Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCE272256, Allen J. Preckel, Judge.
IRION, J.
A jury convicted Ryan Patrick McAdams of burglary (Pen. Code, § 459) and the use of tear gas for purposes other than self-defense (§ 12403.7, subd. (g); see also § 12401 [defining " '[t]ear gas]' "]). The jury also found true an allegation that the burglary was of an inhabited dwelling (§ 460), that a person other than an accomplice was present in the dwelling (§ 667.5, subd. (c)(21)), and that McAdams personally used a dangerous weapon (tear gas) (§ 12022, subd. (b)(1)). The trial court sentenced McAdams to three years of probation and required him to serve 120 days in custody at a work-furlough facility.
All statutory references are to the Penal Code unless otherwise indicated.
McAdams appeals, contending that his convictions must be reversed due to the trial court's instructional errors. Specifically, McAdams argues that the trial court erred by (i) failing to instruct the jury to consider a prior assault suffered by McAdams in evaluating his claim of self-defense; (ii) instructing the jury that the right to use force in self-defense ceases to exist when the danger ends (CALCRIM No. 3474); (iii) instructing the jury that a person cannot claim self-defense if he provokes a fight or quarrel with the intent to create a justification for the use of force (CALCRIM No. 3472); (iv) instructing the jury to consider the evidence (as opposed to the potential absence of evidence) in determining whether the prosecution had proven his guilt beyond a reasonable doubt (CALCRIM No. 220); and (v) instructing the jurors to use their "common sense and experience" (i.e., information outside the record) in evaluating witness testimony (CALCRIM No. 226). As discussed below, we find these contentions to be without merit and affirm.
FACTS
On April 6, 2007, high school friends Devon Duby, Cody Minich and Devin Schneider, hosted a party at a residence in El Cajon. Among the invitees were Kenneth Niblack and McAdams's younger sister, Kelly. Kelly left the party prior to 11:00 p.m. At around that time, McAdams arrived at the party with a group of friends.
McAdams was carrying a canister the size of a small fire extinguisher filled with a type of pepper spray. Soon after entering the house, McAdams sprayed Minich (and the other attendees) with the pepper spray. After Minich was incapacitated by the spray, McAdams and a number of friends who had accompanied him to the party, began to hit and kick Minich. Duby came to Minich's aid and was sprayed in the face and beaten. McAdams also sprayed Schneider and beat him. Niblack grabbed a broomstick from outside the house and approached McAdams with it. McAdams tried to spray Niblack but the pepper spray canister was empty. McAdams threw a full beer can at Niblack, but missed; the can remained lodged in the wall. McAdams then left the party.
At trial, McAdams testified on his own behalf. He contended that he went to the party out of concern for his younger sister, Kelly. He explained that he brought a "larger size" canister of pepper spray that he had purchased at an army surplus store because he had been assaulted in an unrelated incident at a party a few years earlier. McAdams stated that when he arrived at the party, he approached Minich, tapped him on the shoulder and asked whether Kelly was there. McAdams thought that Minich "might have gotten the wrong idea" and began "eyeing some of his buddies." The attendees became aggressive, telling McAdams to leave and surrounding him. When people began pushing him, McAdams "maced down the crowd to knock them back." An altercation ensued and McAdams's "buddies came in and started fighting people back." Finally, McAdams's looked around for his sister and then left the house.
DISCUSSION
McAdams raises a number of challenges to the instructions provided by the trial court to the jury. We evaluate these challenges below, applying the de novo standard of review. (See People v. Guiuan (1998) 18 Cal.4th 558, 569 [claims of instructional error are reviewed de novo by appellate courts].)
A. The Trial Court Did Not Err by Failing to Sua Sponte Instruct the Jury to Consider a Prior Assault in Evaluating McAdams's Claim of Self-defense
McAdams contends that the trial court erred by failing to instruct the jury that in evaluating his claim of self-defense it should consider his testimony that he armed himself with pepper spray based, in part, on a past experience of being assaulted in an unrelated incident at a party. Because McAdams never requested any such instruction, we disagree.
"Trial courts only have a sua sponte duty to instruct on 'the general principles of law relevant to and governing the case,' " including the elements of the offense, recognized defenses and " 'the relationship of these defenses to the elements of the charged offense.' " (People v. Rubalcava (2000) 23 Cal.4th 322, 333-334 (Rubalcava), italics added; People v. Sedeno (1974) 10 Cal.3d 703, 716 ["The duty to instruct, sua sponte, on general principles closely and openly connected with the facts before the court also encompasses an obligation to instruct on defenses, including self-defense . . ., and on the relationship of these defenses to the elements of the charged offense"].) Legal principles not encompassed in this category, even if legally correct, need not be provided to the jury by a court on its own motion. So long as the trial court's charge to the jury is "correct in law and responsive to the evidence," a party may not complain on appeal that the instructions were "too general or incomplete unless the party has requested appropriate clarifying or amplifying language." (People v. Lang (1989) 49 Cal.3d 991, 1024.)
