Opinion
D075929
11-25-2019
THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO LARA MARTINEZ, Defendant and Appellant.
Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BAF1500515) APPEAL from a judgment of the Superior Court of Riverside County, Jeffrey J. Prevost, Judge. Affirmed. Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
An information charged defendant Alejandro Lara Martinez with the murder of victim Daniel Leonard (Pen. Code, § 187, subd. (a)), and alleged in the commission of that offense that defendant personally and intentionally discharged a firearm and proximately caused great bodily injury or death (§§ 12022.53, subd. (d) & 1192.7, subd. (c)(8)). A jury convicted defendant of second degree murder and found the firearm enhancement allegation true. After exercising its discretion and striking the firearm enhancement, in part because defendant was only 19 years old when he committed the murder, the court sentenced him to 15 years to life in prison.
Because defendant's brothers also testified at trial, when necessary we will use first names for clarity.
All further statutory references are to the Penal Code.
On appeal, defendant contends the court erred when, after dismissing a prospective juror for cause, it failed to give a curative instruction to the remaining panel members as a result of certain statements made by the excused juror during the venire. Defendant further contends the court erred by instructing the jury with CALCRIM No. 225, applicable to circumstantial evidence of intent and/or mental state, rather than CALCRIM No. 224, which is the more general instruction on circumstantial evidence.
As discussed post, the record shows defense counsel also suggested the court consider granting a mistrial or dismissing the entire jury panel as a result of the prospective juror's statements. We note, however, that on appeal defendant only challenges the court's failure to give some sort of curative instruction to the remaining prospective jurors.
As we explain, we reject these contentions and affirm the judgment.
FACTUAL BACKGROUND
We summarize the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690.)
Witness Daniel Lara Martinez, defendant's older brother, testified he was visiting their mother on June 27, 2015, at her home located on East Barbour Street in the City of Banning. Defendant at the time was living in the home, and was helping his other brother Fernando Lara Martinez with renovations to a home Fernando had recently purchased, which was located next door to their mother's home.
Daniel, who was in the military, spoke to detectives on the day of the homicide, and again after defendant was arrested on July 5 at Daniel's home in San Diego. A portion of Daniel's June 27 interview was played for the jury. Daniel on July 5 "reiterated the same account of events" of the homicide he had provided police in the evening of June 27.
During the June 27 interview, Daniel told detectives that defendant had consumed "two 40s that day" of "Steel Reserve"; that Daniel was in the front yard of their mother's house filling up an inflatable pool he had just bought his children, who were with him outside; and that Daniel saw Fernando "running into the middle of the street," after defendant had confronted a man wearing a green shirt. Daniel told detectives he also ran into the street to break up the fight between defendant and the man. Daniel got between them and pushed his brother away, imploring him to stop. Daniel and defendant then argued because Daniel was angry at his brother for "starting" a fight and causing problems in front of Daniel's children.
Daniel told detectives that defendant confronted the man because defendant and their mother believed the man had been taking property, including a radio, from Fernando's house. During the confrontation, Daniel saw defendant was angry and at one point, was chasing after the man. Daniel told detectives when the man admitted to trying to steal the radio, defendant became even more aggressive toward the man, who was backing up and trying to avoid the confrontation.
At some point, defendant got in the man's "face," leading the man to punch and knock defendant to the ground. Once defendant got back on his feet, Daniel and Fernando began pushing him away from the man. Before running away, the man tried multiple times to shake Daniel's hand. As the man ran away, Daniel told detectives he heard defendant yell, "I'm going to kill you." Because Daniel believed the confrontation was over, he went back to filling up the pool for his children, and Fernando returned to his own house to continue renovations. Daniel saw defendant go into their mother's house.
About five minutes later, Daniel saw defendant backing his silver Chrysler 300 car, with tinted windows, down the driveway. Daniel told detectives he next saw defendant go "speeding eastbound on East Barbour Street" in the same direction as the man. Daniel also told detectives that before this incident, defendant had bragged about having guns in his car; and that in May 2014, defendant had shown Daniel an SKS rifle that defendant kept in his bedroom.
A few minutes after defendant left in his car, Daniel learned from others up the street that "someone" had been shot. Daniel did not hear from defendant until July 2, when he unexpectedly appeared at Daniel's home located on a military base in San Diego. Daniel could not recall whether defendant had any belongings with him when he came to Daniel's home. Defendant stayed with Daniel until July 5, when police officers took defendant into custody.
Fernando Lara Martinez testified he was living with his mother and brother Alejandro on June 27, 2015, as he was in the process of renovating a home located next door to his mother's home. During the renovation, Fernando was the victim of at least two thefts, including one where about $5,000 of tools were stolen.
Fernando and his father were busy renovating the bathroom on the day of the homicide. Fernando recalled that his brother Daniel and Daniel's wife and children were visiting their mother that same day. At about 3:30 p.m., while Daniel was busy inflating a pool for his children, Fernando saw defendant confront a man in a green shirt, who, according to Fernando, appeared to be walking away from defendant.
Fernando admitted telling detectives in the evening of June 27 that immediately before the confrontation, defendant "pointed out" the man in the green shirt and exclaimed he was "going to fight him"; that Fernando had seen this man in the neighborhood, including the night before the homicide when the man asked for "cigarettes and beer"; and that defendant said he wanted to fight because the man allegedly had gone into Fernando's home during the renovation. A portion of Fernando's June 27 interview with police was also played for the jury.
Fernando told detectives during the interview that defendant had been drinking before the confrontation; that Fernando told defendant to leave the man alone; and that defendant ignored his brother, took off his watch, and confronted the man, who, according to Fernando, was "just walking down the road." Fernando again told his brother to leave the man alone and to go inside the house because Fernando was "about to have a kid" and did not want any of that "drama" or "problems." Defendant instead "got in [the man's] face," and accused the man of stealing property from Fernando's home.
