Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F07906937, John F. Vogt, Judge.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jennevee H. DeGuzman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Wiseman, J. and Kane, J.
A jury convicted appellant, Vidal Lozano, of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). In a separate proceeding, appellant admitted allegations that he had suffered two “strikes” and two prior serious felony convictions (§ 667, subd. (a)(1)), and that he had served three separate prison terms for prior felony convictions (§ 667.5, subd. (b)).
We use the term “strike” as a synonym for “prior felony conviction” within the meaning of the “three strikes” law (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
The court imposed a prison term of 35 years to life, with the determinate portion of the sentence consisting of 25 years on the substantive offense and five years on each of the two prior serious felony enhancements.
On appeal, appellant’s sole contention is that the court erred in instructing with CALJIC No. 5.40 on the right of occupants of a residence to use reasonable force to eject a trespasser. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Facts - Prosecution Case
Appellant and Anna Rodriguez are brother and sister. Their mother is Erminia Navarro. Philip Ramos is also Anna’s brother.
We refer to Anna Rodriguez and Philip Ramos by their first names, for the sake of brevity and clarity.
Anna testified that one day in September 2007, at approximately noon or 1:00 p.m., she and appellant got into an argument at Anna’s house. They argued about appellant taking “some chairs and stuff” from some friends of Anna’s who live nearby and bringing the items to Anna’s house. Appellant left, but returned later that day, at night. In the house at the time were Anna; her two sons, Pete Benavides and Juan; her niece, J.G.; and Philip.
Except as otherwise indicated, the “Prosecution Case” portion of our factual statement is taken from Anna’s testimony.
We refer to Pete Benavides by his first name for the sake of brevity and clarity.
Juan’s surname does not appear in the reporter’s transcript.
Anna was in her room when she heard appellant “arguing with her sons.” She came out of her room and saw appellant trying to force his way into the house through the front door. He “had his foot in the door,” and he was “pushing the door,” but Juan and Pete were “holding the door.” Eventually, appellant “forced his way in.” “They were all yelling,” and appellant may have struck Juan or Pete, but at some point Philip persuaded appellant to leave, “and then all of a sudden... everybody was outside....”
The argument continued outside, where Anna saw appellant chasing Pete around Philip’s car, which was parked in the driveway. Anna “went over there to get [appellant] away from [Pete].” Appellant “was trying to grab [Pete] or something, and then that’s when [Anna] got in the way and then [appellant] pulled out his knife or whatever he had in the pocket and then he stabbed [Anna] with it.”
J.G. testified to the following. One night in September 2007 appellant was at Anna’s house. He was arguing with J.G.’s cousins because they would not let appellant into the house. Later, she saw appellant “chasing [Pete] around the car.” She also “saw [Anna] telling [appellant] to leave,” and Philip “trying to get [appellant] in the car to take him home....” Appellant started to get in the car “but he like kept pausing like stopping and getting back out.” Then, he “went after [Anna].” He “walked toward her” with a knife in his hands, and “[h]e stabbed her.” J.G. called 911.
Except as otherwise indicated, the “Defense Case” portion of our factual statement is taken from appellant’s testimony.
On September 3, 2007, appellant obtained from Anna what he thought was PCP, but when he smoked it that night, at the home of his sister, Doreen Gonzales, with whom he was staying, it “had no effect.” The next day, at approximately 12:00 p.m., appellant went back to Anna’s house, at which time he told her he was not going to pay for what she gave him. Anna became very upset, and she and appellant argued. Anna told appellant to leave, and appellant went back to Gonzales’s house.
Approximately two hours later, Anna arrived in a car at Gonzales’s house with Juan and two of Juan’s friends. Appellant went outside when the car pulled up. Anna got out of the car and threw approximately three beer bottles in appellant’s direction; they hit the house. Anna appeared to be under the influence of PCP.
At some point, Erminia Navarro came out of the house and tried to calm Anna down. Anna, however, “hit” Navarro. At that point, Juan and his companions “told [Anna] to get in the car,” and “eventually” the car drove off.
Navarro testified to the following. She was at Gonzales’s home on the evening of September 4, 2007, when Anna arrived in a car with Juan and two of his friends. Anna got out of the car and “started yelling at [appellant] to get out of Fresno....” She “threw bottles of beer at [the] house.” Appellant was standing on the porch at the time. Navarro “went out [and] tried to tell [Anna] to leave.” Navarro and Anna began “push[ing] each other,” at which point Anna hit Navarro in the face with a door knob she was holding in her left hand.