In the instant case, the trial court instructed the jury exhaustively on self-defense, using a number of standard instructions, including CALCRIM Nos. 3470, 3471, 3472 and 3474. The jury was also instructed that "[w]hen deciding whether the defendant's beliefs [in the need for self-defense] were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed."
As McAdams concedes, defense counsel did not object to these self-defense instructions or request any amplifying or clarifying instructions.
McAdams acknowledges that he did not object or request any amplification of the self-defense instructions in the trial court, arguing explicitly that "the trial court had a sua sponte duty to instruct on its own motion regarding the effect of the prior assault." He contends a sua sponte obligation arose because the instruction he now contends was necessary "involved a legal principle relevant to the jury's determination of the self-defense issue." The sole case cited by McAdams for this proposition is Rubalcava, supra, 23 Cal.4th 322. Rubalcava provides no support at all. That case simply recites the general legal standard noted above and then holds, in evaluating a completely different instruction than the one suggested here, that the trial court did not violate the standard by omitting it. (Id. at pp. 333-334.)
The instructions referenced above satisfied the trial court's sua sponte obligations to instruct on " 'the general principles of law relevant to and governing' " his claim of self-defense. (Rubalcava, supra, 23 Cal.4th at pp. 333-334.) The trial court had no further sua sponte duty to highlight for the jury the prior assault referenced in McAdams's testimony as one of "the circumstances . . . known to . . . the defendant" that could render his actions reasonable.
McAdams's briefing includes an extensive discussion of case law holding that prior assaults or threats by the victim (or the victim's associates) are relevant and admissible when a defendant claims self-defense. He then contends that a logical extension of this case law would support the admissibility of a prior assault by someone other than the victim "but under circumstances similar to those" in which the defendant found himself. (See People v. Humphrey (1996) 13 Cal.4th 1073, 1083 [when advancing a claim of self-defense, " 'a defendant is entitled to have a jury take into consideration all the elements in the case which might be expected to operate on his mind' "].) This discussion, however, misses the point. The question is not whether the evidence of the prior assault was admissible; there is no dispute that the trial court admitted testimony regarding the prior assault into evidence. The question is whether the trial court was also required to, sua sponte, single out that evidence in its instructions to the jury.
With respect to this point, McAdams cites a series of cases that he argues support his position that an instruction was warranted. None of these cases, however, concerned a trial court's failure to sua sponte instruct the jury, but rather concerned a trial court's refusal to instruct the jury upon request. (See People v. Moore (1954) 43 Cal.2d 517, 527 [trial court erred in failing to give requested instruction that jury could consider threats made by the victim against the defendant's life]; People v. Spencer (1996) 51 Cal.App.4th 1208, 1220 [trial court erred in declining to provide requested instruction to the jury regarding threats made by the victim against third persons, but concluding error was harmless]; People v. Pena (1984) 151 Cal.App.3d 462, 476 [trial court erred in declining to provide requested instruction regarding defendant's knowledge of antecedent threats by victim].) As McAdams candidly admits, there is no authority suggesting that the trial court has a sua sponte duty to instruct the jury as he now contends and, as we have stated, our Supreme Court's description of the general sua sponte instructional duties of a trial court demonstrates that no such duty exists.
The cited cases are also distinguishable because they each concerned threats or prior assaults by the victim, not, as is the case here, by an unrelated party.
In sum, to the extent McAdams "believed the instructions were incomplete or needed elaboration, it was his obligation to request additional or clarifying instructions." (People v. Dennis (1998) 17 Cal.4th 468, 514.) "His failure to do so waives the claim in this court." (Ibid.)
B. The Trial Court Did Not Err in Instructing the Jury that Self-defense Cannot Be Contrived and the Right to Use Force in Self-defense Continues Only As Long As a Danger Exists
McAdams contends that the trial court also erred in providing the jury with certain standard instructions on self-defense, CALCRIM Nos. 3472 and 3474, because those instructions had no application to the facts of his case. We disagree.
