doing what you could do. But, again, brought in Crystal. What happened? Yeah, those other guys did start it. But did the defendant, I'm not saying he had to back down, but did he?" The prosecutor argued that defendant had purposely confronted the men in the other vehicle because he had urged Roach to pull over.

b. Analysis

The prosecutor unquestionably misspoke when he referred to an "assault" charge for the May 2007 incident. However, the prosecutor's mistake was readily corrected by the court's admonition followed by the prosecutor's correction. In addition, the defense pointed out in its argument that no assault charge had been brought, and the prosecutor did not claim otherwise. We can see no potential for prejudice from the prosecutor's brief, immediately corrected, mistaken reference to a nonexistent assault charge arising from the May 2007 incident.

E. "Subjective Reasonableness" Instruction

Defendant asserts that the trial court prejudicially erred when it instructed the jury that imperfect self-defense requires "subjective reasonableness." The court instructed the jury on both self-defense and imperfect self-defense. It gave complete instructions on both. The imperfect self-defense instructions told the jury: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense or imperfect defense of another. [¶] If you conclude the defendant acted with complete self-defense or defense of another, his action was lawful and you must find him not guilty of anything. [¶] The difference between complete self-defense or defense of another and imperfect self-defense or imperfect defense of another depends on whether the defendant's belief in the need to [use] deadly force was reasonable. [¶] The defendant acted in imperfect self-defense or imperfect defense of another if: [¶] One, the defendant actually believed that he or someone else was in imminent danger of being killed or suffering great bodily injury; [¶] And two, the defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; [¶] But three, at least one of those beliefs was unreasonable.

Belief in future harm is not sufficient, no matter how great or likely the harm is believed to be. [¶] . . . [¶] The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense or imperfect defense of another. [¶] If the People have not met that burden, you must find the defendant not guilty of murder. [¶] The difference between self-defense and imperfect self-defense is as follows: [¶] Self-defense requires both subjective reasonableness and objective reasonableness. [¶] Self-defense completely exonerates the accused. Imperfect self- defense requires only subjective reasonableness. Subjective reasonableness negates malice aforethought, thus reducing homicide to voluntary manslaughter." (Italics added.)

The final three sentences of the court's imperfect self-defense instructions contained an error.¹⁷ These sentences erroneously substituted the phrase "subjective reasonableness" for the phrase "subjective belief." The words "subjective reasonableness" were never defined for the jury. This portion of the instruction conflicted with the remainder of the instruction which unequivocally instructed the jury that imperfect self-defense applied when the defendant had the requisite beliefs in the imminency of the danger and the need to use force but one or both of those beliefs was unreasonable. Because the court's imperfect self-defense instructions correctly informed the jury of the elements of imperfect self-defense but then used incorrect words to distinguish imperfect self-defense from perfect self-defense, the court's instructions were potentially ambiguous.

17 All but the final paragraph of the trial court's instruction was derived from CALCRIM No. 571.

"When reviewing ambiguous instructions, we inquire whether the jury was 'reasonably likely' to have construed them in a manner that violated the defendant's rights." (People v. Whisenhunt (2008) 44 Cal.4th 174, 214.) We do not believe that the jury was reasonably likely to misconstrue the meaning of the imperfect self-defense instructions due to the court's mistaken use of the words "subjective reasonableness" instead of "subjective belief" in describing the difference between self-defense and imperfect self-defense. The imperfect self-defense instructions clearly stated that one of the elements of imperfect self-defense was that one of defendant's beliefs was "unreasonable." These instructions also stated that the difference between self-defense and imperfect self-defense "depends on whether the defendant's belief . . . was reasonable." Under these circumstances, it was highly unlikely that the jury would have disregarded the correct instructions and determined that the court's use of the phrase "subjective reasonableness" meant that imperfect self-defense did not apply unless defendant's beliefs were reasonable, which would have made imperfect self-defense indistinguishable from perfect self-defense.

Defendant argues that the impact on the jury of the trial court's mistaken use of the phrase "subjective reasonableness" was exacerbated by the prosecutor's arguments to the jury.

