Opinion
E071924
11-15-2021
THE PEOPLE, Plaintiff and Respondent, v. RONNY JOE MITCHELL, JR., Defendant and Appellant.
Raymond Mark DiGuiseppe, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Mark Mandio, Judge. Affirmed.
Raymond Mark DiGuiseppe, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I
INTRODUCTION
A jury convicted defendant and appellant, Ronny Joe Mitchell, Jr., of second degree murder (Pen. Code, § 187, subd. (a)), and the trial court sentenced him to 45 years to life, plus one year. On appeal, he argues his conviction must be reversed because of evidentiary, instructional, and cumulative error. We find no prejudicial error and affirm the judgment.
Unless otherwise indicated, all further statutory references are to the Penal Code.
II.
FACTUAL AND PROCEDURAL BACKGROUND
The victim, Moses Almaraz, rode his bicycle past F.R.'s house. F.R.'s son, F.R.J., was working on a car in front of the house with a friend, J.D. Defendant, a friend of F.R.'s, was sitting in his car parked on the street.
Almaraz stopped, dropped his bicycle, and began yelling at F.R.J. and J.D. F.R.J., who is African American, testified that Almaraz called him a "n-er." J.D. did not recall Almaraz using that word, but he thought Almaraz wanted to start a fight because of the way he was acting.
J.D. asked Almaraz what he said, and Almaraz replied, "You heard what the f-k I said," and told F.R.J. and J.D. that he would fight both of them. J.D. began walking toward Almaraz, but stopped when Almaraz reached into his pocket.
Defendant got out of his car and told Almaraz to go away. Defendant walked over to Almaraz, put his hand on Almaraz's shoulder, walked away with him, and told Almaraz that he was saving his life. Almaraz said, "'You didn't do shit for me, '" and unsuccessfully tried to punch defendant. Defendant grabbed Almaraz by the neck and pushed him away, but Almaraz went after defendant again. Defendant put Almaraz into a chokehold and stabbed him in the chest twice with "uppercut" motions. Almaraz walked away and said, "'I'll be back.'" Almaraz was later found dead down the street from F.R.'s house.
After Almaraz walked away, defendant told F.R.J and J.D., "Nobody better say shit." F.R.J. testified that defendant also threatened to kill him and J.D. if they "talked." Defendant then drove away.
A jury found defendant guilty of second degree murder (§ 187, subd. (a)). It also found that he personally used a deadly and dangerous weapon, a knife, under sections 12022, subdivision (b)(1) and 1192.7, subdivision (c)(23). The trial court sentenced defendant to 45 years to life, plus one year.
III.
DISCUSSION
On appeal, defendant argues the trial court prejudicially erred by admitting (1) evidence about an incident where defendant "pulled" a knife on someone else a few weeks before he stabbed Almaraz, (2) J.D.'s interviews with police, and (3) evidence from defendant's employer about how he was acting in the days and hours before he stabbed Almaraz. Defendant also contends the trial court erroneously instructed the jury on uncharged offense evidence and that cumulative error warrants reversal.
A. Prior Knife Incident
Defendant contends the trial court erred in admitting R.A.'s testimony about an incident where defendant "pulled" a knife on him a few weeks before he stabbed Almaraz. We agree, but conclude the error was harmless.
1. Background
Before trial, the People moved in limine to allow R.A. to testify about defendant's pulling a knife on him a few weeks before he stabbed Almaraz. The trial court granted the motion, reasoning that R.A.'s testimony was admissible to prove defendant's intent because the two incidents were sufficiently similar and the uncharged incident involving R.A. was less inflammatory.
R.A. testified at trial about the incident as follows. R.A. is a friend of F.R.J., knew his family well, and frequently visited his house. A few weeks before defendant stabbed Almaraz, R.A. went to visit F.R.J. at his house. When R.A. walked into the yard, defendant pulled out a knife from under his coat, placed it to R.A.'s chest, and then "put it back away." R.A. thought defendant was "kind of angry," but not at him. R.A. "really wasn't sure what to think" about the incident because he had no issues with defendant. Later that evening, R.A. saw defendant showing the knife to other people and heard him say, "I've got this in case of anything."