Fernando also told detectives that he went into the street and tried to break up the fight; that the man "was backing up and saying [']it wasn't me, it wasn't me[']" in response to defendant's accusations; and that the man ultimately admitted he tried to steal a radio, but then said he put it back. According to Fernando, defendant next swung at the man, but missed. The man continued to back up to avoid defendant, who continued to throw punches at the man. At some point Daniel also arrived and attempted to stop defendant. The man, who avoided most, if not all, of defendant's punches, finally swung and hit defendant, knocking him to the ground and giving him a bloody lip.
Fernando and Daniel finally succeeded in holding their brother back from the man, as they instructed the man to leave the area. The man in response tried multiple times to shake the hand of both Fernando and Daniel. Fernando told detectives he informed the man, "Who cares about stuff. Whatever's done is done. Just don't come by my house anymore." The man agreed and left on foot, heading eastbound on East Barbour Street.
After the confrontation, defendant was upset because his brothers had stopped him from going after the man. Fernando saw defendant "with his head down" walk back into their mother's house. Believing the incident was over, Fernando returned to his own house to continue renovations, while Daniel went back to filling up the inflatable pool.
Fernando admitted to detectives he was upset at defendant for "causing the problem in the street in front of [Fernando's] house." Fernando also admitted that some of the thefts from his home had been caused by family members. At some point after the confrontation, Fernando realized defendant's car was missing from the driveway. Fernando told detectives that defendant drove a "silver-ish Chrysler 300, with chrome rims."
Sergeant Vincent Avila of the Banning Police Department was on duty at about 3:45 p.m. on June 27 when he responded to a call made just minutes earlier about a single gunshot and a man being down on East Barbour Street. Sergeant Vincent found a man lying on his back in the 300 block of East Barbour Street, close to the Banning Unified School District (District) maintenance yard. The man's feet were on a sidewalk, while the rest of his body was in a dirt field. The man was wearing a green shirt. Sergeant Vincent recognized the victim as Leonard from prior contacts. About five feet from the man was a large spent bullet casing, later identified as a 7.62-millimeter caliber.
Banning police officer Derek Thesier was on patrol at about 4:30 a.m. on June 29, about two days after the homicide, when police located a silver Chrysler 300 backed into a cul-de-sac. Although the car's front license plate was missing, Officer Thesier found a license plate on the back of the car. Officer Thesier ran the plate number and learned the car was a "vehicle of interest." The car was secured and impounded for forensic examination.
Police conducted a lawful search of the car. In the glovebox they found a check stub bearing defendant's name. They also found inside the car a red bank card with defendant's name, and, upon testing, gunshot residue from a sample taken from the interior side of the driver's door.
According to the criminalist who tested the sample, gunshot residue is comprised of particles that typically are found within about two or three feet from a discharged gun. The criminalist testified that the sample from the door of defendant's car had "[m]any characteristic particles of gunshot residue." As such, the criminalist opined that the "sample surface was either in the vicinity of the discharge of a firearm or otherwise in an environment of gunshot residue."
Luis R. testified he lived on East Barbour Street with his mother and brothers on the day of the homicide. At around 3:45 p.m. while eating at the kitchen table with his mother and brother Santiago N., they heard what Luis described as a "big bang." Believing initially it was a firecracker, Luis immediately looked out the kitchen window and saw what he described as a gray or silver "Chrysler 300" car with "chrome rims" speeding away from the dirt field across the street. Luis noticed the car was in the wrong lane as it sped off eastbound. Luis could not see the driver of the car.
Immediately thereafter, Luis testified they saw a man lying on the ground. Luis went outside and called 911, which recording was played for the jury. Luis told the dispatcher he heard a single gunshot, and saw a man wearing a green shirt and white pants lying motionless on the ground. Luis also described the car that sped off as a "Chrysler 300 silver," with "[c]hrome rims."
Luis approached to within about a foot of the man to see if he could render aid. Luis did not see any weapons on or near the man. Luis also testified that once outside, nobody else approached the man, nor did he see anyone or anything fleeing the area other than the Chrysler 300 car. Detectives showed Luis a picture of a car, which Luis stated he was "99 percent sure" was the same type of car he saw speeding away from the man.
Santiago corroborated the testimony of his brother Luis. Santiago testified that they were in the kitchen eating at about 3:45 p.m. on the day of the homicide when they all heard a "big pop"; that he quickly got up, looked out the window, and saw a newer-model Chrysler 300 car with tinted windows speeding eastbound on East Barbour Street; that the car was on the "wrong side of the road," then moved into the correct traffic lane, as it sped off; and that once the car left his sight, he went outside and saw a man in a green shirt lying on the ground.
Witness Brittany W. testified she and her two children were with her boyfriend, Cody L., who was driving them westbound on East Barbour Street at about 3:30 p.m., when they came upon a group of men arguing in the middle of the street. She described one of the men as a "short Mexican [wearing] a green shirt," another as a "heavier-set" Hispanic male, and two others as males wearing black shirts. Brittany observed the heavier-set male was arguing with the "skinnier Hispanic male," who did not appear to be arguing back. As they neared the group, the heavier-set man "waved [them] through," as the men were blocking traffic. Although Brittany could not hear what the men were saying, the heavier-set man appeared angry, while the man in the great shirt appeared scared.
About 30 or 45 minutes later, while driving home on East Barbour Street they came upon police officers and crime-scene tape. Brittany saw an individual lying on the ground covered by a yellow blanket. Brittany inquired, and was told the victim had been shot. Brittany then informed officers about the altercation they had witnessed a little earlier.
Cody testified he was driving westbound on East Barbour Street at about 3:30 p.m. with his girlfriend Brittany and her two children. As they drove, they came upon two men standing in the middle of the street. According to Cody, one of the men wore a green shirt, and was "smaller-built" than the other man, who was wearing a black shirt. The man in the black shirt appeared aggravated based on his demeanor, as Cody could tell the man was very emotional about whatever they were arguing about, while the man in the green shirt appeared scared. After being waved through by the man in the black shirt, Cody saw two other men coming out of a house, heading toward the confrontation.