CALCRIM No. 3474 states: "The right to use force in self-defense continues only as long as the danger exists or reasonably appears to exist. When the attacker withdraws or no longer appears capable of inflicting any injury, then the right to use force ends." CALCRIM No. 3472 states: "A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force." The trial court gave both of these instructions to the jury without objection.
McAdams argues that these instructions were given in error because they had no application to the facts of his case and that this error was prejudicial because the superfluous instructions "interfered with the jury's objective consideration of [his] claim of self-defense" and could have been interpreted as improper judicial comment on the evidence. (See People v. Rollo (1977) 20 Cal.3d 109, 122-123 [recognizing that " '[i]t is error to give an instruction which correctly states a principle of law which has no application to the facts of the case,' " while noting that "such an error is usually harmless, having little or no effect 'other than to add to the bulk of the charge' "].)
In explaining his contention, McAdams argues that the jury was presented with two starkly contradictory versions of the altercation: (i) the victims' assertions that McAdams engaged in a wholly unprovoked assault upon them, and (ii) McAdams's contention that he resorted to force only after being attacked. Under either scenario, McAdams argues, there was no basis to conclude that McAdams engaged in the use of force after a preexisting danger had ceased or that he intentionally provoked anyone to justify a subsequent use of force in self-defense.
Even if we were to accept McAdams's oversimplified characterization of the two versions of the facts presented to the jury, we would reject his argument that the complained-of instructions were inapplicable to the facts of the case, and thus erroneous. McAdams's contention rests on the faulty assumption that the jury had only two options in determining the facts of the case: (i) to fully credit the prosecution witness's testimony; or (ii) to fully credit McAdams's own testimony. The jury was, in fact, under no such constraint.
It has long been established that "[t]he jury may accept as true a portion of the testimony of a witness and disbelieve the remainder or have a reasonable doubt as to its correctness." (People v. Crooker (1956) 47 Cal.2d 348, 355.) As our Supreme Court has explained: " '[T]he jury properly may reject part of the testimony of a witness, though not directly contradicted, and combine the accepted portions with bits of testimony or inferences from the testimony of other witnesses thus weaving a cloth of truth out of selected available material.' " (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67-68.) Indeed, the jury in the instant case was instructed on precisely this point. (See CALCRIM No. 226 ["You may believe all, part, or none of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe"].)
As a legal matter, then, the trial court in formulating jury instructions was required to consider the possibility that the jury would fully credit neither McAdams nor the prosecution witnesses and conclude that the facts lay somewhere in between their disparate accounts. In such a circumstance, the instructions McAdams now complains of could have concrete application to the case; for example, if the jurors felt McAdams suffered (or invited) some provocation by Minich or the other party attendees, but overreacted to any perceived need for self-defense.
Indeed, the instructions were particularly responsive to defense counsel's contention in closing argument that there must have been some provocation for McAdams's actions. Counsel emphasized that the prosecution witness's testimony that McAdams started spraying them with mace without any provocation was unbelievable, arguing, "Why is [McAdams] going to go in there and just spray these guys? It's completely unreasonable. It doesn't make any sense"; "Fights are never one-sided the way the prosecution wants you to believe"; "[I]t usually takes two to tango."
As the trial court had no way of predicting precisely how the jury would interpret the conflicting and, at times, ambiguous testimony, it acted in a perfectly proper manner: instructing the jury with the relevant legal principles and allowing the jurors to apply those principles it found applicable, depending on the facts found.
Significantly, the trial court did not suggest that all the instructions it provided were applicable. To the contrary, the court explicitly informed the jury:
"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."
(See CALCRIM No. 200; cf. People v. Olguin (1994) 31 Cal.App.4th 1355, 1381 (Olguin) [highlighting instruction to " '[d]isregard any instruction which applies to facts determined by you not to exist' " in determining that trial court did not err in providing instruction with "no antecedent in the facts of this case"]; cf. People v. Musselwhite (1998) 17 Cal.4th 1216, 1248 [" ' "[T]the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction" ' "].) This instruction eliminated any possibility that the jurors would take the complained of instructions as untoward judicial comment on the evidence and instead properly allowed the jury to apply the appropriate legal principles depending on the facts found.
McAdams argues that because the quoted instruction and the instructions he now complains about on appeal were given at different times, we cannot assume that the jury was able to coordinate their application. This argument is inconsistent with established law. (People v. Guerra (2006) 37 Cal.4th 1067, 1148-1149 ["In assessing whether the jury instructions given were erroneous, the reviewing court ' " 'must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given' " ' "].) Further, the trial court provided written copies of the instructions to the jury.