2. Applicable Law and Standard of Review
Evidence Code section 1101, subdivision (a) provides (with a few inapplicable exceptions) that evidence of a person's character or a character trait is inadmissible when offered to prove the person's conduct on a specified occasion. Evidence Code section 1101, subdivision (b), however, allows the admission of evidence that a person committed a crime "when relevant to prove some fact (such as . . . intent . . .) other than his or her disposition to commit such an act." (Evid. Code, § 1101, subd. (b).)
"Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. 'In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it. [Citations.]'" (People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2, superseded by statute on other grounds as explained in People v. Falsetta (1999) 21 Cal.4th 903, 911-913.) "'The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.]'" (People v. Kelly (2007) 42 Cal.4th 763, 783 (Kelly).)
"'[T]he admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.' [Citation.]" (Kelly, supra, 42 Cal.4th at p. 783.) In other words, "[t]here must be sufficient evidence for the jury to find defendant committed both sets of acts, and sufficient similarities to demonstrate that in each instance the perpetrator acted with the same intent or motive." (People v. McCurdy (2014) 59 Cal.4th 1063, 1097.)
The admissibility of other crimes evidence thus "turns largely on the question whether the uncharged acts are sufficiently similar to the charged offenses to support a reasonable inference of the material fact they are offered to prove." (People v. Erving (1998) 63 Cal.App.4th 652, 659-660.) But because "other-crimes evidence is so inherently prejudicial, its relevancy is to be 'examined with care, '" must be "received with 'extreme caution,' and all doubts about its connection to the crime charged must be resolved in the accused's favor." (People v. Alcala (1984) 36 Cal.3d 604, 631, abrogated by statute on another ground as explained in People v. Falsetta, supra, 21 Cal.4th at p. 911.)
Even if evidence of a prior crime is admissible under Evidence Code section 1101, the trial court may exclude it under Evidence Code section 352 if it is unduly prejudicial. Evidence that is unduly prejudicial "'"uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues."'" (People v. Doolin (2009) 45 Cal.4th 390, 439.)
We review the trial court's rulings under Evidence Code sections 1101 and 352 for an abuse of discretion. (People v. Jefferson (2015) 238 Cal.App.4th 494, 502; People v. Rogers (2013) 57 Cal.4th 296, 326.) The trial court abuses its discretion if it exercises its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rogers, supra, at p. 326.)
2. Analysis
As noted, "'[t]he least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.]'" (Kelly, supra, 42 Cal.4th at p. 783.) Yet "the similarities between the two events must be substantial enough to have probative value." (People v. Winkler (2020) 56 Cal.App.5th 1102, 1145.) We conclude R.A.'s testimony about defendant's "pulling" a knife on him was inadmissible under Evidence Code section 1101, subdivision (b) because the incident was insufficiently similar to Almaraz's murder.
The People argue the incidents were sufficiently similar because there was evidence defendant may have used the same knife in both incidents. Defendant's supervisor testified that defendant usually carried a knife. R.A. described the knife that defendant "pulled" on him as a fixed-blade knife larger than "an average knife." F.R. described the knife that defendant used to stab Almaraz as a fixed-blade knife about six to eight inches long. From this evidence, the trial court and the jury could have reasonably concluded that defendant "pulled" the same knife on R.A. that he used to stab and kill Almaraz
But even if defendant used the same knife in both incidents, the People do not cite, nor can we locate, any authority that suggests this rendered R.A.'s testimony admissible under Evidence Code section 1101, subdivision (b). As defendant correctly notes, there were multiple, significant differences between the incident with R.A. and defendant's stabbing Almaraz to death.
To begin with, defendant did not stab R.A. He only put a knife up to R.A.'s chest as R.A. walked into F.R.'s yard. R.A. did not testify that this scared him, but rather that he "really wasn't sure what to think" of it because he had no problems with defendant. And while defendant knew R.A., a welcomed family friend of F.R. and F.R.J., none of them knew Almaraz, who acted aggressively toward F.R.J. and J.D. without provocation.