After the homicide, detectives showed Cody a six-pack lineup. Before doing so, Cody read and initialed a standard admonishment form. Cody then identified the larger Hispanic male he had seen arguing in the street as the person in photo number 3, whom he identified in court as defendant.
Pathologist Jolie Rodriguez performed the autopsy on Leonard. Dr. Rodriguez stated Leonard was about five foot, five inches tall, and weighed about 136 pounds. Dr. Rodriguez observed Leonard had an entrance-type gunshot wound to his right chest, and an exit wound on his left back. Using a probe to trace its path, Dr. Rodriguez opined that the bullet "traveled through the trunk," "hit the liver, part of the vertebral column," then "went through the abdominal aorta" and "injured the left kidney," causing Leonard massive blood loss and his death within minutes.
Senior investigator Todd Wishart of the Riverside District Attorney's Office testified he was familiar with an SKS semi-automatic rifle because he owned one. According to Investigator Wishart, an SKS is a "common, cheap rifle," fires 7.62-by-39 cartridges, and ejects the expended shell casing when fired.
Police confiscated a cellphone from defendant's person on the day of his arrest. That cellphone was then analyzed by a member of the Riverside County Sheriff's Department Computer and Technology Crime High Tech Task Force. In addition to finding many personal photographs among the 25,000 or so images recovered from the cellphone, police also found about four or five photographs of particular interest in this case.
Investigator Wishart identified a gun in one such photograph as being a "converted" SKS rifle, as it had an "AK magazine," allowing the weapon to fire more rounds than a standard SKS, and a "black stock, possibly like a plastic stock." In another such photograph, Investigator Wishart identified the same SKS rifle from the previous photograph, but without its "butt stock."
During a walk-through of the homicide scene, Banning police detectives located a surveillance camera at the south end of District's maintenance yard. Detectives reviewed footage from that camera for a two-hour window, when the homicide would have taken place. Detectives found the actual video for that time period was only about 39 minutes long because the camera was activated only when it detected motion. Detectives also found 14 "breaks" in the video for the two-hour period.
Because Leonard "was found at the far south end of the dirt lot that is south of [District's] bus depot," detectives determined the camera had difficulty picking up movement, and thus recording such movement, in the location where Leonard was shot. Detectives found that, after police arrived and began investigating the homicide, the camera at times did not activate, despite the presence and movement in the area of multiple police officers and their vehicles, firetrucks, and emergency personnel. Detectives concluded the camera was located too far away from the homicide to be of much assistance in their investigation.
The record shows the defense presented evidence in an attempt to show the shooter was an African American male who drove an old "junky car" that may have had a flat tire. Such record evidence, to the extent relevant to the issues raised on appeal, will be discussed post in connection with those issues.
DISCUSSION
I
The Court Did Not Err in Failing to Give a Curative Instruction After Excusing a
Prospective Juror for Cause
A. Additional Background
The record shows that 18 prospective jurors out of a jury pool of about 100 were seated in the jury box to be questioned for cause, first by the court and then by counsel. The court explained such questioning was "intended to try to determine if there's a legal disqualification of a potential juror to serve in this particular case," noting some of the questions might be personal. The court then discussed the presumption of innocence, including reading a portion of CALCRIM No. 220 titled "Reasonable Doubt"; and continued with a series of open-ended questions, including whether any of the 18 prospective jurors had any connection with law enforcement, the court, or the practice of law.
The record shows several prospective jurors responded to this particular triad of questions. Several prospective jurors noted they had family members and close friends in law enforcement, including prospective juror (PJ) C., whose statements are at issue in this appeal. PJ C. informed the court his father, brother, uncles, and cousins were all in law enforcement, and he was a veteran. In response to the court's questioning, PJ C. stated he could be fair and impartial, then added, "But I do feel that most times if there's enough evidence to bring it to a charge, that more often than not that person most likely did it."
Based on his response, the court asked PJ C. whether he could afford defendant "the presumption of innocence and require the People to prove [defendant's] guilt beyond a reasonable doubt?" PJ C. stated, "Yes," then reiterated his view that the case would not have "gotten this far unless there is evidence." The court stated it had no more questions for PJ C., but the attorneys likely would.
The court then asked the 18 prospective jurors additional questions, including whether any of them had a "personal reason, moral, philosophical, or religious reason why" he or she would be unable to "sit in judgment in this particular case?" In response to this question, PJ R. stated, "And as far as whether or not I would be able to be fair, I know the question came up several times about what weight I might give a police officer over a normal citizen as far as testimony goes. And if I'm being honest, I think I would probably give a police officer a little more weight, credibility, than just a regular citizen. I just thought you should know."
PJ C. also responded to this question. After identifying particulars about himself, including his marital and employment status among other details, he said, "And for number seven [of the court's standard questions] I can be fair. But I do support law enforcement, so I do hold them with a higher regard than a regular person."
Another panel member, PJ B., stated that she was retired from the San Bernardino probation department. PJ B. admitted that, because she had worked for years with law enforcement and was "so closely aligned with them," she "tend[ed] to favor the . . . law enforcement side." PJ B. also stated she would "try" not to favor law enforcement, but "in all honesty" was not sure she could do so.
Other prospective jurors echoed the same sentiment as PJ B. PJ J. admitted she "lean[ed] toward law enforcement more than, you know, regular citizens." PJ R. held a similar view. PJ P. stated she had a child in law enforcement and, on further questioning by the court, admitted she held "law enforcement very high" and was uncertain whether she could fairly and impartially sit as a juror.
The record shows the court then turned the questioning over to counsel. Defense counsel immediately took up the issue of "bias," thanking the prospective jurors for their candor. Defense counsel then extensively questioned many of the prospective jurors who for one reason or another indicated a bias in favor of law enforcement, including PJ C.
When asked about bias, PJ C. stated that he felt the same as many of the other prospective jurors who already had spoken up; that he knew under the justice system that a person was innocent until proven guilty, but that because of his knowledge of law enforcement, including from his father, his view was "law enforcement's right" most of the time; and that, although he "hate[d]" to admit it, in his view a person had to prove his or her innocence, and not vice versa. PJ C. also stated these principles were "imbedded" in him by his family. PJ C. then added, "But I do feel that I'm a fair person. So if the evidence is not there, then it's not there."