In sum, CALCRIM Nos. 3472 and 3474 had potential application to the factual scenario presented to the jury, and consequently their provision to the jurors was not erroneous.
The propriety of jury instructions depends on the unique facts of the case at hand, and thus McAdams's citation to various cases, all of which involve the propriety of instructions of varying degrees of similarity to the instructions at issue here in widely divergent factual scenarios, does little to support his claim. (See People v. Crandell (1988) 46 Cal.3d 833, 872-873 [finding error in provision of instruction on contrived self-defense harmless in cursory discussion of claim on divergent factual circumstances]; People v. Conkling (1896) 111 Cal. 616, 624 [rejecting propriety of different instruction in different factual scenario involving trespass on land by defendant]; People v. Armstrong (1951) 106 Cal.App.2d 490, 497 [discussing relevance of initial trespass in self-defense context]; People v. Campanella (1940) 39 Cal.App.2d 384, 387 [contrived self-defense instruction improper in distinct factual circumstances].)
C. The Trial Court Did Not Err by Instructing the Jury to Consider All the Evidence Received in the Trial in Determining Whether the Prosecution Proved Its Case Beyond a Reasonable Doubt
McAdams contends that the trial court instructions were erroneous because they "limited the jury's determination of reasonable doubt to the evidence received at trial and precluded it from considering the lack of other evidence proving that McAdams used tear [gas] other than in self-defense . . . ." We disagree.
The trial court instructed the jury, without objection, with two standard instructions that McAdams highlights for this contention. The first, CALCRIM No. 220, states that "[i]n 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." The second, CALCRIM No. 222, defines " '[e]vidence' " as "the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence." McAdams argues that cumulatively these instructions required the jury to overlook any perceived absence of evidence in evaluating the prosecution's case. (See Johnson v. Louisiana (1972) 406 U.S. 356, 360 [recognizing reasonable doubt "as one ' "based on reason which arises from the evidence or lack of evidence" ' "]; People v. McCullough (1979) 100 Cal.App.3d 169, 182 (McCullough) [noting that " 'reasonable doubt . . . may well grow out of the lack of evidence in the case as well as the evidence adduced' "], quoting People v. Simpson (1954) 43 Cal.2d 553, 566 (Simpson).)
As McAdams candidly recognizes, this same argument was considered, and rejected, by this court in People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510 (Westbrooks). Other California courts that have considered the challenge have reached the same conclusion. (See People v. Guerrero (2007) 155 Cal.App.4th 1264, 1269 [rejecting identical challenge to CALCRIM No. 220 on similar grounds]; People v. Flores (2007) 153 Cal.App.4th 1088, 1092 [same]; People v. Hernández Rios (2007) 151 Cal.App.4th 1154, 1157 [rejecting analogous challenge to CALCRIM No. 220].) We find these cases persuasive and adopt their reasoning.
As stated in Westbrooks, the language McAdams objects to
"merely instructs the jury that it must consider only the evidence presented at trial in determining whether the People have met their burden of proof. In other words, this instruction informs the jury that the People may not meet their burden of proof based on evidence other than that offered at trial. The instruction does not tell the jury that it may not consider any perceived lack of evidence in determining whether there is a reasonable doubt as to a defendant's guilt. Further, the remainder of the instructions clearly conveyed to the jury the notion that the People had the burden of proving [the defendant's] guilt beyond a reasonable doubt and that the jury was required to determine whether the People had met their burden of proving all of the facts essential to establishing his guilt." (Westbrooks, supra, 151 Cal.App.4th at p. 1509.)
The Westbrooks court also convincingly distinguished McCullough, the primary case upon which McAdams relies. (See Westbrooks, supra, 151 Cal.App.4th at p. 1510 [emphasizing that "[u]nlike in McCullough, the trial court in this case did not tell the jury that reasonable doubt must arise from the evidence presented at trial, and, given the court's other instructions, it would not have been reasonable for the jury to interpret CALCRIM No. 220 as stating that the jury was precluded from considering any perceived lack of evidence in determining [the defendant's] guilt"].) McAdams's citation to Simpson, supra, 43 Cal.2d 553, 566, is also misplaced as that case concerned a significantly different instruction than the one complained of here.
In light of this reasoning (with which we are in full agreement), the trial court's use of CALCRIM No. 220 did not violate McAdams's rights under the federal Constitution or state law.
D. The Trial Court Did Not Err by Instructing the Jury to "Impartially Compare" the Evidence Presented
McAdams also contends that the use of the phrase "impartially compare" in CALCRIM No. 220 violated his constitutional rights by "evoking the civil standard of preponderance of the evidence" and thus undermining the more stringent criminal law standard of beyond a reasonable doubt.