The People also argue the incidents were similar because neither "offered a legitimate threat" to defendant because he is much larger than Almaraz and F.R.J., and neither of them was armed. But Almaraz acted aggressively toward defendant and tried to punch him, and thus posed at least some threat to defendant. R.A. did not pose any threat to defendant before defendant "pulled" the knife on him.
More to the point, defendant's interactions with R.A. and Almaraz were markedly different. Defendant "pulled" a knife on R.A., put it to his chest, and then put it away. R.A. was unsure why defendant did so, and there is no evidence that R.A. was scared or thought that defendant intended to cause him harm. There is also no evidence that R.A. provoked defendant in any way.
By contrast, defendant responded to Almaraz's aggressive behavior toward F.R.J. and J.D. by telling him to go away. He then walked with Almaraz with his arm around him and told him that he was "saving his life." Almaraz replied, "You didn't do shit for me" and tried to punch defendant. Defendant grabbed Almaraz by the neck and pushed him away. When Almaraz tried to physically confront defendant again, defendant put him into a chokehold and fatally stabbed him in the chest twice.
The incident with R.A. involved only defendant's brandishing a knife and holding it to R.A.'s chest, then putting it away, whereas the physical altercation between Almaraz and defendant ended with defendant stabbing and killing him in response to Almaraz's aggressive behavior. The only real similarity between the incidents is that defendant potentially used the same knife.
We therefore conclude the two incidents are not "similar enough to support the inference that the defendant probably bore the same intents each time." (People v. Williams (2018) 23 Cal.App.5th 396, 420.) Rather, "the dissimilarity between the two incidents is so great that the evidence of the uncharged act had no (or very little) 'tendency in reason' . . . to speak to defendant's mental state during the charged act." (Id. at p. 413.)
People v. Guerrero (1976) 16 Cal.3d 719 (Guerrero) supports this conclusion. In that case, the defendant was charged with murdering the victim, Santana. (Id. at p. 722.) Another alleged victim, Lopez, claimed that the defendant and two of his friends sexually assaulted her six weeks before Santana's murder. (Id. at pp. 722-723.) Lopez also claimed that while driving away after the assault, the defendant "picked up a lug wrench with his right hand, turned to [] Lopez, and smiled," which she took as a threat to stop her from reporting the assault. (Id. at p. 723.) The defendant was later charged with killing Santana, whose injuries "could have been inflicted by a lug wrench," although the defendant was never found with a lug wrench. (Ibid.)
Our Supreme Court held that the trial court erred by admitting Lopez's testimony about the defendant's threat with a lug wrench under Evidence Code section 1101, subdivision (b). (Guerrero, supra, 16 Cal.3d at p. 730.) The Guerrero court reasoned that defendant's "ambiguous threat purportedly made to silence . . . Lopez after a rape was committed by three persons is not so similar to the actual use of a wrench in an offense in which no rape is committed that it tends to prove a material element of the People's case." (Id. at p. 729.) Defendant's "pulling" a knife on R.A. and then putting it away for an unknown reason is likewise "not so similar to" his using the same knife to stab A.M. to death.
People v. King (2010) 183 Cal.App.4th 1281 (King), also is instructive. There, the defendant, a police officer, was charged with sexually assaulting the victim, Nicole, during a traffic stop. (Id. at pp. 1286-1287.) Nicole alleged that the defendant fondled her breasts for about a minute and digitally penetrated her vagina under the guise of searching for drugs. (Ibid.)
During the defendant's trial, the trial court allowed the prosecution to introduce evidence under Evidence Code section 1101, subdivision (b) of an uncharged incident involving the defendant and a minor female, Regina. (King, supra, 183 Cal.App.4th at pp. 1295-1296.) While the defendant was a police officer at Regina's high school, he asked her if she was a "slut" or a "whore" who gave "blowjobs under the table" and whether she found him attractive. (Ibid.) He also told Regina that he knew her age and that she had a belly button ring, which she thought only her close friends knew. (Ibid.)