After additional questioning, defense counsel asked if any member of the panel felt the same way as PJ C., noting PJ C. was "very straightforward and said most likely [defendant] did it if he's gotten this far." Defense counsel then asked PJ Q., "[H]ow do you feel about that statement [by PJ C.]?" PJ Q. responded, "As far as the charge for this case?" Defense counsel replied, "Is it hard to presume my client innocent when he's the only one who's charged and sitting here?" PJ Q. answered, "The only one charged is a little—yeah—just the way that my—if you were to resort to violence and you're charged with that violence, I would think that you're the one that did it. Yeah."
After a long statement by defense counsel (of which there were many), and after telling PJ Q. she appreciated his "honesty," defense counsel asked this prospective juror if he was "having trouble" presuming defendant was innocent of murder, to which juror PJ Q. answered, "Yes." Once again defense counsel asked the panel, "Anybody else feel that way?" Defense counsel then made another lengthy statement, touching on issues such as burden of proof, the moral implications of murder, and the requirement that the prosecutor prove all elements of the crime beyond a reasonable doubt "even if we have someone who's deceased." Defense counsel then commented, "Any of you feel like, look, I need to hear everything. If you're keeping information from me, that's something I'm going to hold against you."
The record shows PJ T. then spoke up, stating, "I'm one of these that I'm bad at making decisions as it is in my own life. And I would have to have absolute—you know, I mean, convincing that the person's not guilty." When defense counsel replied that the Constitution "work[ed] . . . backwards" and afforded an accused the presumption of innocence, PJ T. stated, "I know" and added, "It's just my personal—I mean, I try not to be like that. I don't like being like that, but it's something that it has to be in black-and-white and proven."
The record shows defense counsel asked the other prospective jurors if anyone else felt like PJ T. PJ J. stated she was "okay" deliberating, but concerned it would be hard for her to speak up and "come to an agreement" if sitting on a jury. Defense counsel replied, "Okay. Well—and you're not required to reach an agreement," then added, "And we're not looking for sheep; right? We're looking for shepherds all. We want twelve people that can reach their own minds [sic] and work with others." PJ J. then noted that her great uncle was a corrections officer, that her dad looked up to his uncle, and that when she "see[s] law enforcement, it [was] like okay, you're the good guy. That's just basically how it is. You're the good guy." Defense counsel thanked PJ J. for being "straightforward."
The prosecutor next addressed the prospective jurors, reiterating that the presumption of innocence was "one of the cornerstones, one of the bedrocks" of the justice system. The prosecutor pointed out to PJ C. that it was very difficult to prove a negative, namely for a person on trial to show he or she was not guilty, and that is why "[e]very criminal trial in every court in this country starts with the presumption of innocence."
After the prosecutor asked PJ C. if he could follow the presumption of innocence, PJ C. answered "Yes," then stated, "Earlier I was stating that, statistically speaking, if there's—get to this point. I remember reading articles or something high, like, 96, 98 percent, something like that, where they have a certain amount of felony cases, they end up being either pled out or they are guilty. It's, like, less than one percent were acquitted thereafter. I'm just saying, if there's a lot of evidence gathered for someone, most likely getting to this point, odds are they're guilty. But I understand there are people that are innocent. I'm not blind to that. I see that even though people get charged, sometimes they are innocent."
On further questioning, PJ C. agreed that he could keep an open mind, listen to the evidence, and follow the law as instructed by the court. The record shows the prosecutor went on to question many other prospective jurors, repeatedly noting the importance of the presumption of innocence and reiterating that it was "paramount" that defendant receive a "fair trial."
Outside the presence of the jury, the court reviewed the challenges for cause. After going through various prospective jurors, the court turned to PJ C. Defense counsel asked the court to excuse PJ C., stating as follows: "He was very clear from the very beginning of the day that most likely my client did it if he got this far. I explained the burdens of proof throughout—majority of the legal system with him, and he still was clear from his perspective, based upon his experience, that he does not agree with us that my client is presumed innocent at this point. He even—further examination by the prosecutor, he even talks about misquotes of the statistics from our county from the newspaper severely. He's missing out a part where 96 to 97 [percent] of people plea and we win half of our trials. He's talking about one percent, so that's a grave error on his part which does show he's biased. It's very clear he will not follow the presumption of innocence. And he's pro law enforcement, and he also talked about law enforcement having advantage routinely."
The court stated it was concerned by PJ C.'s "statistics" statement. The prosecutor in response argued that PJ C. repeatedly agreed he could be "fair," could and would follow the court's instructions, and would vote to acquit if the prosecution had not proved its case beyond a reasonable doubt. Defense counsel disagreed, stating that she was "offended by the statistics statement" and that she "was pondering a motion for mistrial or restarting with our jury panel [because i]t's so misleading and he is saying it in front of our entire panel." (Italics added.) Defense counsel then added, "I think [the] Court should consider not only striking [PJ C.] for cause but some form of curative instruction for the rest of the panel related to the things he said." (Italics added.) Defense counsel did not, however, offer any suggestions regarding the contents of such an instruction.
The court replied as follows: "I think that [the prosecutor] did a pretty good job of rehabilitating [PJ C.]. His position was similar to that of [PJ R.] in his initial statements. I remain troubled by the reference to statistics and I'm concerned that [PJ C.], in the face of other agreements with [the prosecutor and defense counsel] to apply the presumption of innocence, nevertheless stated that, statistically, most cases result in a conviction. I'm concerned that he would apply those statistics to his analysis of this case. I'm going to grant the challenge to [this juror]."
The record shows the court then excused PJ C. and two other prospective jurors, thanking them for their service. The court did not give any curative instruction to the remaining jurors with respect to anything said by PJ C., or, for that matter, by the other two excused jurors. Nor did defense counsel then ask for a sidebar or request the court give such an instruction or admonition.
