Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. F12187
Bamattre-Manoukian, Acting P.J.
On the night of September 24, 2005, defendant was with Michael John Bell when defendant robbed Laura Cruz and attempted to rob Raul Chavez at gunpoint while making gang comments. Defendant was also with Bell when later that night he shot Chavez and shot and killed Salvador Morales. A jury convicted defendant of second degree murder and attempted murder (Pen. Code, §§ 187, subd. (a), 664), robbery and attempted robbery (§§ 211, 664), and actively participating in a criminal street gang (§ 186.22, subd. (a)). The jury also found true allegations that defendant personally and intentionally discharged a firearm during the commission of the murder and attempted murder (§ 12022.53, subd. (d)), that he inflicted great bodily injury on the victim of the attempted murder (§ 12022.7, subd. (a)), that he personally used a firearm during the commission of the robbery and attempted robbery (§ 12022.53, subd. (b)), and that he committed the murder, attempted murder, robbery, and attempted robbery for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)). The trial court sentenced defendant to the indeterminate term of 65 years to life consecutive to the determinate term of 47 years.
All further statutory references are to the Penal Code.
On appeal, defendant contends: (1) the court erred by instructing the jury with CALCRIM No. 337; (2) the court erred by failing to instruct, and defendant’s counsel rendered ineffective assistance by failing to request that the court instruct, the jury that it could consider defendant’s intoxication in evaluating his defense theory of imperfect self-defense; (3) the court erred by failing to instruct the jury with CALCRIM No. 3471; (4) the court erred by instructing the jury with CALCRIM No. 225; (5) the court erred by instructing the jury with CALCRIM Nos. 371 and 372; (6) the prosecutor impermissibly commented on defendant’s failure to testify; and (7) the court erred by imposing a 10-year term for the criminal street gang enhancement on the murder count. We agree with defendant that the 10-year term for the gang enhancement on the murder count must be stricken. However, we disagree with his other contentions and, therefore, will affirm the judgment as modified.
BACKGROUND
Defendant was charged by information with the murder of Morales (§ 187, subd. (a); count 1), the attempted, premeditated murder of Chavez (§§ 664, 187, subd. (a); count 2), the attempted second degree robbery of Chavez (§§ 664, 211; count 3), the second degree robbery of Cruz (§ 211; count 4), and active participation in a criminal street gang (§ 186.22, subd. (a); count 5). The information further alleged that defendant intentionally discharged a firearm during the commission of the offenses in counts 1 and 2 (§ 12022.53, subd. (d)), that he inflicted great bodily injury on the victim in count 2 (§ 12022.7, subd. (a)), that he personally used a firearm during the commission of the offenses in counts 3 and 4 (§ 12022.53, subd. (b)), and that he committed the offenses in counts 1 through 4 for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)). Bell was charged by separate information with similar offenses, and both Bell and defendant moved for severance of their trials. On March 9, 2007, the court denied both motions.
The jury found Bell not guilty of the offenses in counts 1 and 2, but guilty of the offenses in counts 3 through 5. The trial court sentenced Bell to six years in state prison. Bell is not a party to this appeal.
Trial Evidence
The Prosecution’s Case
On Saturday, September 24, 2005, Justine Sink, who lived in Redwood City, and her friend Stephanie Pimentel decided to go to Santa Cruz for the night. Their friend Kelsi Bowser was going to college there and had invited them to a party. Defendant and Bell went with them. Pimentel drove them to Santa Cruz while Sink, Bell and defendant drank Skyy vodka. They got a hotel room with two bedrooms and got ready to go to the party. At one point, Sink saw defendant with a gun and bullets on the bed in the second bedroom. Defendant was wiping the bullets and Sink asked him why he was doing that. Defendant said, “ ‘I came to strap.’ ” He said that the bottom part of the bullets fall off and are left behind when they are fired, and that is how people get caught. He said that he was wiping off the fingerprints. Bell was in the room during this discussion.
Sink, Pimentel, Bell and defendant went to the party and met up with Bowser and two of her friends. There were drugs and alcohol at the party. Defendant had brought some cocaine and asked if anyone wanted any. Pimentel used cocaine. Sink drank and used cocaine. Bowser also drank and used cocaine. When Sink, Pimentel, Bell and defendant left the party and returned to the hotel, Bowser and her two friends went with them. Bowser sat in the front seat of Pimentel’s vehicle, between Pimentel and defendant. Defendant pulled a gun from his pants to show to Bowser. Bowser was frightened. She asked defendant why he had it and he responded, “ ‘Oh, for protection.’ ”
Bell and defendant left to get something to eat shortly after they all arrived at the hotel. Bowser’s two friends left to go home. Sink, Pimentel and Bowser were inside the hotel room when Bell came back alone and rushed inside. Bell paced around the room and appeared scared and upset. He asked where defendant was and he threw up in a wastepaper basket. He then said that they had been in a confrontation with a man and a pregnant woman, that defendant took some money before the woman ran away, that Bell had followed the man for a while but returned to stay with defendant, that he and defendant went to a taqueria, that two men approached them and defendant pulled out his gun, that defendant shot both men, that Bell saw both men fall to the ground face first, and that defendant got rid of the gun in the ocean. Bowser left after a few minutes and Sink went to bed. Sink woke up around 8:30 a.m. and returned to Redwood City with Pimentel, defendant, and Bell shortly thereafter.
On Saturday night, September 24, 2005, Laura Cruz walked to the downtown restaurant where Raul Chavez, her husband, worked in order to walk with him back home after the restaurant closed and his shift ended. At the time, Cruz was six months pregnant and was wearing a long black dress and a long sweater. Chavez was wearing a blue shirt, blue jeans, and blue and white tennis shoes. Cruz had a little bit of money with her and Chavez had over $450 in his wallet. Chavez drank some beer at the restaurant before leaving. As he and Cruz walked along the levee path on their way home sometime after 11:25 p.m., they were confronted by defendant and Bell. Defendant was wearing a tan baseball cap.
Chavez testified that he was convicted of a misdemeanor in 2004 following a domestic violence incident involving Cruz.
Defendant asked where the Taco Bell was. Chavez said that they should keep going straight. Defendant told them to give him their cash. Chavez and Cruz said that they did not have any money. Defendant asked Chavez what neighborhood he claimed. Chavez responded that he did not claim any neighborhood. Defendant said, “ ‘You are a Sureño, and around here it’s all Norteño.’ ” He opened his jacket and showed Cruz and Chavez that he had a gun in his waistband. Chavez ran down off the levee towards a parking lot, yelling “come with me,” hoping that defendant and Bell would follow him. Bell followed Chavez for a little distance but then returned to where defendant had stayed with Cruz.
Defendant and Bell told Cruz to give them her money. She was afraid and begged for her safety and the safety of her child. She said that she did not have much, but they told her to give them what she had. She gave defendant what she had, which was about $7, and they told her that she could go. She left and went home alone. Chavez arrived home a short time later, and asked Cruz how she was. She said that she had given the men a little money but that she was fine. He told her that he would return and then he left. There were people outside drinking and Cruz thought that Chavez was going out to be with them. However, he did not return.