The King court held the trial court abused its discretion by admitting evidence of the uncharged incident between the defendant and Regina because it was too dissimilar to the sexual assault the defendant was charged with committing against Nicole. (King, supra, 183 Cal.App.4th at pp. 1302-1303.) The court reasoned that although the defendant engaged in "arguably threatening, sexually offensive and boorish behavior" toward Regina, he never touched her, whereas he fondled Nicole's breasts and digitally penetrated her vagina while purportedly searching her for drugs. (Id. at p. 1302.) And although the defendant "had clearly been focused on [Regina] for some period of time" and "obtained a significant amount of information about [Regina's] life," Nicole was "a complete stranger" to the defendant. (Ibid.)
Guerrero and King demonstrate that the trial court erroneously admitted R.A.'s testimony about defendant's "pulling" a knife on him because it was not "similar enough to support the inference that the defendant probably bore the same intent[]" when he killed Almaraz. (People v. Williams, supra, 23 Cal.App.5th at p. 420.) In Guerrero, the defendant's perceived threat to Lopez with the wrench after an alleged gang-rape had no tendency to prove his intent to murder Santana.
In King, the defendant sexually assaulted Nicole, a "complete stranger," but did not touch Regina, whom he "had been focused on . . . for some period of time." Similarly, defendant and R.A. knew each other and had no problems with one another, but defendant did not know Almaraz, who provoked F.R.J. and J.D. for no apparent reason and tried to punch defendant twice. Defendant's briefly pulling a knife on R.A. thus had no "tendency in reason" to prove that defendant harbored a similar intent to kill R.A. as he did when he stabbed Almaraz to death in response to Almaraz's aggressive behavior.
A recent case (decided after the parties filed their briefs in this case) bolsters our conclusion that R.A.'s testimony was inadmissible under Evidence Code section 1101, subdivision (b). In People v. Dryden (2021) 60 Cal.App.5th 1007 (Dryden), the defendant was charged with assault with a deadly weapon. The People sought to admit under Evidence Code section 1101, subdivision (a) evidence of two uncharged acts, one from 2007 and another from 2012, where the defendant claimed self-defense after physical altercations. The People argued there, as they do here, that the evidence was relevant to defendant's intent in that it would dispel the defendant's claim of self-defense.
The trial court admitted the uncharged acts evidence under Evidence Code section 1101 on the ground it was sufficiently similar to the defendant's charged offense. The trial court observed that the defendant claimed self-defense in all three instances. The trial court also noted that in 2012 the uncharged offenses, like the charged offense, the defendant was intoxicated and hit the victim on the head with an object.
The Dryden court held the uncharged acts evidence was inadmissible under Evidence Code section 1101 because they were insufficiently similar to the charged offense. The court reasoned that the 2007 incident, where defendant got into a physical altercation with his father, was similar to the charged offense "only in that defendant committed an assault and initially claimed self-defense." The Dryden court thus held evidence about the 2007 incident was unlikely to show that "defendant fabricated a selfdefense claim several years later [in the charged offense] under entirely different circumstances." Because there was no "logical nexus" between the 2007 offense and the defendant's "disputed mental state" as to the charged offense, "the trial court's ruling was an abuse of discretion" under Evidence Code section 1101.
The Dryden court held the 2012 incident was inadmissible under Evidence Code section 352 and did not decide whether it was admissible under Evidence Code section 1101.
Similarly, we find there is no logical nexus between defendant's "pulling" a knife on R.A. and walking away and his conduct in stabbing Almaraz to death a few weeks later in response to Almaraz's aggression. Just as the dissimilar uncharged offense in Dryden shed no light on the defendant's mental state for the charged offense, the incident with R.A. sheds no light on defendant's "disputed mental state" in his altercation with Almaraz.
As we explained above (infra at pp.7-8), the dissimilarities between the incidents are stark. Defendant knew R.A., did not have any problems with him, did not stab him, and did not pull the knife on him out of alleged self-defense or because he provoked defendant. On the other hand, defendant did not know Almaraz, Almaraz acted aggressively toward defendant, J.D., and F.R.J., and defendant stabbed him to death after he tried to punch defendant at least twice. The only similarity between the incidents is that defendant may have used the same knife.