B. Guiding Principles
A criminal defendant has the constitutional right to a determination of guilt or innocence by a fair and impartial jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16; People v. Wheeler (1978) 22 Cal.3d 258, 265; People v. Martinez (1991) 228 Cal.App.3d 1456, 1459-1460 (Martinez).) " ' "The right to a fair and impartial jury is one of the most sacred and important of the guaranties of the constitution. Where it has been infringed, no inquiry as to the sufficiency of the evidence to show guilt is indulged and a conviction by a jury so selected must be set aside." [Citations.]' [Citation.]" (Martinez, at p. 1460.)
Although defendant's claim of error on appeal is limited to the court's failure to give some sort of curative instruction to the remaining prospective jurors after PJ C. had been excused, we note that defense counsel also was "pondering" whether to ask the court for a mistrial and/or to "restart[]" voir dire with an entirely new panel.
It is axiomatic that a trial court's refusal to dismiss the entire jury panel based upon comments from a prospective juror is reviewed for abuse of discretion under the totality of the circumstances. (People v. Nguyen (1994) 23 Cal.App.4th 32, 41-42 (Nguyen).) We conclude the court's (alleged) failure to give a curative instruction to the remaining prospective jurors should be reviewed under the same discretionary standard.
A court "possesses broad discretion to determine whether or not possible bias or prejudice against the defendant has contaminated the entire venire to such an extreme that its discharge [or some other relief such as a curative instruction] is required." (See People v. Medina (1990) 51 Cal.3d 879, 889.) As this deferential review standard implicitly recognizes, the "trial judge is in the best position to assess the state of mind of a juror or potential juror on voir dire examination. [Citations.]" (People v. McPeters (1992) 2 Cal.4th 1148, 1175, questioned on another ground as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106, superseded by statute on another ground as stated in People v. Thompson (2016) 1 Cal.5th 1043, 1093.) The court's ruling on whether such bias or prejudice exists will be reversed only upon a clear showing of an abuse of discretion. (See Martinez, supra, 228 Cal.App.3d at pp. 1466-1467.)
A trial court also has wide discretion in deciding what questions should be asked on voir dire to determine potential jurors' biases, and it abuses that discretion " 'if its failure to ask questions renders the defendant's trial " 'fundamentally unfair' " or " ' "if the questioning is not reasonably sufficient to test the jury for bias or partiality." ' " ' [Citations.]" (People v. Harris (2013) 57 Cal.4th 804, 831.)
The case of People v. Cleveland (2004) 32 Cal.4th 704 (Cleveland) informs our analysis on this issue. In Cleveland, a prospective juror in a capital case, who "was a retired law enforcement officer with substantial experience in homicide cases" and who had testified in court more than a "thousand times," stated during voir dire that the "death penalty was too seldom used due to legal obstructions, and that he would be unfair to the defense based on his knowledge of how these trials were conducted." (Id. at p. 736.) The court excused him for cause. The defendant did not move to dismiss the venire or admonish the panel. (Ibid.)
Relevant to the instant case, our high court in Cleveland found the prospective juror's statements did not taint the entire venire, reasoning: "Many prospective jurors express many different general opinions regarding the judicial system. These expressions of opinion do not taint the jury. The comments here did not give the other prospective jurors information specific to the case, but just exposed them to one person's opinion about the judicial system. [Citation.] The circumstance that this particular opinion came from a retired peace officer with experience in homicide cases and trial proceedings does not change matters. It would no more prejudice a jury panel to hear that a retired (or active) peace officer believes the system is tilted in favor of defendants than to hear a criminal defense attorney express the opposite view." (Cleveland, supra, 32 Cal.4th at p. 736.)
In Nguyen, supra, 23 Cal.App.4th 32, the court during venire advised prospective jurors that the defendants and many of the witnesses were Vietnamese, and the media had been highlighting robberies in the Vietnamese community. The court asked if any of the prospective jurors held biases against people of Vietnamese decent. A prospective juror said he was Vietnamese and mentioned retaliation. The court asked if he feared retribution or retaliation if he sat on the jury. The prospective juror said that he did not know; and that he might feel discomfort sitting on the jury, but felt could render an impartial verdict. The defendant used a peremptory challenge to excuse him, and then moved to discharge the entire venire, claiming the court's questions were inflammatory and prejudiced the entire panel. The court denied the motion. (Id. at pp. 40-42.)
Nguyen concluded the court did not abuse its discretion in denying defendant's discharge motion. Similar to the reasoning of the Cleveland court, the court in Nguyen recognized the prospective juror's statements "did not contain any information which suggests the entire panel would have been prejudiced against [the defendant]. Unlike [the defendant], we do not view [the prospective juror's] comments as being particularly 'inflammatory.' [The prospective juror] stated that he might fear retaliation since he belonged to the Vietnamese community but he nonetheless informed the court that he could be fair . . . ." (Nguyen, supra, 23 Cal.App.4th at p. 41.) Nguyen noted the prospective juror was excused, and his statements would not have affected the rest of the jury panel. (Id. at p. 42.)
In Martinez, supra, 228 Cal.App.3d 1456, 1459, the defendant argued that prospective jurors made various statements that "tainted the entire jury panel because they were inflammatory, hostile and biased against him and the criminal justice system." Not unlike some of the comments made by prospective jurors in the instant case, the statements in Martinez showed that prospective jurors had "strong opinions about persons charged with crimes, about the criminal justice system, about defendants who do not speak English, and about police officers." (Id. at p. 1461.) The defendant in Martinez moved to excuse several people for cause. The court granted the motion to excuse all but one. Thereafter, the defendant moved to discharge the entire panel and argued the comments had been so inflammatory that no one who remained on the panel could be unbiased. The court denied the motion. (Id. at pp. 1461, 1463.)