Appellant testified that approximately 30 minutes to an hour after the altercation at Gonzales’s house, Anna telephoned and told appellant to come to her house and pick up his belongings--“a Play Station[], some... DVD games and some CD’s”--or else she would “throw them out in the front yard.”
Appellant waited until approximately 11:00 p.m., to give Anna time to “cool off,” before driving to Anna’s house. When appellant arrived, Juan, Pete, J.G. and Philip were sitting on the porch. As soon as they saw appellant they “kind of like started arguing.” They “didn’t want [appellant] over there.” Appellant stated he “just wanted [his] stuff,” and Philip offered to take appellant home and bring his belongings to him later. Appellant agreed and got in Philip’s car, at which point he “looked up” and saw “everybody coming... out with something in their hands in a fast pace.” Anna had a hammer, somebody else had a bat and somebody else had a fireplace poker. Anna “was cursing” and “saying she didn’t want [appellant] there.” Juan and Pete were “pretty much like aggressive.” Appellant got out of the car and was “pretty much like surrounded.” He “felt like [he] was trapped” and that he “had to protect [him]self,” so he “pulled out a knife and... just swung it and tried to make them back up” and “give [him] space.” The others “backed up at that point,” and appellant “found like a little seam” and ran off.
Procedural Background
The court instructed the jury regarding the defense of self-defense, in the language of CALCRIM No. 3470, in relevant part, as follows: “A defendant is not guilty of [assault with a deadly weapon or the lesser included offense of simple assault] if he used force against the other person in lawful self-defense. The defendant acted in lawful self-defense if one, the defendant reasonably believed he was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully. [Two], the defendant reasonably believed that the immediate use of force was necessary to defend against that danger. And [three], the defendant used no more force than was reasonably necessary to defend against that danger.”
The court also instructed the jury, at the prosecutor’s request and over defense objection, in the language of CALJIC No. 5.40, as follows: “The lawful occupants of a residence have the right to request a trespasser to leave the premises. If the trespasser does not do so within a reasonable time, occupants may use reasonable force to eject the trespasser. The amount of force which may be used to eject the trespasser is limited by what would appear to a reasonable person under the existing circumstances to be necessary to prevent damage to the property or physical injury to the occupants.”
In closing argument, the prosecutor acknowledged that the prosecution had the burden of disproving appellant’s claim of self-defense and urged the jury to not believe appellant’s testimony that he was attacked by multiple weapon-bearing assailants. The prosecutor then argued: “Another thing you can consider is where the defendant was at. He was at his sister Anna’s house, it wasn’t his house. And you’ll receive an instruction on this. And... I’m not going to read it directly but I’m going to summarize and it says that the lawful owner of residence has the right to ask someone to leave. That makes sense, doesn’t it? And if they refuse to leave, you can use reasonable force to get them out.”
DISCUSSION
Appellant argues the court erred in instructing the jury with CALJIC No. 5.40, regarding the right of occupants of a residence to use reasonable force to eject a trespasser, because (1) “there was no factual basis” for the instruction and (2) the instruction lessened the prosecution’s burden of proof. We address these contentions in order.
At the outset we clarify what is not at issue. There is no serious dispute that the giving of CALJIC No. 5.40 is not necessarily erroneous where, as here, a defendant raises a claim of self-defense. As indicated above, the jury was instructed, correctly, that appellant acted in self-defense if, among other things, he “reasonably believed he was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully.” (Italics added.) Thus CALJIC No. 5.40 can be relevant to a claim of self-defense because it can guide the jury in determining whether the forceful ejection of a trespasser constitutes an unlawful touching. (See People v. Watie (2002) 100 Cal.App.4th 866, 878 [where defendant was accused of assault occurring in home of victim, “if [victim] had a right to … defend himself in his home, then defendant had no right of self-defense”].)
Appellant’s argument is that it was error to give CALJIC No. 5.40 because under appellant’s version of events, he was not a trespasser, and under Anna’s version, she was trying to protect her son, not eject a trespasser, and the evidence did not show she was using force against appellant, and therefore “there was no factual basis” for the instruction.
A court must instruct on the principles of law relevant to the issues raised by the evidence and has the correlative duty to refrain from instruction on principles of law that are irrelevant. (People v. Mobley (1999) 72 Cal.App.4th 761, 781.) Thus, “It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case.” (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) We assume without deciding that, as appellant argues, the evidence did not support the giving of CALJIC No. 5.40, and that therefore the court erred in giving the instruction. Any such error, however, was harmless.