Chavez had watched defendant and Bell talk to Cruz after Chavez had run from the levee. He thought that if he left they would leave her alone, so he headed home. On his way there he saw some friends who were outside drinking, and he told them what had happened. He does not remember, but he might have drunk some beer while there. When he left his friends after about five minutes, he was accompanied by Salvador Morales and he was carrying an empty Corona beer bottle in order to defend himself in case he saw defendant and Bell again. Morales was wearing a gray Dallas Cowboys sweatshirt. Chavez and Morales went back to the levee path, but did not see Cruz there so they went to Chavez’s home. Chavez went inside and found that Cruz was there and that she appeared frightened. Chavez went back outside to where Morales was waiting.
Chavez’s anger and fright had decreased, so Chavez and Morales decided to head downtown to buy some beer. Chavez had the empty Corona beer bottle in his rear pants pocket and a rock he had picked up from the levee in a front pocket. While he and Morales were on the levee path, Chavez was surprised to see defendant and Bell approaching them. Defendant was in front of Bell and about three or four meters from Chavez. Chavez and Morales did not say anything. Defendant said “ ‘Sureños,’ ” took out his gun, and repeatedly fired it at them. Several shots hit Chavez and he fell on his back to the ground. Morales ran away and defendant and Bell ran after him. Because Chavez was afraid that the men would return and shoot him again, he left the levee path and headed towards the street.
Officers found Morales lying on his back in the northbound lane of Front Street in front of a credit union around 12:08 a.m. He had been shot in the middle of the chest and in the left side. He had no other injuries to his hands, limbs or face. They found Chavez leaning on a tree on the east sidewalk in front of the credit union. He had been shot between five and seven times in the abdomen, thighs, and left arm. A trail of blood ran from the levee path through the credit union parking lot to the tree. While following the blood trail back to the levee path from the tree, officers discovered a.22 caliber bullet with blood traces on it on the levee. Two.22 caliber shell casings, a shattered Corona beer bottle, and various blood splatters were later found on and near the levee. The neck of the beer bottle was seized and tested for fingerprints. Two latent prints were found, and were identified as belonging to Chavez. Based on the position of the prints, the bottle could have been held in either an upright or downward position. Morales’s and Chavez’s clothes were cut from them by responding medical personnel at the scene. A rock was found in Chavez’s left front pants pocket, and $463 was found in Chavez’s wallet. No broken glass was found in any of the pants pockets or on the pants.
Morales died from his gunshot wounds. Two.22 caliber bullets were recovered from Morales’s abdomen during his autopsy. At the time of his death, Morales had a.22 blood-alcohol level and tested positive for cocaine. He had several tattoos, one of which was a female figure wearing a hat and the words “ ‘Mi vida es un Sureno.’ ” Chavez had a.071 blood-alcohol level at 1:30 a.m. on September 25, 2005. When he first talked to officers about the incident after being treated at a hospital in San Jose, he did not tell them the whole truth about what had happened because he was frightened.
A criminalist from the state crime lab testified that he could not determine whether the bullets removed from Morales and the other bullets and casings found were fired from the same gun, but they were fired from the same make and model. The gun was probably a sawed-off.22 rifle. However, the criminalist could not determine whether the sawed-off.22 rifle he was given to test was the gun that fired any of the bullets and casings. The gun given to the criminalist to test had been found down a cliff by the ocean after the trial started, some two and one-half years after the incident at issue, and had to be disassembled, cleaned, and reassembled before it could be tested.
On September 30, 2005, defendant was arrested and a search warrant was executed at his Redwood City residence. A red 49ers jacket, a red 49ers baseball cap, and two pairs of shoes with red leather were found in the living room. On the underside of the bill of the cap was “XIVers” written in ink. Photographs of defendant with other people, including Bell, throwing gang signs and wearing gang-related clothing, were found in defendant’s bedroom, as were the T-shirt that defendant had been wearing in those photographs and a tan 49ers baseball cap. Two red belts, a red plaid shirt, and a pair of Nike tennis shoes with a red swoosh were found in defendant’s bedroom closet.
Bell turned himself in on October 3, 2005. Cruz was not able to identify either defendant or Bell during a police lineup or at trial. Chavez was not asked at trial if he could identify either defendant or Bell.
Redwood City Police Officer Casey Donovan testified as an expert on gangs and gang-related crimes that violence between Norteño and Sureño gangs occurs in Redwood City. Gang members are identified by their clothing, tattoos, where they hang out, who they associate with, and the crimes they have committed. Norteños wear red, Sureños wear blue. In 2005, defendant and Bell were active members of the West Side Gang (WSG) Norteño gang in Redwood City. In Officer Donovan’s opinion, the primary activities of WSG are murder and attempted murder, assault with a deadly weapon, assault causing great bodily injury, criminal threats, and robbery. His opinion is based on his and other officers’ investigations of gang-related crimes in Redwood City as well as his casual conversations with gang members. On August 26, 2005, two Sureño gang members were stabbed in an area controlled by WSG. A member of WSG was convicted by plea of violating section 245, subdivision (a)(1) with a gang enhancement. The robbery of Cruz, the attempted robbery and attempted murder of Chavez, and the murder of Morales are also predicate offenses of WSG.
In Officer Donovan’s opinion, defendant and Bell committed the instant offenses for the benefit of and in association with a criminal street gang. Defendant’s and Bell’s activity on September 24, 2005, enhanced their prestige within WSG because they committed acts of violence on Sureño or suspected Sureño gang members. It promoted fear within the opposing gang and respect within their own gang. And, although committing crimes against women and children is frowned upon by gang members, disrespecting a gang member’s girlfriend by using the $7 taken from her “to purchase tacos at Taco Bell” would bring shame or embarrassment to the gang member and enrich defendant’s and Bell’s prestige within their gang.
The Defense Case
During his opening statement, defendant’s counsel informed the jury that “[t]here’s no doubt” that defendant was guilty of robbing Chavez and Cruz at gunpoint. Counsel also stated that, when defendant came upon Morales and Chavez, he saw “a dark object” and he thought that they were “going for the dark object,” so he took out and shot his gun. The dark object turned out to be the broken beer bottle found at the scene, but the bottle had been “held in an offensive manner” and it was “obvious that the bottle was going to be used as a weapon.” Therefore, the shooting was not murder but was “the shooting of two people who, unfortunately, [defendant] reasonably believed were intending to seriously injure him or kill him.” “Why would he think that he needed to shoot under these circumstances?” Because “gang members retaliate against one another,” and because “drugs and alcohol [affect] the ability to perceive and remember.” However, defendant did not testify and he did not call any witnesses to testify on his behalf.
Bell testified in his own defense. He testified that he began his involvement with a Norteño gang in high school. He testified that he, Pimentel, Sink, and defendant “were drinking straight out of the Skyy vodka bottle” and “snorted a little bit of cocaine” in the hotel room prior to the party, and that he and defendant were “drinking throughout the night.” He testified that, when returning to the hotel from the Taco Bell, he recognized Chavez when they were still 10 or 15 feet away from each other. Chavez “froze up and stopped,” and his eyes lit up “as if he was surprised or stunned.” Bell then heard the gun shots but he did not see defendant firing the gun. He identified the gun found by the police and tested by the criminalist as defendant’s gun.