Based on the totality of the circumstances surrounding jury selection, the Martinez court concluded the trial court did not abuse its discretion in refusing to discharge the entire panel. (Martinez, supra, 228 Cal.App.3d at p. 1465.) In reaching its conclusion, the Martinez court recognized that many of the prospective jurors' " 'hostile comments' " were made in response to defense counsel's questioning (ibid.), and that such questioning was a benefit to the defendant noting: "Defense counsel has both the right and responsibility to probe a potential juror's mind in order to determine whether that juror can be fair and impartial. Sometimes counsel hits the proverbial pay dirt. Some members of a community are of the opinion the criminal justice system does not work, believe all criminal defendants are guilty and believe law enforcement is infallible. The purpose of questioning by the court and counsel is to convince jurors to reveal their thoughts and opinions candidly. This is to the criminal defendant's advantage since jurors who reflect such attitudes can be discovered and eliminated from the process. Although the trial court has the authority and obligation to guide and control voir dire proceedings, discretion must be exercised in a manner which is not inconsistent with counsel's right to reveal the full extent of juror bias." (Ibid.)
In further support of its decision, the Martinez court noted that defense counsel questioned the remaining jurors regarding the impact of the "hostile comments" (Martinez, supra, 228 Cal.App.3d at p. 1465); that the record showed the remaining jurors were unaffected by the opinions expressed by those jurors who had been excused; that defense counsel then questioned the remaining jurors regarding their understanding of the presumption of innocence and the prosecution's burden of proving guilt beyond a reasonable doubt; and that the responses to those questions did not reflect a bias or prejudice against the defendant. (Ibid.) The Martinez court thus rejected the defendant's argument that "actual prejudice" had resulted from the offensive comments made by the excused jurors (ibid.), noting to find otherwise would require the court to "ignore or discount the answers given by the remaining jurors" (ibid), and instead "presume the responses to counsel's questions were not candid or the jurors were subconsciously and irrevocably indoctrinated by the views expressed." (Ibid.)
C. Analysis
Turning to the instant case, the record shows that defense counsel's "request" for a mistrial, or to dismiss the entire jury panel, or to give the remaining prospective jurors a curative instruction—ostensibly as a result of PJ C.'s "statistics" statement—was at best ambiguous.
We say "ostensibly" because it appears the "statistics" statement was the primary reason for defense counsel's request for a curative instruction, inasmuch as the record shows that the court also was concerned about this particular comment.
Indeed, as summarized ante, outside the presence of the prospective jurors defense counsel stated that she was "pondering" making a request for a mistrial, and that the court should "consider" a curative instruction. The record also shows that once the court dismissed PJ C. along with two other prospective jurors, defense counsel did not remind the court of her "request" for a curative instruction or ask for any similar relief such as an admonishment.
Thus, it appears from the record that defense counsel left the issue of whether to give such an instruction up to the sound discretion of the trial court. It appears from the record the court did not believe such an instruction was necessary, however, as the court was of the view that the prosecutor had done a "pretty good job rehabilitating" PJ C. in front of the other jurors. For this reason alone, we reject this claim of error.
However, even if we assume defense counsel actually requested the court give a curative instruction in connection with PJ C.'s "statistics" statement, we conclude the court as an exercise of its discretion properly "denied" or "refused" that request. (See Nguyen, supra, 23 Cal.App.4th at pp. 41-42 [reviewing for abuse of discretion a court's decision not to dismiss an entire jury panel based upon comments made by a prospective juror].)
First, viewing the circumstances surrounding the jury selection as a whole, PJ C. never claimed to be an expert in criminal justice when making his views known, nor did such statements take on an expert-like quality, including when he made his "statistics" statement that he claimed was based on some generic article or articles he did not identify. (Compare, Mach v. Stewart (9th Cir. 1998) 137 F.3d 630, 631-633 [finding district court erred in denying the defendant's motion for mistrial based on a prospective juror's repeated "expert-like statements" that, in her role as a social worker in cases where a child accused an adult of sexual misconduct, which was the subject matter of the case involving the defendant, "she had never known a child to lie about sexual abuse"].)
Indeed, PJ C. was clear that his views instead had been "imbedded" in him by his father and other family members, all of whom were in law enforcement. PJ C.'s "general" comments about the justice system were merely his opinion, not unlike the comments made by the retired homicide investigator in Cleveland who had testified in court more than a "thousand times." (See Cleveland, supra, 32 Cal.4th at p. 736; Martinez, supra, 228 Cal.App.3d at p. 1465 [recognizing that it is to the benefit of a defendant that prospective jurors "reveal their thoughts and opinions candidly" in voir dire].)
Second, although we mean no disrespect, we note PJ C.'s "statistics" statement was somewhat nonsensical, as he claimed that a defendant in a criminal trial could expect to be acquitted of a crime "less than one percent" of the time. Third, the "statistics" statement was fleeting, and, immediately after PJ C. made it, without any prompting he added he was "not blind" to the fact that people charged with crimes can be innocent. PJ C. also agreed on further questioning by the prosecutor that he could be fair and impartial and follow the law as instructed by the court.
Fourth, we do not find the "statistics" statement by PJ C. to be "particularly 'inflammatory.' " (See Nguyen, supra, 23 Cal.App.4th at p. 41.) The record also shows that PJ C. was not alone in tending to favor law enforcement over an ordinary citizen, or in expressing concerns about applying the presumption of innocence, as PJs R., B., J., T., and P. each made somewhat similar statements.
Fifth, the record shows that, while the court had concerns about PJ C.'s use of statistics, including whether this prospective juror would rely on statistics, as opposed to the law, in deciding guilt or innocence, the court also found the prosecutor had done a "pretty good job" of rehabilitating PJ C., as noted ante. Thus, while the court agreed PJ C. should be excused for cause, the record supports the finding the court was not particularly troubled by the statements made by PJ C.
Sixth, the record shows that after PJ C. and others were excused for cause, the court and counsel continued questioning the prospective jurors, emphasizing the need for jurors to be fair and impartial and follow the law, including the presumption of innocence. The responses of the remaining jurors do not show a bias or prejudice against defendant, or otherwise suggest he would not receive a fair trial.