In his opening argument, the prosecutor argued to the jury: "Imperfect self-defense. There's a subtle difference. Here, we are talking about, well, not what was objectively thought of under the situation, but did the defendant believe that his actions were necessary? [¶] And again, I would say that the defendant did not believe that there was imminent peril. He still has to believe that, even if the killing occurred in a sudden quarrel or in the heat of passion, or the actual, but unreasonable belief in the necessity to defendant [sic] oneself or others against imminent peril or GBI, great bodily injury, again, does the defendant actually believe that? Not what other people observed at the scene, but would he believe that he needed to do that? . . . [¶] . . . [¶] Now we're trying to delve into the defendant's head." "In both perfect self-defense and imperfect self-defense, the defendant must subjectively, actually believe in the necessity to defend against imminent peril." "Again, malice is negated in both self-defense and imperfect self-defense only if the defendant honestly believes the degree of force was in fact necessary." Nothing in the prosecutor's opening argument suggested that imperfect self-defense required that defendant's beliefs be reasonable. The defense closing argument was also consistent with the trial court's correct instructions on the elements of imperfect self-defense: "With respect to imperfect self-defense, if one of your beliefs was unreasonable, . . . you can have imperfect self-defense." If defendant had "an unreasonable belief . . . [i]t's called an imperfect self-defense. Unreasonable on one of the points, that creates the self-defense. [¶] So I think this is a self-defense case, pure and simple. . . . But if you decide, I just can't go with that with the knife thing, that's an unreasonable belief on his part, you still can find that that's imperfect self-defense and you have to find him not guilty of murder, but rather guilty of voluntary manslaughter."

Defendant relies on a few of the prosecutor's remarks in his closing argument. The prosecutor argued in his closing argument that, while "you can keep attacking until the danger is over," "you can't keep stabbing until the person is dead, you can't stab this individual over and over again because that's the way you think or that's your mindset. Not only for self-defense does it have to be reasonable objectively and subjectively. Even in imperfect self-defense. We can talk about what he was thinking, but it still have [sic] to be reasonable. He has to believe what he's doing is reasonable. And he didn't." (Italics added.) "You know what, even in imperfect self-defense, his belief, it has to be his subjective belief, but at some point he has to reasonably, in his mind it has to be an honest belief in his mind that person needs to die immediately in order to justify his fears and his actions, and we don't have that. We just don't have that. [¶] Again, you have to believe that the defendant thought he was in danger." "This is not an [sic] case of imperfect self-defense, because even the defendant didn't believe that that's what happened."

It is true that this portion of the prosecutor's argument strayed into ambiguity about whether reasonableness played a role in imperfect self-defense. The prosecutor argued that imperfect self-defense required that the defendant "believe what he's doing is reasonable." This is not an element of imperfect self-defense. However, we do not think it is likely that the jury would have been misled by these brief comments in light of the trial court's explicit instructions that an element of imperfect self-defense is that one or both of defendant's beliefs were unreasonable. Defendant did not object to this argument by the prosecutor, and he does not assign it as misconduct on appeal. Although defendant argues otherwise, it is well accepted that the applicable prejudice standard for an error in instructions on imperfect self-defense is the standard described in People v. Watson (1956) 46 Cal.2d 818. (People v. Blakeley (2000) 23 Cal.4th 82, 93.) "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 (Watson, supra, 46 Cal.2d 818, 836)." (People v. Breverman (1998) 19 Cal.4th 142, 178.)

The prosecutor's brief remarks in his closing argument suggested only that defendant had to believe that he was acting reasonably in order to meet the elements of imperfect self-defense. This was not really inconsistent with the correct instructions on imperfect self-defense. Imperfect self-defense depends on a defendant actually and honestly believing that an imminent danger necessitates the use of deadly force. While the prosecutor's use of the word "reasonable" was not a good choice in this context, it is not reasonably probable that the jury would have understood the prosecutor's wording to refer to anything other than the requirement that the defendant believe that his use of force was necessary. A layperson would understand that a person who believes that their action is necessitated by an imminent danger would also believe that their action was reasonable.