On cross-examination by defendant’s counsel, Bell testified that he went to Santa Cruz in order to attend the party. On the way back to the hotel after the party, they stopped at a taqueria but it was closed. After returning to the hotel, they decided to go to Taco Bell. They met Cruz and Chavez on the levee, and he chased Chavez because he thought Chavez might be going for a weapon or to get some friends. Chavez was dressed all in blue and appeared to be a Sureño. After Cruz and Chavez left the area, Bell went with defendant to the Taco Bell. The only way he knew how to get back to the hotel was by way of the levee. While on the levee, all of a sudden, Chavez showed up with another person and there was a shooting which was not planned or discussed beforehand.
The Verdicts, Motion for New Trial, and Sentencing
On April 8, 2008, the jury found defendant guilty of the second degree murder of Morales (§ 187, subd. (a); count 1), the attempted murder of Chavez (§§ 664, 187, subd. (a); count 2), the attempted second degree robbery of Chavez (§§ 664, 211; count 3), the second degree robbery of Cruz (§ 211; count 4), and actively participating in a criminal street gang (§ 186.22, subd. (a); count 5). The jury also found true allegations that defendant personally and intentionally discharged a firearm during the commission of the offenses in counts 1 and 2 (§ 12022.53, subd. (d)), that he personally inflicted great bodily injury on the victim in count 2 (§ 12022.7, subd. (a)), that he personally used a firearm in the commission of the offenses in counts 3 and 4 (§ 12022.53, subd. (b)), and that he committed the offenses in counts 1 through 4 for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)). The jury found not true an allegation that the attempted murder in count 2 was premeditated (§ 664, subd. (a)).
On July 16, 2008, defendant filed a motion for new trial, requesting that the court reduce the enhancements under section 12022.53, subdivisions (b) and (d) to the lesser enhancement under section 12022, subdivision (a)(1), or strike them as cruel and/or unusual punishment, and strike or reduce the section 186.22, subdivision (b) enhancements pursuant to section 186.22, subdivision (g). The court denied the motion after a hearing on August 8, 2008.
On August 26, 2008, the court sentenced defendant to the indeterminate term of 65 years to life consecutive to the determinate term of 47 years. The sentence consists of the determinate term of 22 years on count 2 (the aggravated term of nine years plus consecutive terms of three years for the great-bodily-injury enhancement and 10 years for the gang enhancement), consecutive to the indeterminate term of 25 years to life for the personal-use enhancement; a consecutive determinate term of seven years four months on count 3 (one-third the middle term of two years plus consecutive terms of 10 years each for the firearm-use and gang enhancements); a consecutive determinate term of seven years eight months on count 4 (one-third the middle term of three years plus consecutive terms of 10 years each for the firearm-use and gang enhancements); and a consecutive indeterminate term of 40 years on count 1 (15 years to life plus a consecutive term of 25 years to life for the personal use enhancement) with a consecutive determinate term of 10 years for the gang enhancement. The court stayed a midterm sentence of two years on count 5.
DISCUSSION
CALCRIM No. 337
Because Bell was in custody when he testified, the court instructed the jury with CALCRIM No. 337 as follows: “When Michael Bell testified, he was in custody. Do not speculate about the reason. The fact that a witness is in custody does not by itself make a witness more or less believable. Evaluate the witness’s testimony according to the instructions I have given you.” The instructions on evaluating a witness’s testimony that the court gave included CALCRIM Nos. 105 [Witnesses], and 316 [Additional Instructions on Witness Credibility-Other Conduct]. In addition, the court instructed the jury on the requirement that an accomplice’s testimony must be corroborated, pursuant to CALCRIM No. 334.
Defendant contends that the court committed reversible error by giving CALCRIM No. 337. He argues that the instruction is unconstitutional because it “tells jurors not to consider the fact that a witness is in custody. Thus, [defendant] could not argue – and the jury could not consider – whether the fact that Bell was in custody made him ‘less believable.’ ” “Here, Bell’s credibility was key to the defense. The fact that he was in custody for the exact same offenses as [defendant], and thus had a very strong motive to lie about the confrontation between the four men to minimize his own culpability, was directly relevant to his credibility.”
The Attorney General contends that defendant has not shown a reasonable likelihood that the jury applied CALCRIM No. 337 in a way that violates the Constitution.
An instruction is not considered in isolation, but in the context of the entire charge of the court. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) To succeed on a claim of instructional error, defendant must show that “there is ‘a reasonable likelihood’ the jury understood the instructions as the defendant asserts,” considering “the specific language challenged, the instructions as a whole and the jury’s findings. [Citations.]” (People v. Cain (1995) 10 Cal.4th 1, 36; see also Estelle v. McGuire (1991) 502 U.S. 62, 72.)
We find that the court did not err in instructing the jury with CALCRIM No. 337. First, defendant cites no authority, and we have found none, that holds that a trial court should not give CALCRIM No. 337 in cases where an alleged accomplice witness testifies. Bell was before the jury, charged with the same offenses that defendant was charged with. Second, the plain language of the instruction did not preclude the jury from considering the fact that Bell was in custody. Rather, it stated that the jury was precluded from speculating on the reason for his custody, and that the fact that Bell was in custody did not “by itself make a witness more or less believable.” (CALCRIM No. 337.) The instruction further told the jury to evaluate Bell’s testimony “according to the instructions I have given you.” (Ibid.) CALCRIM No. 316, one of the instructions given, permitted the jury to consider whether Bell had committed “a crime or other misconduct” in evaluating his credibility. CALCRIM No. 105 permitted the jury to consider whether Bell was “influenced by a factor such as bias or prejudice,... or a personal interest in how the case is decided,” and whether he “engaged in other conduct that reflects on his... believability.” And, CALCRIM No. 334 informed the jury that it should view Bell’s testimony with caution, and it needed corroborating evidence to convict defendant based on Bell’s testimony, if it found Bell to be defendant’s accomplice. Thus, contrary to defendant’s claim, he was not precluded from arguing, and the jury could consider, whether the fact that Bell was in custody made him “less believable.” We find that there is not a reasonable likelihood the jurors understood CALCRIM No. 337 or the instructions as a whole as precluding them from considering Bell’s custody status when evaluating his credibility. (People v. Cain, supra, 10 Cal.4th at p. 36.) No instructional error has been shown.
Instruction on Defendant’s Intoxication
Defendant contends that there was ample evidence to support a defense of imperfect self-defense and acknowledges that the court instructed the jury on imperfect self-defense. In addition, he contends that “the trial court defined intoxication and instructed the jury that it could consider defendant’s intoxication in determining if he premeditated and deliberated the killing or intended to kill. [¶] For whatever reasons, however the court did not provide (and defense counsel did not request) any instructions telling the jury that it could also consider the intoxication evidence in determining the honesty of defendant’s belief in the need to defend himself.” “[A] jury can properly consider intoxication in assessing a defendant’s theory of imperfect self-defense. Under the facts of this case – whatever the cause of the failure to provide instructions on this point – the failure was prejudicial.” “The trial court had a sua sponte duty to instruct the jury that it could consider defendant’s intoxication evidence in connection with the imperfect self-defense theory.” “Even assuming arguendo there was no sua sponte duty to provide an instruction to the jury which explained that it could rely on intoxication evidence to evaluate defendant’s imperfect self-defense theory, reversal is still required. Counsel’s failure to request such an instruction violated defendant’s right to effective assistance of counsel.”