Following the reasoning in Martinez, we decline to find defendant was actually prejudiced by PJ C.'s fleeting "statistics" statement, as doing so would require us to ignore or discount the answers given by the remaining jurors, and instead speculate they were "subconsciously and irrevocably indoctrinated" by PJ C.'s views and statements. (See Martinez, supra, 228 Cal.App.3d at p. 1465.)
Seventh, as noted the record shows the court during voir dire gave a portion of CALCRIM No. 220, titled "Reasonable Doubt." The court also gave CALCRIM No. 220 in its entirety when instructing the jury before it deliberated. This instruction provides: "The fact that a criminal charge has been filed against the defendant[s] is not evidence that the charge is true. You must not be biased against the defendant[s] just because (he/she/they) (has/have) been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt [unless I specifically tell you otherwise].
"Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant[s] guilty beyond a reasonable doubt, (he/she/they) (is/are) entitled to an acquittal and you must find (him/her/them) not guilty."
We presume the jury followed the court's instructions (see People v. Avila (2006) 38 Cal.4th 491, 574); nor is there anything in the record to suggest otherwise. Based on these reasons, we conclude the court properly exercised its broad discretion when it (tacitly) found there was no bias or prejudice against defendant which contaminated the entire venire to such an extreme that its discharge—or, as in the instant case, a curative instruction—was required based on PJ C.'s fleeting "statistics" statement.
Finally, the evidence of defendant's guilt was strong. As summarized ante, defendant became angry and wanted to fight Leonard because defendant believed Leonard previously had stolen property from Fernando. Ignoring Fernando, defendant "took off his watch," confronted Leonard in the middle of the street, and got in Leonard's "face" while making accusations against him. Multiple witnesses, including defendant's brothers and various third parties, stated that defendant was the aggressor and that Leonard was backing up and trying to avoid the confrontation with defendant, who had consumed about 80 ounces of beer.
Both of defendant's brothers admitted being angry at defendant for causing the confrontation, as Daniel's children were outside when it occurred, and Fernando and his partner were expecting a child and did not want such "problems" in front of their home. Daniel also told police that immediately after the confrontation, defendant exclaimed he was going to "kill" Leonard.
After the confrontation ended with Leonard attempting to shake the hand of Daniel and Fernando and agreeing to avoid the area in the future, defendant went into his mother's home and, about five minutes later, left in his silver Chrysler 300, with tinted windows and chrome rims, headed in the same direction as Leonard. Shortly thereafter, residents across the street from a dirt lot heard a single "bang" or "pop" sound, and saw a silver Chrysler 300—matching the description of defendant's—speeding away in the wrong lane, headed eastbound on East Barbour Street. Witnesses then saw a man wearing a green shirt lying partly on a sidewalk and partly in the dirt lot. About five feet from the victim was a large spent bullet casing, later identified as a 7.62-millimeter caliber.
But that's not all. Banning police found an abandoned Chrysler 300—missing its front license plate and backed into a cul-de-sac—two days after the homicide, which turned out to be defendant's car. Inside the car police found gunshot residue. On arrest in San Diego, police also recovered a cellphone from defendant's person, which included photographs of an SKS rifle, which was capable of firing the large spent casing found near the victim. Daniel admitted to police that in the past his brother Alejandro had shown him an SKS rifle defendant kept in his bedroom, and that defendant also kept guns in his car.
Based on the foregoing evidence, and recognizing that the jury acquitted defendant of premediated murder and convicted him of the lesser included offense of second degree murder, we conclude it is not reasonably probable defendant would have obtained a more favorable result had voir dire proceeded differently. (See People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) We thus find that, even if the court erred in failing to give some sort of curative instruction, it was harmless in light of the overwhelming evidence of defendant's guilt.
In light of our decision on the merits, we deem it unnecessary to reach defendant's alternate contention that he allegedly received ineffective assistance of counsel with respect to this claim of error.
II
The Court Did not Err In Giving CALCRIM No. 225 Instead of CALCRIM No. 224
A. Invited Error/Forfeiture
Defendant next contends the court committed instructional error when it gave the wrong instruction concerning reliance on circumstantial evidence. Defendant further contends there was "no on-the-record discussion about which instruction to give," as both parties had requested CALCRIM Nos. 224 and 225 be given.
The record, however, shows that when discussing the jury instructions outside the presence of the jury, the following colloquy occurred:
"The Court: All right. Let me just go through numerically. I think most of these don't need any comment. [¶] 200. CALCRIM 201. CALCRIM 202. CALCRIM 220. CALCRIM 222. . . .
"[¶] . . . [¶]
"The Court: All right. 223, Direct and Circumstantial. We have 224 and 225. Usually, I just give one. What's your position on that, Ms. Vierra [i.e., defense counsel]?
"Ms. Vierra: I think 225 is the proper instruction.
"The Court: All right.
"Ms. Vierra: Because we have mental state as an issue.
"The Court: Mr. Brandon [i.e., the prosecutor]?
"Mr. Brandon: I agree.
"The Court: I'll withdraw—is 224 withdrawn then? Okay. [¶] 225 will be given." (Italics added.)
The record thus clearly shows that defense counsel agreed that CALCRIM No. 225, and not CALCRIM No. 224, should be given because defendant's "mental state" was "an issue." As such, we conclude defendant on appeal invited the error he now complains about, and that such error is forfeited. (See People v. Wader (1993) 5 Cal.4th 610, 657-658 [noting when a "defense attorney makes a 'conscious, deliberate tactical choice' to forego a particular instruction, the invited error doctrine bars an argument on appeal that the instruction was omitted in error," and further noting when "defense counsel makes an equally conscious and deliberate tactical choice to request a particular instruction—such as the instruction defense counsel specifically requested here—there is no reason to apply a different rule"].)
However, to forestall any claim of ineffective assistance of counsel, we turn to the merits of this claim of error.