We emphasize that the People cite no authority that suggests this was enough to admit R.A.'s testimony under Evidence Code section 1101, subdivision (b). Nor are we aware of any. "[T]he dissimilarities between [defendant's] conduct toward [R.A.] and [Almaraz] were significant, while commonalities between the incidents were superficial." (King, supra, 183 Cal.App.4th at p. 1302, fn. omitted.) Given the significant dissimilarities between the incidents, the fact that defendant may have "pulled" the same knife on R.A. that he used to stab and kill Almaraz had little, if any, probative value as to defendant's mental state-not the "substantial probative value" required to admit R.A.'s testimony under Evidence Code 1101, subdivision (b). (People v. Thompson (1980) 27 Cal.3d 303, 318.) "[T]he similarities between the two events" were not "substantial enough to have probative value." (People v. Winkler, supra, 56 Cal.App.5th at p. 1145.) We therefore conclude the trial court abused its discretion in admitting R.A.'s testimony about defendant's pulling a knife on him during an unrelated incident.
But the error was harmless. "[R]eversal is required only if it is reasonably probable the defendant would have obtained a more favorable result had [R.A.'s testimony] been excluded." (People v. Carrillo (2004) 119 Cal.App.4th 94, 103; People v. Foster (2010) 50 Cal.4th 1301, 1332-1333 [applying standard of reversible error articulated in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) to erroneous admission of prior crimes evidence]; People v. Welch (1999) 20 Cal.4th 701, 749-750 [same].)
The evidence that defendant murdered Almaraz-and did not kill Almaraz in selfdefense, as he argued during the trial-was overwhelming. First, Almaraz was unarmed while defendant had a knife. Second, defendant was over twice Almaraz's weight: Almaraz was five feet six inches tall and 139 pounds, while defendant is six feet three inches and almost 300 pounds. Third, Almaraz was outnumbered when defendant stabbed him given that F.R.J. and J.D. were nearby. Fourth, F.R. testified that he saw defendant stab Almaraz and J.D. told detectives that he saw defendant "st[i]ck" Almaraz twice while defendant held him in a headlock. Fifth, although Almaraz unsuccessfully tried to punch defendant, there is no evidence that defendant tried to defend himself by other means, tried to deescalate the situation, or tried to walk away from Almaraz. Instead, defendant responded by immediately putting Almaraz in a chokehold and stabbing him twice in the chest. Finally, after stabbing Almaraz, defendant told F.R.J. and J.D. that he would kill them if they "talked" and that "[n]obody better say shit," which suggested that he did not believe he acted in self-defense. Taken together, there was strong evidence defendant murdered Almaraz and did not act in self-defense.
Defendant fails to show that R.A.'s testimony was "so extraordinarily prejudicial . . . that it threaten[ed] to sway the jury to convict regardless of defendant's actual guilt." (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) It is not reasonably probable that defendant would have obtained a better result had the trial court excluded R.A.'s testimony. We therefore conclude that, although the trial court erred in admitting his testimony, the error was harmless.
B. Admission of J.D.'s Interviews
Defendant contends the trial court prejudicially erred by allowing the People to play portions of J.D.'s recorded interviews with the detectives who investigated Almaraz's death. We conclude defendant forfeited the issue by failing to object to the admission of the interviews. We also conclude defendant fails to show that his trial counsel was ineffective for not objecting.
1. Background
With no objection from defendant, the trial court allowed the People to introduce parts of J.D.'s recorded interviews with detectives investigating Almaraz's death. During the interviews, the detectives suggested that defendant was a "monster" with "an extensive criminal history" who needed to be "locked up." The detectives told J.D. to cooperate with them so that they could "get [defendant] in custody" because they did not "want this guy to get back out" and that there was a "chance that he could get out and he could hurt people again."