The Attorney General contends that, by finding defendant guilty of the second degree murder of Morales and the attempted non-premeditated murder of Chavez, the jury found defendant acted with implied malice when he shot Morales and Chavez and evidence of voluntary intoxication does not negate implied malice. (§ 22; People v. Martin (2000) 78 Cal.App.4th 1107, 1114-1115; People v. Timms (2007) 151 Cal.App.4th 1292, 1298.) The Attorney General further contends that there was no substantial evidence that defendant was voluntarily intoxicated or that his intoxication affected his actual formation of specific intent.
Our Supreme Court explained imperfect self-defense in People v. Flannel (1979) 25 Cal.3d 668: “It is the honest belief of imminent peril that negates malice in a case of complete self-defense; the reasonableness of the belief simply goes to the justification for the killing.” (Id. at p. 679.) The court concluded that “[a]n [actual] but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury negates malice aforethought, the mental element necessary for murder, so that the chargeable offense is reduced to manslaughter.” (Id. at p. 674, italics omitted; see In re Christian S. (1994) 7 Cal.4th 768, 773.) In People v. Wright (2005) 35 Cal.4th 964, at page 966, the court left open the issue of whether this “ ‘doctrine of imperfect self-defense’ ” extends to “a case in which the defendant’s actual, though unreasonable, belief in the need to defend himself was based on delusions and/or hallucinations resulting from mental illness or voluntary intoxication, without any objective circumstances suggestive of a threat.” However, it is settled that “the jury may generally consider evidence of voluntary intoxication or mental condition in deciding whether a defendant actually had the required mental states for the crime.” (People v. Steele (2002) 27 Cal.4th 1230, 1253, citing People v. Saille (1991) 54 Cal.3d 1103, 1116.)
“Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act.” (§ 22, subd. (a), italics added.) “Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether defendant premeditated, deliberated, or harbored express malice aforethought.” (Id. at subd. (b), italics added.) Thus, since section 22 was amended in 1995 to read as it does, “voluntary intoxication is no longer admissible to negate implied malice. [Citation.]” (People v. Timms, supra, 151 Cal.App.4th at p. 1298.)
The court instructed the jury with CALCRIM Nos. 571 [Voluntary Manslaughter: Imperfect Self-Defense-Lesser Included Offense] and 604 [Attempted Voluntary Manslaughter: Imperfect Self-Defense-Lesser Included Offense]. It also instructed the jury with CALCRIM No. 625 [Voluntary Intoxication: Effects on Homicide Crimes]. As given, CALCRIM No. 625 informed the jury that it could “consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill or the defendant acted with deliberation and premeditation. Do not consider evidence of intoxication in deciding whether murder or attempted murder was a natural and probable consequence of assault with a deadly weapon or robbery. [¶]... [¶] A person is voluntarily intoxicated if he becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] You may not consider evidence of voluntary intoxication for any other purpose.” CALCRIM No. 625 correctly informed the jury that it could consider evidence, if any, of defendant’s intoxication only in deciding whether he acted with an intent to kill or with deliberation and premeditation. (§ 22.)
The jury was instructed in part: “A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense. [¶]... [¶] The defendant acted in imperfect self-defense if: [¶] 1. The defendant actually believed that he was in imminent danger of being killed or suffering great bodily injury; [¶] And [¶] 2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; [¶] BUT [¶] 3. At least one of those beliefs was unreasonable. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. [¶] In evaluating the defendant’s beliefs, consider all the circumstances as they were known and appeared to the defendant. [¶]... [¶] The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find the defendant not guilty of murder.” (See CALCRIM No. 571.)
The jury was instructed in part: “An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill a person because he acted in imperfect self-defense. [¶]... [¶] The defendant acted in imperfect self-defense if: [¶] 1. The defendant took at least one direct but ineffective step toward killing a person. [¶] 2. The defendant intended to kill when he acted. [¶] 3. The defendant believed that he was in imminent danger of being killed or suffering great bodily injury. [¶] AND [¶] 4. The defendant believed that the immediate use of deadly force was necessary to defend against the danger. [¶] BUT [¶] 5. The defendant’s beliefs were unreasonable. [¶]... [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have actually believed there was imminent danger of violence to himself. [¶] In evaluating the defendant’s beliefs, consider all the circumstances as they were known and appeared to the defendant. [¶]... [¶] The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find the defendant not guilty of attempted murder.” (See CALCRIM No. 604.)
Sua Sponte Duty
There is no sua sponte duty for the trial court to instruct the jury on voluntary intoxication; “an instruction on voluntary intoxication, explaining how evidence of a defendant’s voluntary intoxication affects the determination whether defendant had the mental states required for the offenses charged, is a form of pinpoint instruction that the trial court is not required to give in the absence of a request.” (People v. Bolden (2002) 29 Cal.4th 515, 559; citing People v. Saille, supra, 54 Cal.3d at p. 1120.) “This is so because the defendant’s evidence of intoxication can no longer be proffered as a defense to a crime but rather is proffered in an attempt to raise a doubt on an element of a crime which the prosecution must prove beyond a reasonable doubt. In such a case the defendant is attempting to relate his evidence of intoxication to an element of the crime. Accordingly, he may seek a ‘pinpoint’ instruction that must be requested by him [citation], but such a pinpoint instruction does not involve a ‘general principle of law’ as that term is used in the cases that have imposed a sua sponte duty of instruction on the trial court.” (People v. Saille, supra, 54 Cal.3d at p. 1120.) Therefore, the trial court did not have a sua sponte duty to instruct the jury that it could consider evidence of defendant’s intoxication when considering his defense of imperfect self-defense. (Ibid.)
Ineffective Assistance of Counsel
Defendant contends that, even assuming there was no sua sponte duty to provide an instruction, counsel’s failure to request such an instruction was ineffective assistance. “A defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel’s failings. [Citations.]” (People v. Price (1991) 1 Cal.4th 324, 440; see also Strickland v. Washington (1984) 466 U.S. 668, 687-688.) “Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,... that course should be followed.” (Strickland v. Washington, supra, 466 U.S. at p. 697.)