B. Guiding Principles and Analysis
We review instructional error that constitutes " 'misdirection of the jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not amount to federal constitutional error . . . under the harmless error standard articulated' in Watson." (People v. Larsen (2012) 205 Cal.App.4th 810, 829 (Larsen); see People v. Palmer (2005) 133 Cal.App.4th 1141, 1157.) Despite defendant's claim to the contrary, we conclude the harmless error standard articulated in Watson applies here because the claimed instructional error did not relieve the prosecution of the burden of proving beyond a reasonable doubt each essential element of the charged offense or improperly describe or omit an element of an offense. (See Larsen, at p. 829.)
CALCRIM No. 224 provides: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
"Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
CALCRIM No. 225, as given here, provides:
"The People must prove not only that the defendant did the acts charged, but also that he acted with a particular intent and/or mental state. The instruction for the crime and allegation explains the intent and/or mental state required.
"An intent and/or mental state may be proved by circumstantial evidence.
"Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
"Also, before you may rely on circumstantial evidence to conclude that the defendant had the required intent and/or mental state, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent and/or mental state. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent and/or mental state and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required intent and/or mental state was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
It is axiomatic that a trial court must instruct the jury on the general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) This includes the duty to instruct on how to evaluate circumstantial evidence if the prosecution relies substantially on such evidence to prove any element of the case. (See People v. Yrigoyen (1955) 45 Cal.2d 46, 49). CALCRIM No. 223, which also was given in the instant case, defines direct and circumstantial evidence and explains that "[b]oth direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other."
Here, we need not decide whether the court erred in giving CALCRIM No. 225 in lieu of CALCRIM No. 224 because we conclude any such error was not prejudicial. CALCRIM Nos. 224 and 225 provide essentially the same information on how the jury should consider circumstantial evidence (People v. Contreras (2010) 184 Cal.App.4th 587, 592 (Contreras)); and neither delineate or describe an element of an offense. (See Larsen, supra, 205 Cal.App.4th at p. 830 [noting CALCRIM No. 3428 (applicable to the defense of lack of intent due to mental impairment), was a "pinpoint instruction relating particular facts to a legal issue in the case," and therefore it did not "involve a ' "general principle of law" ' as that term is used in cases that impose a sua sponte duty of instruction on the trial court"].) The only difference between the two instructions is that CALCRIM No. 225 specifically focuses the jury on the intent and/or mental state elements, while still informing the jury the People must prove defendant also "did the acts charged." (See Contreras, at p. 592.)
Moreover, the record shows the jury was properly instructed regarding the prosecution's burden to prove beyond a reasonable doubt that defendant was the person who committed each element of the charged offense. The record also shows that the defense focused on the issue of identity, including in closing when defense counsel argued that, while it was "understandable that [defendant] was a suspect since these passerby [sic] saw him in this verbal dispute" with Leonard, defendant was not the person who shot the victim; and that other witnesses identified the shooter as African-American, which was repeated in police "radio traffic."
The record also shows defense counsel in closing talked about the circumstantial evidence jury instruction as follows: "Lens number one. Circumstantial evidence. Easy to digest. So we don't have to read the whole thing again. If there are two or more reasonable conclusions—such as that casing came from an SKS, or it came from one of the other 74 potential guns—you are required to assume the innocence conclusion. Required. Okay.
"Likewise, when you're talking about gunshot residue. We don't know when it got there. We don't know how it got there. Even Quantico's FBI lab got contaminated. And we have Sergeant Segura[, a detective in the Banning Police Department], who talked about having her gun on her hip. Whether she's wearing gloves or not, if she's touching that, she's in an environment with gunshot residue, if that's how our five little microns got there. You're required to use circumstantial evidence and accept the innocent conclusion.
"You're being asked to muddy the waters, to put it all together as a package. You don't do that until you use your first lens that you look through, which is circumstantial evidence. If a fact doesn't pass through this filter, it does not go into beyond a reasonable doubt.
"That's what we have next as our second filter. You need proof beyond a reasonable doubt of each element of each charge."
In rebuttal, the prosecutor noted the defense's reliance on CALCRIM No. 225 in closing. In response, the prosecutor argued as follows: "Missing pieces and questions do not equal reasonable doubt. So when Ms. Vierra gave you the jury instruction 225, circumstantial evidence. And you heard this quite a bit about you have to pick the interpretation that goes with innocence as opposed to guilt if you have two reasonable interpretations. Well, that's only part of the instruction. That's not the entirety of the instruction.
"Starts right here. If you can draw two or more reasonable conclusions from the circumstantial evidence and one of those reasonable conclusions supports a finding that the Defendant in this case is not guilty, you must conclude that—you essentially must go with the version that finds him not guilty.
"So you have two reasonable interpretations and one says guilt and one says not guilty, you have to go with not guilty. But the very last line is very telling because it clarifies so there's no confusion. And it says, 'However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.'
"Your job as jurors is not just considering things that are possible. You have to consider things that are reasonable. And that's the distinction. That's the key distinction you have to make in a case like this."
Thus, the record shows the defense relied on CALCRIM No. 225 in aggressively arguing that defendant was not guilty, and that there was insufficient circumstantial evidence viewed through "lens one" to show he was the shooter, as the case was one of mistaken identity. The record also shows the prosecutor in rebuttal responded to this argument by informing the jury there was sufficient circumstantial evidence to prove defendant's guilt beyond a reasonable doubt.
Based on this record, we conclude it is not reasonably probable that defendant would have obtained a more favorable outcome had the alleged instructional error not occurred. (See People v. Jones (2012) 54 Cal.4th 1, 53 [instructional error evaluated under Watson's reasonable probability standard]; Larsen, supra, 205 Cal.App.4th at p. 829 [applying the Watson standard of review because the jury was correctly instructed regarding the intent element of various offenses].)
Because we reached the merits of this issue, we deem it unnecessary to resolve defendant's alternate argument that he received ineffective assistance of counsel with respect to this claim of error.
DISPOSITION
The judgment is affirmed.
BENKE, J. WE CONCUR: McCONNELL, P. J. IRION, J.