This argument has been considered and rejected by our colleagues in the First District in People v. Stone (2008) 160 Cal.App.4th 323, 331-332 (Stone). We find the Stone court's rejection of this "exercise in semantics" compelling and adopt it in rejecting McAdams's claim. (Id. at p. 331.)
"[W]e cannot see how a jury would place enough significance on a single word — 'compare' — such that it would interpret the instruction as a whole to mean that the evidence must only preponderate in favor of the prosecution in order to warrant a guilty verdict. The instruction simply tells the jury to 'compare and consider all the evidence that was received throughout the entire trial.' It does not instruct the jury to engage in any balancing of the evidence in the sense of comparing the evidence presented by one side against the evidence presented by the other side. Indeed, such an interpretation is completely inconsistent with the instructions as a whole." (Stone, supra, 160 Cal.App.4th at p. 332.)
McAdams also contends that CALCRIM No. 220 is "virtually identical to the instruction held constitutionally deficient in" Coffin v. United States (1895) 156 U.S. 432, 461-462. Our review of Coffin reveals no support for this contention. In Coffin, the Supreme Court faulted a trial court for declining to instruct the jury as to the presumption of innocence and then instructing: " '[I]f, after weighing all the proofs and looking only to the proofs, you impartially and honestly entertain the belief that the defendants may be innocent of the offences charged against them, they are entitled to the benefit of that doubt, and you should acquit them.' " (Id. at p. 453.) This combination of a refusal to inform the jury of the presumption of innocence and an instruction focusing only on " 'the proofs' " was erroneous. (Id. at p. 461.) The instructional error described in Coffin is distinct from that alleged in the instant case — where the trial court did instruct the jury repeatedly on the presumption of innocence and related principles — and thus Coffin provides no support for McAdams's contention.
E. The Trial Court Did Not Err by Instructing the Jurors to Rely on Their Common Sense and Experience
McAdams contends that by instructing the jurors with standard instruction CALCRIM No. 226, which states that in evaluating the credibility of the witnesses, jurors should "use [their] common sense and experience," the trial court impermissibly encouraged the jurors to rely on matters outside the record. McAdams contends that support for this contention can be found in People v. Bickerstaff (1920) 46 Cal.App. 764, 773, and People v. Paulsell (1896) 115 Cal. 6.
This precise contention has been considered and rejected by our colleagues in the Second District in People v. Campos (2007) 156 Cal.App.4th 1228. We find the Campos court's reasoning persuasive and adopt it in rejecting McAdams's contention. As explained in Campos:
"To tell a juror to use common sense and experience is little more than telling the juror to do what the juror cannot help but do. In approaching any issue, a juror's background, experience and reasoning must necessarily provide the backdrop for the juror's decisionmaking, whether instructed or not. CALCRIM No. 226 does not tell jurors to consider evidence outside of the record, but merely tells them that the prism through which witnesses' credibility should be evaluated is common sense and experience. Unlike People v. Bickerstaff[, supra,] 46 Cal.App. 764, 773, and People v. Paulsell[, supra,] 115 Cal. 6, 7, cited by [McAdams], CALCRIM No. 226 does not instruct jurors to use their common sense and experience in finding reasonable doubt, which could potentially conflict with the beyond a reasonable doubt standard, but only in assessing a witnesses' credibility." (Ibid.)
Consequently, the trial court's use of CALCRIM No. 226 did not violate McAdams's rights under the federal Constitution or state law.
McAdams includes separate sections of his brief contending that the trial court's purported instructional errors "amounted to constitutional error" by precluding the jury from considering his claim of self-defense and thus violating "his right to due process under the Fifth and Fourteenth Amendments." As we have explained, the jury was comprehensively and correctly instructed on the general legal principles applicable to his claim of self-defense. (McAdams's brief acknowledges "[t]he trial court properly instructed upon several aspects of self-defense . . . .") Given these instructions, there can be no contention that the question of self-defense was withdrawn from the jury and thus no serious argument that the trial court committed federal constitutional error in this regard. (U.S. v. Sayetsitty (9th Cir. 1997) 107 F.3d 1405, 1414 ["a defendant has a constitutional right to have the jury consider defenses permitted under applicable law to negate an element of the offense"]; cf. Henderson v. Kibbe (1977) 431 U.S. 145, 155 ["An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law"].)
DISPOSITION
Affirmed.
WE CONCUR: HUFFMAN, Acting P. J. O'ROURKE, J.