Even when a defendant requests an instruction on voluntary intoxication, he or she is entitled to such an instruction “only when there is substantial evidence of the defendant’s voluntary intoxication and the intoxication affected the defendant’s ‘actual formation of specific intent.’ [Citations.]” (People v. Williams (1997) 16 Cal.4th 635, 677.) In this case, evidence was presented that defendant drank vodka during the ride from Redwood City to Santa Cruz, that he continued to drink vodka and “snorted a little bit of cocaine” in his Santa Cruz hotel room prior to going to a party, and that he was drinking throughout the night prior to going to a Taco Bell after leaving the party and returning to the hotel. Defendant and Bell confronted and robbed Chavez and Cruz on the way to the Taco Bell, but there was no testimony by Chavez, Cruz or Bell that defendant was or appeared to be intoxicated at the time of that confrontation. Later, while defendant and Bell were returning to the hotel from the Taco Bell, defendant shot Morales and Chavez. There was no testimony by Chavez or Bell that defendant was or appeared to be intoxicated at the time he shot Morales and Chavez, nor was there any testimony by any witness regarding how defendant’s intoxication, if any, did or could have affected defendant’s “ ‘actual formation of specific intent.’ ” (People v. Williams, supra, 16 Cal.4th at p. 677.) Although the testimony showed that the offenses were committed after defendant had “snorted a little bit of cocaine” and had drunk an unspecified amount of alcohol over a period of some hours, evidence of the effect of defendant’s cocaine use and alcohol consumption on his state of mind is lacking in the record before us. The evidence suggested possible impairment, but the record does not support a conclusion that at the time of the offenses defendant was unable to premeditate or form an intent to kill. “The mere fact a defendant may have been drinking prior to the commission of a crime does not establish intoxication or necessarily require the giving of an instruction thereon.” (People v. Robinson (1970) 5 Cal.App.3d 43, 48; accord, People v. Marshall (1996) 13 Cal.4th 799, 848 [evidence of alcohol consumption suggesting some impairment does not support a conclusion that at the time of the offenses the defendant was unable to premeditate or form an intent to kill].)
The jury was instructed that evidence of defendant’s intoxication, if any, was relevant to the issue of “whether the defendant acted with an intent to kill or the defendant acted with deliberation and premeditation.” (CALCRIM No. 625.) The jury was also instructed that it could convict defendant of voluntary manslaughter if it found he “actually believed that he was in imminent danger of being killed or suffering great bodily injury” and “actually believed that the immediate use of deadly force was necessary to defend against the danger,” but “[a]t least one of those beliefs was unreasonable.” (CALCRIM No. 571.) While the jury was not directly instructed that defendant’s voluntary intoxication could affect his belief in the need for self-defense, the instructions given permitted the jury to consider the effect of defendant’s intoxication on his belief in need for self-defense. (See People v. Boyer (2006) 38 Cal.4th 412, 468, fn. 39 (Boyer).)
In Boyer, a jury found the defendant guilty of the robberies and first degree murders of two people. (Boyer, supra, 38 Cal.4th at pp. 418-419.) The jury had received instructions on robbery, both the premeditated and felony-murder forms of first degree murder, express- and implied-malice second degree murder, and voluntary and involuntary manslaughter. At the defendant’s request, the jury also received an instruction that if, while unconscious as the result of voluntary intoxication, he killed without malice or intent to kill, the crime was not murder but involuntary manslaughter. The jury was also instructed, as to crimes requiring specific intent, that it must consider the effect of defendant’s voluntary intoxication, if any, when determining whether he formed such intent. Finally, the jury heard it could convict the defendant of voluntary manslaughter if he killed in the honest, though unreasonable, belief in the need for self defense. (Id. at p. 468.) The Supreme Court stated: “The court refused an instruction, proffered by defendant, that made clear such an unreasonable belief could stem from defendant’s ‘mental illness, voluntary intoxication, or both.’ However, the instructions actually given did not preclude the jury from so concluding.” (Id. at p. 468, fn. 39.) Here, as in Boyer, while the trial court did not give a specific instruction on voluntary intoxication and defendant’s imperfect self-defense theory, the jury was not precluded from considering the intoxication evidence when determining whether defendant had an honest, though unreasonable, belief in the need for self defense.
We conclude that, even if defendant’s counsel had requested an instruction relating evidence of defendant’s intoxication to his defense of imperfect self-defense, there was no substantial evidence supporting the giving of such an instruction. (People v. Williams, supra, 16 Cal.4th at p. 677.) In addition, the instructions permitting the jury in this case to consider the effects of defendant’s intoxication in forming the specific intent to kill permitted the jury to consider whether an unreasonable belief in the need for self-defense could stem from defendant’s voluntary intoxication. Accordingly, it is not reasonably probable a more favorable determination would have resulted had counsel requested a specific instruction on the relevance of defendant’s intoxication, if any, to defendant’s imperfect self-defense theory, and defendant has not shown that he was prejudiced by the claimed ineffective assistance of counsel. (See Strickland v. Washington, supra, 466 U.S. at pp. 687-688; People v. Price, supra,1 Cal.4th at p. 440.)
CALCRIM No. 3471
The prosecutor requested that the court instruct the jury with CALCRIM No. 3471 [Right to Self-Defense: Mutual Combat or Initial Aggressor] in addition to CALCRIM Nos. 505 [Justifiable Homicide: Self-Defense or Defense of Another], 3470 [Right to Self-Defense (Attempted Homicide)] and 3472 [Right to Self-Defense: May Not Be Contrived]. On the day defendant rested his defense without calling any witnesses in his behalf, defendant’s counsel filed a brief that argued, in part, that the “self-defense and ancillary instructions that are dependent on a reasonable belief are not applicable here and should not be given.” “Mr. Mitchell, through counsel, has not raised, nor does he intend to raise the complete defense of self-defense. Far from claiming that his conduct was justified – Mr. Mitchell has accepted responsibility for the robbery and the attempted robbery and has admitted to killing Mr. Morales and shooting Mr. Chavez. Mr. Mitchell has only the partial defense of imperfect self-defense. [¶] The prosecution has not – because it cannot – cite to one case suggesting that instructions relating to a complete self-defense, which are based [on] the reasonableness of the defendant claiming such a defense, apply to a defendant who admits to engaging in unreasonable conduct.” The record on appeal discloses that the court expressly overruled defendant’s objection to the giving of self-defense instructions, but the court did not state why it intended to give CALCRIM Nos. 3470 and 3472 but not CALCRIM No. 3471.
As requested by the prosecutor, CALCRIM No. 3471 states: “A person who engages in mutual combat or who is the first one to use physical force has a right to self-defense only if: [¶] 1. (He/she) actually and in good faith tries to stop fighting; [¶] AND [¶] 2. (He/she) indicates, by word or by conduct, to (his/her) opponent, in a way that a reasonable person would understand, that (he/she) wants to stop fighting and that (he/she) has stopped fighting(;/.) [¶] [¶] AND [¶] 3. (He/she) gives (his/her) opponent a chance to stop fighting. [¶] If a person meets these requirements, (he/she) then has a right to self-defense if the opponent continues to fight. [¶] If you decide that the defendant started the fight using non-deadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend (himself/herself) with deadly force and was not required to try to stop fighting.”