2. Forfeiture
Defendant contends the trial court erred in admitting portions of J.D.'s interviews with the detectives because their "improper statements and opinions" amounted to inadmissible character evidence. We conclude defendant forfeited the argument by failing to object to the admission of J.D.'s testimony in the trial court. (See People v. Johnson (2012) 54 Cal.4th 758, 801 [defendant forfeited argument trial court improperly admitted witness's police interview because he failed to object to its admission in the trial court], disapproved on other grounds in People v. Rangel (2016) 62 Cal.4th 1192; People v. Raley (1992) 2 Cal.4th 870, 892 [defendant forfeited argument that admission of witness's statement violated his constitutional rights because he did not object to its admission in the trial court].)
3. Ineffective Assistance of Counsel
Defendant argues that even if he forfeited the issue, his conviction should be reversed because his trial counsel was ineffective for failing to object to the admission of J.D.'s interviews with the detectives. We exercise our discretion to address the issue on the merits "to avert [defendant's] claim of inadequate assistance of counsel," and reject the claim. (People v. Yarbrough (2008) 169 Cal.App.4th 303, 310.)
To establish ineffective assistance of counsel, "the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
On direct appeal, ineffective assistance is established "only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai, supra, 57 Cal.4th at p. 1009.) "[R]arely will an appellate record establish ineffective assistance of counsel." (People v. Thompson (2010) 49 Cal.4th 79, 122.) So "[w]hen the record on direct appeal sheds no light on why counsel failed to act in the manner challenged [the defendant asserts counsel should have acted], defendant must show that there was '"'no conceivable tactical purpose'" for counsel's act or omission. [Citations.]'" (People v. Centeno (2014) 60 Cal.4th 659, 675.) If the record sheds no light on counsel's actions, the claim must be rejected unless no satisfactory explanation exists or counsel was asked for an explanation and failed to provide one. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) "Because the decision whether to object is inherently tactical, the failure to object to evidence will seldom establish incompetence." (People v. Freeman (1994) 8 Cal.4th 450, 490-491.)
Defendant's trial counsel may have had strategic reasons not to object to the admission of J.D.'s police interviews. J.D. told the investigators that he saw defendant stab Almaraz. At trial, however, J.D. testified that he was testifying only because the prosecution and law enforcement "bullied" him, and that he "didn't see anything."
Because J.D. was a key eye witness, defendant's trial counsel may have reasonably decided not to object to the admission of J.D.'s police interviews. Defendant's counsel could have reasonably concluded that J.D.'s interviews with the detectives, which conflicted with his trial testimony, undermined his credibility. Defense counsel may have concluded that admitting J.D.'s interviews might bolster his statement that he testified only because the prosecution "bullied" him, which could weaken both the credibility of his interview statements and his conflicting trial testimony. Because defendant's trial counsel had conceivable tactical reasons not to object to the admission of J.D.'s interviews, we reject defendant's claim of ineffective assistance of counsel.
In any event, even if the trial court erred in admitting the detectives' statements during J.D.'s interviews, and even if defendant's trial counsel was ineffective for failing to object to their admission, we conclude any error was harmless. As outlined above, the evidence of defendant's guilt was overwhelming. It is thus not reasonably probable that defendant would have obtained a better result had J.D.'s interviews been excluded. (People v. Carrillo, supra, 119 Cal.App.4th at p. 103.)
We reject defendant's argument that the error should be assessed under Chapman because the detectives' statements were "highly prejudicial bad character evidence." (See People v. Malone (1988) 47 Cal.3d 1, 22 [error in admitting improper character evidence analyzed under Watson].)
C. Testimony About Defendant's Behavior Before Almaraz's Murder
Defendant contends the trial court prejudicially erred by admitting testimony from his boss, T.A., about his behavior before Almaraz's murder. We conclude defendant forfeited the issue by failing to object to T.A.'s testimony. We also conclude defendant fails to show that his trial counsel was ineffective for not objecting.