The jury was given complete and correct instructions on the elements of imperfect self-defense as set forth in CALCRIM No. 571, and the prosecutor's opening argument and the defense closing argument were completely consistent with those correct instructions. Under these circumstances, the jury was not reasonably likely to be misled by the trial court's use of an inaccurate phrase in three sentences of the paragraph it added to the CALCRIM No. 571 instructions or by the prosecutor's poorly worded remarks in his closing argument.

F. Contrived Self Defense Instruction

Defendant contends that the trial court erred in instructing the jury: "A person does not have the right of self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force."

He claims that the court should not have given this instruction because there was no evidentiary basis for it. The evidence before the jury was sufficient to support the court's instruction. Diaz testified that he sought defendant's help solely to extricate Rosa from Diaz's apartment. Defendant did nothing to accomplish that goal. He armed himself with two knives and arrived at the apartment building without his own means of transport. After encountering Ryan, who did nothing more than ask defendant if he knew Diaz or Rosa, defendant immediately prepared to use his knife by unfolding it and keeping his hand on it but also keeping it concealed in his pocket. With his knife concealed but ready for action, defendant positioned himself in front of Ryan and within arm's reach. He proceeded to tell Ryan "fucker, just leave" and "smirk[ed]" at him. The jury could have concluded that defendant's conduct was intended to provoke a fight so that defendant would have an opportunity to use his knife on Ryan.

Defendant also contends that "the instruction is overbroad" because it used the word "quarrel," which the jury could have understood to include a "verbal argument."¹⁸ This argument ignores the nature of the instruction. This instruction tells the jury that a defendant may not intentionally "provoke[]" a response by the victim so as to "create an excuse to use force." A defendant who provokes a physical or verbal response by a victim solely to "create an excuse to use force," and then counters the victim's response with force, is not defending himself when he uses force. The intent element of the instruction is not the intent to "quarrel" but the intent to create an excuse to use force. If defendant did not intend to create an excuse to use force, then the instruction would not apply. If he intended to provoke a verbal response that excused his use of force, he could not rely on that response to his provocation to excuse his use of force. By restricting its ambit to those responses which were intended to create an excuse to use force, the instruction avoids the type of overbreadth that defendant claims it has.

18 In his reply brief, defendant also contends that the instruction is "vague." Because he failed to raise this issue in his opening brief, thereby precluding the Attorney General from having an opportunity to respond to it, it would be unfair for us to address it. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 763-765.)

G. CALCRIM No. 373

Defendant claims that the trial court prejudicially erred when it instructed the jury with CALCRIM No. 373 regarding unjoined perpetrators. The court instructed the jury: "The evidence shows that other persons may have been involved in the commission of the crime charged against the defendant. There may be many reasons why someone who appears to have been involved might not be a co-defendant in this particular trial. You must not speculate about whether those other persons have been or will be prosecuted." He contends that this instruction was inappropriate because Vincent's testimony was introduced at trial. Defendant argues that this instruction improperly "chills jurors' consideration of significant accomplice witness bias going to credibility."

There is no merit to defendant's claim. The trial court explicitly told the jury that "[t]he testimony of Vincent Lopez [that] has been read to you . . . [¶] . . . must [be] evaluate[d] . . . by the same standards that you would evaluate any other testimony of a witness who has testified here in court." "When the instruction [on unjoined perpetrators] is given with the full panoply of witness credibility and accomplice instructions, as it was in this case, a reasonable juror will understand that although the separate prosecution or nonprosecution of coparticipants, and the reasons therefor, may not be considered on the issue of the charged defendant's guilt," this limitation does not preclude the jury from considering "evidence of interest or bias in assessing the credibility of prosecution witnesses." (People v. Price (1991) 1 Cal.4th 324, 446.)

This was not a case in which a coparticipant testified for the prosecution and incriminated the defendant. Vincent's testimony was a complete denial of any knowledge about these events, which, if believed, did not inculpate defendant at all. Of course the prosecutor argued to the jury that Vincent had lied and that he had been with defendant when defendant killed Ryan. However, the evidence of Vincent's participation in the crime was not Vincent's testimony and did not depend on whether the jury found Vincent to be a credible witness. Instead, the determination of whether Vincent had participated in the crime depended on the testimony of Rosa and Diaz.