Defendant now contends that the court erred in failing to give, and defendant’s counsel rendered ineffective assistance in failing to request, CALCRIM No. 3471 in addition to CALCRIM Nos. 3470 and 3472, as “[t]here was ample evidence to support a jury finding that [defendant] initiated a quarrel with Chavez.” “To be sure, defense counsel objected to instructions on self-defense. But the trial court overruled this objection, and instead granted the prosecutor’s request.” “Put simply, having chosen to instruct on this area over defense counsel’s objection, the trial court had a sua sponte duty to tell the entire story.” “The jury should have been told not only the circumstances under which [defendant] did not have the right to defend himself, but also tell the jury the circumstances under which [defendant] did have a right to defend himself.” Defendant further contends that “defense counsel could have had no tactical justification for failing to request an instruction telling the jury that [defendant] had the right to defend himself with deadly force if Chavez escalated the fight.”
The Attorney General contends that defendant is precluded from contending counsel rendered ineffective assistance due to his counsel’s tactical decision to object to the giving of CALCRIM No. 3471. The Attorney General further contends that the record does not support the giving of the instruction. We agree with this latter contention.
“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.]’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154.) A trial court has a duty to instruct, sua sponte, on an affirmative defense “only if it appears that the defendant was relying on the defense, or that there was substantial evidence supportive of the defense, and the defense was not inconsistent with the defendant’s theory of the case. [Citations.]” (People v. Michaels (2002) 28 Cal.4th 486, 529.)
If trial counsel’s contested acts or omissions stemmed from an informed tactical choice that a reasonably competent attorney might make, the conviction must be affirmed. (People v. Lucas, supra, 12 Cal.4th at p. 437; People v. Diaz (1992) 3 Cal.4th 495, 557.) We must be “highly deferential” to the tactical decisions made by counsel. (Strickland v. Washington, supra, 466 U.S. at p. 689.) There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” (Ibid.)
We find that, in this case, counsel’s decision to object to the giving of CALCRIM Nos. 3470, 3471, and 3472, was an informed tactical decision based on defendant’s theory of the defense. The trial court properly instructed the jury with CALCRIM Nos. 3470 [Right to Self-Defense (Attempted Homicide)] and 3472 [Right to Self-Defense: May Not Be Contrived] over defendant’s objection, nevertheless, as there was ample evidence that defendant and Bell confronted Chavez and Cruz on the levee path and demanded money from them. However, that confrontation ended, Chavez and Cruz returned home, and defendant and Bell went to a Taco Bell. While defendant and Bell were returning from the Taco Bell to their hotel, they came upon Chavez and Morales. There was evidence that Chavez was surprised to see defendant and Bell on the levee path, that Chavez froze, and that defendant suddenly pulled out his gun and shot it at Chavez and Morales when defendant was still some three to four meters, or 10 to 15 feet, away from them. There was also evidence that defendant was a Norteño who thought that both Chavez and Morales were Sureños, rival gang members, who had returned to the scene of an earlier confrontation and theft, and that defendant had brought the gun with him that night “for protection.” Accordingly, the court properly instructed the jury that it could find that defendant acted in lawful self-defense if it found that defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury, or reasonably believed that the immediate use of deadly force was necessary to defend against that danger and used no more force than was reasonably necessary, and that defendant did not provoke a fight or quarrel with the intent to create an excuse to use force. (CALCRIM Nos. 505, 3470, 3472.)
However, the court could have properly refused to instruct the jury over defendant’s objection regarding an initial aggressor’s right to regain the defense of self-defense when the opponent continues to fight or responds with sudden and deadly force (CALCRIM No. 3471), as there was no substantial evidence to support such an instruction. There was no evidence that either Chavez or Morales continued a fight in which defendant was the initial aggressor or that Chavez or Morales had responded to such a fight with sudden and deadly force. And, there was no evidence that Chavez or Morales said anything or that Chavez attacked or threatened defendant or Bell with the beer bottle he had put in his back pocket before returning to the levee.
On this record, we cannot say that the court had a sua sponte duty to give CALCRIM No. 3471 over defendant’s objection as there was no substantial evidence supportive of the instruction. (People v. Breverman, supra, 19 Cal.4th at p. 154.) Counsel’s decision to object to the instruction was an informed tactical decision based on defendant’s theory of defense. (People v. Lucas, supra, 12 Cal.4th at p. 437.) Defendant cannot show that he was prejudiced by the failure to give CALCRIM No. 3471, as it is not reasonably probable a more favorable determination would have resulted had counsel requested that CALCRIM No. 3471 be given along with CALCRIM Nos. 3470 and 3472 after the court overruled his objection. (Strickland v. Washington, supra, 466 U.S. at pp. 689, 697.) Thus, no trial court error or ineffective assistance of counsel has been shown.
CALCRIM No. 225
The court instructed the jury on circumstantial evidence pursuant to CALCRIM Nos. 223 [Direct and Circumstantial Evidence: Defined], 224 [Circumstantial Evidence: Sufficiency of Evidence], and 225 [Circumstantial Evidence: Intent or Mental State]. Defendant contends, citing People v. Vann (1974) 12 Cal.3d 220 (Vann), that, “jurors were given a specific instruction advising them of the requirement of proof beyond a reasonable doubt for circumstantial evidence. Further, the instructions which explained how this concept was to be applied specifically told the jurors that where circumstantial evidence was involved, they could not convict where they could ‘draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence....’... [T]here is a reasonable likelihood this instruction [sic] told the jury these important cautionary principles did not apply to direct evidence.” He argues that, “there was a reasonable conclusion from the direct evidence which was entirely consistent with innocence. Yet because the jury was instructed that the reasonable doubt and ‘two-reasonable explanation’ limitations applied only to circumstantial evidence, there is a strong likelihood the jury applied the instructions so as to permit it to return a guilty verdict based on this direct evidence even if it found the evidence was reconcilable with innocence. Under these circumstances, the burden of proof beyond a reasonable doubt was undercut in violation of [defendant’s] Fifth and Sixth Amendment right to a fair jury trial.”
CALCRIM No. 224 informed the jury: “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 informed the jury: “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 each 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 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 statement 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.”
In Vann, our Supreme Court found the complete omission of a specific instruction on the defendants’ presumption of innocence and the prosecution’s burden of proving their guilt beyond a reasonable doubt to be prejudicial error. (Vann, supra, 12 Cal.3d at pp. 227-228.) In that case, the trial court mentioned to the jury panel prior to jury selection that the prosecutor’s burden of proof was beyond a reasonable doubt, but the court never defined that standard. Also, the trial court’s predeliberation instructions to the jury 16 days later, which included an instruction on circumstantial evidence similar to CALCRIM No. 224, sounded as though they were a self-contained, complete statement of the law, as they did not reference the earlier instructions. (Id. at pp. 226-227 & fn. 6.) In this case, as defendant acknowledges, the trial court did instruct the jury with the standard instruction on the presumption of innocence, the People’s burden of proof, and the definition of beyond a reasonable doubt. (CALCRIM No. 103.) Accordingly, Vann does not compel reversal of defendant’s convictions.
Defendant also acknowledges that the appellate courts in People v. Anderson (2007) 152 Cal.App.4th 919 (Anderson) and People v. Ibarra (2007) 156 Cal.App.4th 1174 (Ibarra) have approved CALCRIM No. 224, which contains the same language defendant objects to in CALCRIM No. 225, but he argues that those decisions do not affect the outcome of this case because “neither the opinions in either of these two cases nor the appellant’s briefing in these two cases, discuss any direct evidence at all in either case, much less direct evidence subject to more than one interpretation.”