“[A court’s error in giving a jury instruction not supported by the evidence] is... one of state law subject to the traditional Watson test (People v. Watson (1956) 46 Cal.2d 818, 836).... [Citation.] Under Watson, reversal is required if it is reasonably probable the result would have been more favorable to the defendant had the error not occurred.” (People v. Guiton, supra, 4 Cal.4th at p. 1130.) “[S]uch an error is usually harmless, having little or no effect ‘other than to add to the bulk of the charge.’ [Citation.] There is ground for concern only when an abstract or irrelevant instruction creates a substantial risk of misleading the jury to the defendant’s prejudice.” (People v. Rollo (1977) 20 Cal.3d 109, 123.) “In determining whether there was prejudice, the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict. [Citation.]” (People v. Guiton, supra, 4 Cal.4th at p. 1130.)
Appellant argues the asserted error was prejudicial because (1) the prosecutor, by arguing that the instruction was a “relevant consideration” in the jury’s evaluation of appellant’s claim of self-defense, “directed the jury’s attention to this instruction”; (2) “the court did not tell the jury how to use the instruction,” and thus it became a “free-floating statement of the law the jurors could employ as they saw fit” and “a factor in a balancing test to decide whether the prosecution had proved the absence of self-defense beyond a reasonable doubt,” rather than a guide for “decid[ing] whether to negate a claim of self-defense (its only conceivable proper use)”; and (3) “there was strong evidence that appellant acted in self-defense.”
The second of these points is, in essence, a claim that the challenged instruction was likely to mislead the jury in some significant way. This is the crux of appellant’s prejudice argument. The strength of the evidence supporting appellant’s claim of self-defense and the prosecutor’s reference to CALJIC No. 5.40 during closing argument are of no moment unless, as appellant asserts, the instruction was likely to mislead the jury.
However, it is not clear what appellant means by his assertion that the challenged instruction would encourage the jury to consider Anna’s conduct as “a factor in a balancing test” to determine whether appellant acted in self-defense, or how, if the jury did so, it would prejudice appellant. As best we can determine, appellant’s argument is that the challenged instruction, by directing the jury’s attention to irrelevant matters, likely confused and distracted the jury, thereby creating a substantial risk that jurors would not adequately comprehend the weakness in the prosecution claim that appellant did not act in self-defense. We disagree.
The court also instructed the jury as follows: “Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.” In short, the court told the jury to ignore inapplicable instructions, and we presume the jury followed the trial court’s instructions. (People v. Young (2005) 34 Cal.4th 1149, 1214.) This presumption is not overcome, as appellant suggests, by the prosecutor’s argument that CALJIC No. 5.40 did apply.
We conclude that if the evidence was insufficient to support CALJIC No. 5.40, the instruction was, at worst, superfluous. Accordingly, appellant has not demonstrated there was a substantial risk that the jury was misled to his prejudice.
Appellant also argues that CALJIC No. 5.40 improperly lessened the prosecution’s burden of proof, in violation of appellant’s due process rights under the United States Constitution. As appellant points out, the federal constitution’s due process guarantee requires the prosecution to bear the burden of proving the absence of self-defense beyond a reasonable doubt. (People v. Martinez (2003) 31 Cal.4th 673, 707.) He asserts: “Because there was no factual basis for the instruction and because the trial court gave the jury no guidance how to use this instruction, the jury was permitted to consider this irrelevant instruction as a factor in deciding whether the prosecution met its burden of proof regarding the absence of self-defense. The instruction became an additional (and irrelevant) consideration that the jury could weigh against appellant’s claim of self-defense. As such, the prosecution’s burden was lessened.”
Thus, appellant’s argument is, in essence, that giving an instruction that allowed the jury to consider, in assessing appellant’s claim of self-defense, evidence irrelevant to that claim, i.e., evidence of Anna’s conduct leading up to the stabbing, lessened the prosecution’s burden of proof. However, the claim that an instruction directed the jury’s attention to irrelevant matters is simply another way of arguing that the instruction had no application to the case. And as indicated above, such error is not “of federal constitutional dimension.” (People v. Guiton, supra, 4 Cal.4th at p. 1129.)
We again assume without deciding that the evidence did not support the giving of CALJIC No. 5.40.
“When we consider a claim [that a jury instruction lessened the prosecution’s constitutionally mandated burden of proof] the question we ask is whether there is a reasonable likelihood that the jury construed or applied the challenged instruction in an objectionable fashion.” (People v. Berryman (1993) 6 Cal.4th 1048, 1073, fn. 3.) When we apply this standard we conclude there is no reasonable likelihood the jury construed or applied the challenged instruction in a way that lessened the prosecution’s burden of proof.
DISPOSITION
The judgment is affirmed.