CALCRIM No. 373 correctly told the jury that it should not speculate about whether Vincent would be prosecuted for this crime. That was indeed irrelevant to the issues before the jury at this trial. The jury was given the full panoply of witness credibility instructions and specifically told to apply those instructions to Vincent's testimony. Under these circumstances, the trial court's instruction of the jury with CALCRIM No. 373 was not likely to mislead the jury regarding its duty to evaluate the credibility of Vincent's testimony.

H. Voluntary Intoxication Instruction (CALCRIM No. 3426)

Defendant claims on appeal that the trial court's voluntary intoxication instruction was prejudicially inadequate because it instructed the jury that it "may" consider such evidence rather than that it "must" consider such evidence.

At the instruction conference, defendant's trial counsel stated: "I, for tactical reasons, do not want to argue voluntary intoxication in this case; I don't think it's a viable argument. I don't think it would be beneficial to my client to use the argument." Nevertheless, the court gave a voluntary intoxication instruction. "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with deliberation or premeditation or the defendant acted with express malice aforethought. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using an intoxicating drink or other substance, knowing it could produce an intoxicating effect or willingly assuming the risk of that effect. You may not consider evidence of voluntary intoxication for any other purpose." Defendant's trial counsel argued to the jury: "The D.A. made a big deal about, well, if [defendant] was going to claim voluntary intoxication, there's a jury instruction. It has nothing to do with the case. That's not important to what we're talking about here." (Italics added.)

Any inadequacy in the voluntary intoxication instruction could not have played a role in the jury's deliberations because defendant's trial counsel explicitly told the jury that it was irrelevant and "has nothing to do with the case." We reject defendant's claim that the trial court's voluntary intoxication instruction was prejudicially erroneous.

I. Natural and Probable Consequences Instruction

Defendant complains that a sentence regarding natural and probable consequences was erroneously included in the aiding and abetting instructions.

The court instructed the jury: "A person may be guilty of a crime in two ways: [¶] One, he or she may have directly committed the crime. I will call that person the perpetrator. [¶] Two, he or she may have aided or abetted a perpetrator who directly committed a crime. [¶] A person is equally guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator who committed it. Under some specific circumstances, if the evidence establishes aiding and abetting of one crime, a person may be found guilty of other crimes that occurred during the commission of the first crime. [¶] To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the [prosecution] must prove that: [¶] One, the perpetrator committed the crime; [¶] Two, the defendant knew the perpetrator intended to commit the crime; [¶] Three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] Four, the defendant's words or conduct did in fact aid and abet the person's commission of the crime. [¶] Someone aids and abets a crime if he or she knows the perpetrator's unlawful purpose and he or she specifically intends to and does in fact aid, facilitate, promote, encourage or instigate the perpetrator's commission of that crime."¹⁹ (Italics added.)

19 These instructions were based on CALCRIM Nos. 400 and 401.

While it is clear that the trial court mistakenly included the one sentence italicized above in the aiding and abetting instructions, it is not possible that defendant was prejudiced by its inclusion. Defendant admitted that he was the actual perpetrator who stabbed Ryan to death. It was undisputed that defendant was not an aider and abettor and that no crime other than murder was ever contemplated. Hence, under any standard of review, the trial court's mistake was harmless.

J. Cumulative Error

Defendant contends that the trial court's errors were cumulatively prejudicial. The only errors that the trial court made were giving an instruction that used the phrase "subjective reasonableness" rather than "subjective belief" and including in the aiding and abetting instruction an irrelevant sentence regarding natural and probable consequences. As we have already explained, the former error was harmless. The latter error plainly had no impact whatsoever on the jury as it had no application to the undisputed facts. Thus, there was no prejudice to cumulate.

IV. Disposition

The judgment is affirmed.

Mihara, J. WE CONCUR: Bamattre-Manoukian, Acting P. J. Duffy, J.