In Anderson, both direct and circumstantial evidence of the defendant’s guilt was presented. The victims identified the defendant to the police as the man who had put a knife to one of the victim’s throat, who had demanded and was given that victim’s wallet, and who had grabbed a cell phone from a console in the victim’s car. In addition, officers found a pocket knife on the defendant and the victim’s wallet and cell phone on the ground outside the defendant’s car. At trial, the jury found the defendant guilty of second degree robbery. (Anderson, supra, 152 Cal.App.4th at pp. 926-927.) On appeal, the defendant contended that, because CALCRIM No. 224 is limited to circumstantial evidence and sets forth basic reasonable doubt and burden of proof principles, it gives the false impression that these principles apply to circumstantial evidence but not to direct evidence. (Anderson, supra, 152 Cal.App.4th at p. 931.) In rejecting the defendant’s contention, the court stated that CALCRIM No. 224 “cautions the jury not to rely on circumstantial evidence to find the defendant guilty unless the only reasonable conclusion to be drawn from it points to the defendant’s guilt. In other words, in determining whether a fact necessary for conviction has been proved beyond a reasonable doubt, circumstantial evidence may be relied on only if the only reasonable inference that may be drawn from it points to the defendant’s guilt. [¶] The same limitation does not apply to direct evidence. Circumstantial evidence involves a two-step process: presentation of the evidence followed by a determination of what reasonable inference or inferences may be drawn from it. By contrast, direct evidence stands on its own. It is evidence that does not require an inference. Thus, as to direct evidence, there is no need to decide whether there is an opposing inference that suggests innocence.” (Ibid.)
The defendant in Anderson also challenged CALCRIM No. 224 by contending that “California law has long recognized the principle that ‘if two reasonable interpretations of the evidence exist, the one favoring the defendant’s innocence must be adopted,’ and this principle applies to both direct and circumstantial evidence.” (Anderson, supra, 152 Cal.App.4th at p. 931.) In rejecting this contention, the court stated, “[T]he question addressed by CALCRIM No. 224 is not how to consider the evidence as a whole but how to consider specific circumstantial evidence. The instruction concerns whether a necessary fact may reasonably be inferred from circumstantial evidence when that evidence can be construed in a way that points to the defendant’s innocence, not whether the evidence as a whole may reasonably be construed to point to the defendant’s innocence.” (Id. at p. 932.)
In Ibarra, the defendant was found guilty by a jury of one count of felony stalking and two counts of misdemeanor assault of his “live-in” girlfriend. (Ibarra, supra, 156 Cal.App.4th at p. 1178.) However, the appellate court did not outline the evidence supporting the conviction as most of the defendant’s 21 appellate issues related to the CALCRIM instructions given by the trial court. Relevant here, the defendant challenged CALCRIM No. 224 in part by criticizing the “ ‘intentional omission’ ” of direct evidence from its scope. (Ibarra, supra, 156 Cal.App.4th at p. 1186.) The court rejected the defendant’s challenge, stating: “Implicit in Ibarra’s argument is the assumption that circumstantial evidence and direct evidence are similarly situated, but that is not so. Circumstantial evidence involves a two-step process-first, the parties present evidence and, second, the jury decides which reasonable inference or inferences, if any, to draw from the evidence-but direct evidence stands on its own. So as to direct evidence no need ever arises to decide if an opposing inference suggests innocence.” (Id. at p. 1187, citing Anderson, supra, 152 Cal.App.4th at p. 931.)
In this case, as in Anderson, the prosecution presented both direct evidence and circumstantial evidence of defendant’s guilt. There was direct evidence that defendant shot Morales and Chavez: Chavez testified that he saw defendant take out his gun and repeatedly fire it at Morales and him, and Bell testified that he was with defendant at the time of the confrontation and he heard the gunshots but he did not see defendant firing the gun. The prosecution also presented circumstantial evidence of defendant’s intent and/or mental state: defendant saw Chavez, the person he had confronted and attempted to rob minutes before, with another person; Chavez was wearing blue both times defendant saw him; defendant asked Chavez if he was a Sureño gang member the first time he saw him; defendant said “Sureños” when he saw Morales with Chavez; defendant suddenly pulled out his gun and shot at both Chavez and Morales; defendant then followed Morales when he tried to flee; Morales died from his gunshot wounds and Chavez was seriously injured. CALCRIM No. 225 informed the jury that it could not convict defendant of murder or voluntary manslaughter for killing Morales or attempted murder or attempted voluntary manslaughter for seriously injuring Chavez unless it found that the only reasonable conclusion supported by the circumstantial evidence was that defendant had the required intent and/or mental state for those offenses. On this record, we cannot say that the court erred or violated defendant’s due process rights when it instructed the jury with CALCRIM No. 225. (Anderson, supra, 152 Cal.App.4th at p. 931.)
CALCRIM Nos. 371 and 372
The court instructed the jury pursuant to CALCRIM No. 371 as follows: “If the defendant tried to hide evidence, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself.” The court instructed the jury pursuant to CALCRIM No. 372 as follows: “If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.”
Defendant contends that, “[u]nder the circumstances of this case-where the theory of defense was that defendant was guilty of the lesser crime of voluntary manslaughter and attempted voluntary manslaughter-these instructions were improper. Both allowed the jury to consider suppression and flight as circumstances in deciding [defendant’s] ‘guilt’ of the charged offenses. Although [the] evidence certainly supports an inference that [defendant] was conscious of committing a crime, the evidence does not logically support an inference of those elements necessary to establish murder or attempted murder.” “Proof of a defendant’s suppression of evidence and flight has no connection in reason or experience with the various mental states required for a ‘consciousness of guilt’ of murder (as opposed to the lesser level of criminal homicide of voluntary manslaughter.) Thus, the inferences permitted by these instructions are arbitrary and it is a denial of the Due Process Clause of the Fourteenth Amendment to so instruct the jury.”
Defendant acknowledges that “the California Supreme Court has rejected this argument in a number of cases. For example, in People v. Yeoman (2003) 31 Cal.4th 93, the Court faced a similar argument, rejecting a capital defendant’s claim that several standard instructions [on suppression of evidence and conscious possession of recently stolen property] created an impermissible inference. (31 Cal.4th at p. 131.)... [T]his part of Yeoman is incorrectly decided. But to the extent Yeoman (or any of the Court’s other precedents) control resolution of this issue (see Auto Equity Sales Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), [defendant] is nevertheless raising the issue here to preserve his rights to further review.”
CALCRIM Nos. 371 and 372 permitted, but did not require, the jury to conclude that defendant’s suppression of evidence and flight showed consciousness of guilt of murder and attempted murder. (People v. Yeoman, supra, 31 Cal.4th at p. 131.) They also permitted, but did not require, the jury to conclude that the evidence showed consciousness of guilt of the lesser included charges of voluntary manslaughter and attempted voluntary manslaughter. Thus, it was proper for the trial court to give these instructions even though this is a case in which defendant admitted his identity as the perpetrator of a crime but contested the required mental state for the murder and attempted murder charges. “ ‘[W]e have repeatedly rejected the argument that instructions on consciousness of guilt, including instructions regarding the defendant’s flight following the crime, permit the jury to draw impermissible inferences about the defendant’s mental state, or are otherwise inappropriate where mental state, not identity is the principal disputed issue.’ [Citation.]” (People v. Martinez (2009) 47 Cal.4th 399, 450.) Accordingly, we must reject defendant’s contention here.
Prosecutorial Misconduct
As part of his opening argument, the prosecutor asserted: “[V]oluntary manslaughter [is] the actual belief in imminent great bodily injury, and it has to be unreasonable, or one of these two have to be unreasonable. [¶] It’s also the actual but unreasonable belief in the use of force to defend yourself. [¶] That’s it in a nutshell. I mean, the instruction [is] not long, but there’s a problem with this instruction and whether it applies. This is what you will hear [defendant’s] counsel talk about, literally ad nauseam, and he will show you this instruction again and again, ‘cause he’s going to say, hey, if you’re a gang member and you see someone in blue, you have the right to fear imminent GBI. Add to that you just knocked over the wife, so you can expect retaliation. So before you can see a gun, see a knife, hear any type of threats, do anything, you’re allowed to just start shooting ‘em up. Kind of like, what the heck? Because you’re a gang member and you wear red. That’s what he’s going to argue to you. You will see that instruction up on this board. [¶] He will talk about actual belief, the fear, the actual fear of [defendant]. Huh-uh. The actual fear of imminent GBI. Huh-uh. There’s been absolutely no evidence to support that. None.” (Italics added.)
Defendant contends that “[t]he only person who could testify as to whether [defendant] was actually afraid, of course, was the defendant himself.” Therefore, the italicized portion of the prosecutor’s argument was an improper comment on defendant’s right to not testify under Griffin v. California (1965) 380 U.S. 609 (Griffin). “Griffin error occurs even if there is no direct comment on the defendant’s failure to testify so long as the ‘net effect’ of the prosecutor’s argument focuses on defendant’s refusal to testify.” “Here, the state will be unable to prove the error harmless because the prosecutor’s comment struck at the heart of imperfect self-defense-the entire defense theory of the case. Reversal is required.” Defendant further contends that “review of this issue is appropriate notwithstanding the absence of an objection below.”
The Attorney General contends that “any alleged error has been waived. Alternatively, the prosecutor did not commit prejudicial misconduct.”
“Pursuant to Griffin, it is error for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf. [Citations.]” (People v. Hughes (2002) 27 Cal.4th 287, 371-372.) It is also “error for the prosecution to refer to the absence of evidence that only the defendant’s testimony could provide. [Citation.]” (Id. at p. 372.) However, Griffin does not prohibit “ ‘ “comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses.” ’ [Citations.]” (People v. Harrison (2005) 35 Cal.4th 208, 257.)
Where, as here, defense counsel did not object at trial to alleged prosecutorial misconduct, the defendant may argue on appeal that counsel’s inaction violated the defendant’s constitutional right to effective assistance of counsel. (People v. Lopez (2008) 42 Cal.4th 960, 966 (Lopez).) Therefore, we will address the merits of defendant’s claim of Griffin error despite the lack of an objection below. However, where the prosecutor’s comments were not improper, there was no reason for an objection by defense counsel and the claim of ineffective assistance of counsel must fall. (Id. at p. 968.)
“ ‘To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood that the jury understood or applied the complained-of comments in an improper or erroneous manner.’ [Citation.]” (People v. Wilson (2005) 36 Cal.4th 309, 337.) “In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.” (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) “We presume the jurors treated ‘the prosecutor’s comments as words spoken by an advocate in an attempt to persuade’ [citation]....” (People v. Cole (2004) 33 Cal.4th 1158, 1204.) Additionally, while a defendant may single out certain comments made by the prosecutor during argument in order to demonstrate misconduct, as the reviewing court we “must view the statements in the context of the argument as a whole.” (Id. at p. 1203.)
We are not convinced that the prosecutor’s argument constituted misconduct, or that there is a reasonable likelihood that the jurors understood the prosecutor’s argument as an improper comment on defendant’s failure to testify. It is true that “a prosecutor may commit Griffin error if he or she argues to the jury that certain testimony or evidence is uncontradicted, if such contradiction or denial could be provided only by the defendant, who therefore would be required to take the witness stand.” (People v. Bradford (1997) 15 Cal.4th 1229, 1339.) But this does not mean that a comment on the absence of testimony is equivalent to a comment on defendant’s failure to testify. By couching his argument in general terms (“There’s been absolutely no evidence to support that. None.”), the prosecutor in this case made it clear that he was remarking on the state of the evidence rather than on defendant’s silence. (See People v. Morris (1988) 46 Cal.3d 1, 36, disapproved on other points in In re Sassounian (1995) 9 Cal.4th 935, 543-545, fns. 5 & 6.)
Viewed in context, the prosecutor’s comments were a permissible reference to the state of the evidence. The prosecutor did not allude to the lack of testimony by defendant, but rather to the lack of evidence to support defendant’s theory of defense. (See People v. Mitcham (1992) 1 Cal.4th 1027, 1051 [no Griffin error when the prosecutor did not argue that the evidence of defendant’s intent was uncontradicted by defendant]; People v. Bradford, supra, 15 Cal.4th at p. 1340 [no Griffin error when the prosecutor did not allude to the lack of refutation or denial by the defendant, but rather to the lack of evidence].) “In any event, ‘indirect, brief and mild references to a defendant’s failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error. [Citations.]’ [Citation.]” (Ibid.) There was no suggestion by the prosecutor in this case that the jury should draw an adverse inference from defendant’s decision not to testify. Therefore, the prosecutor’s remarks did not amount to prejudicial Griffin error.
The Section 186.22, Subdivision (b)(1) Enhancement
The trial court imposed a consecutive 10-year enhancement pursuant to section 186.22, subdivision (b)(1), to the indeterminate term of 40 years to life on count 1. Defendant contends that this was error, and the Attorney General concedes the error. We agree with the concession. Section 186.22, subdivision (b)(5) states in relevant part that “any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served.” When subdivision (b)(5) governs, as it does here, a court errs in applying the 10-year gang enhancement pursuant to subdivision (b)(1) to a defendant’s indeterminate life term. (People v. Lopez (2005) 34 Cal.4th 1002, 1010-1011; People v. Fiu (2008) 165 Cal.App.4th 360, 390.) Therefore, we will order the judgment modified by striking the 10-year gang enhancement imposed on count 1.
DISPOSITION
The judgment is ordered modified by striking the consecutive 10-year enhancement under Penal Code section 186.22, subdivision (b)(1), imposed on count 1. As so modified the judgment is affirmed. The clerk of the superior court is ordered to prepare a corrected abstract of judgment and to send a copy of the corrected abstract to the Department of Corrections and Rehabilitation.
WE CONCUR: MIHARA, J. MCADAMS, J.