Without any objection from defendant, T.A. testified that he told defendant that a stabbing had occurred in front of F.R.'s house, which defendant "blew [] off." T.A. also testified that defendant visited him within hours before Almaraz's murder, and that he was acting aggressively. T.A. explained that in the "couple of days" before Almaraz's murder, defendant "had been acting aggressive, on edge, and crazy." According to T.A., defendant was not acting like himself and had been "acting more crazy and aggressive than normal." Defendant also told T.A. that "he was having troubles with his girlfriend."
Defendant concedes he did not object to any of T.A.'s testimony. He therefore forfeited any argument that the trial court erroneously admitted T.A.'s testimony. (See People v. Raley, supra, 2 Cal.4th at p. 892; People v. Johnson, supra, 54 Cal.4th at p. 801.)
Nonetheless, defendant argues we should address the issue on the merits because his trial counsel was ineffective for failing to object to T.A.'s testimony. (See People v. Yarbrough, supra, 169 Cal.App.4th at p. 310.) We disagree that his counsel was ineffective.
Defendant's theory at trial was that he stabbed Almaraz in self-defense when Almaraz provoked him. The People, on the other hand, argued that defendant intentionally murdered Almaraz.
T.A.'s testimony that defendant was unusually aggressive and acting "crazy" in the days and hours before he stabbed Almaraz was relevant to defendant's intent. (See People v. Anderson (1968) 70 Cal.2d 15, 27 [evidence of defendant's behavior before murder is relevant to intent].) Given that T.A.'s testimony was relevant to the crucial issue of defendant's intent, defense counsel may have reasonably concluded that any objection to T.A.'s testimony would have been futile. We therefore reject defendant's claim of ineffective assistance of counsel. (People v. Anderson (2001) 25 Cal.4th 543, 587 ["Counsel is not required to proffer futile objections" to avoid an ineffective assistance of counsel claim]; People v. Gray (2005) 37 Cal.4th 168, 207-208 [no ineffective assistance of counsel when "defense counsel reasonably may have decided to forgo making a similar objection during the prosecutor's closing argument, believing such an objection would have been futile"].)
In any event, we conclude the error in admitting T.A.'s testimony, if any, was harmless given the overwhelming evidence of defendant's guilt discussed above. (People v. Carrillo, supra, 119 Cal.App.4th at p. 103.)
D. Instructional Error
The trial court instructed the jury with CALCRIM No. 375, which provided in relevant part that "[t]he People presented evidence that the defendant committed another offense that was not charged in this case" and, if the jury found that "the defendant committed the uncharged offense," it could "consider that evidence for the limited purpose of deciding whether: [¶] [t]he defendant acted with malice aforethought in this case." The instruction also explained that the uncharged offense evidence was "not sufficient by itself to prove the defendant is guilty of murder. The People must still prove the charge and allegation beyond a reasonable doubt."
Defendant argues the instruction was improper because it told the jury it could consider R.A.'s testimony about defendant's "pulling" a knife on him, which the trial court improperly admitted, to evaluate his intent. Thus, in defendant's view, instructing the jury with CALCRIM No. 375 "compounded" the trial court's evidentiary error of admitting R.A.'s testimony.
We first reject the People's contention that defendant forfeited the argument by failing to object to the trial court's instructing the jury with CALCRIM No. 375. (§ 1259 ["The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby."]; see also People v. Jimenez (2016) 246 Cal.App.4th 726, 730 ["'"Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim"'"].) Even if defendant forfeited his argument that the trial court improperly instructed the jury with CALCRIM No. 375, we exercise our discretion to address the issue on the merits "to avert [defendant's] claim of inadequate assistance of counsel." (People v. Yarbrough, supra, 169 Cal.App.4th at p. 310.)
We assume without deciding that the trial court erroneously instructed the jury with CALCRIM No. 375. Without citing any applicable authority, defendant contends we must assess the error under the more stringent Chapman federal standard. We disagree. (See People v. Foster, supra, 50 Cal.4th at p. 1333 [applying Watson to alleged error in instructing jury that it could consider evidence of the defendant's prior crimes to prove his identity as perpetrator of charged offense]; People v. Jones (2012) 54 Cal.4th 1, 54 [applying Watson to assess error in prior crimes instruction]; People v. Rivas (2013) 214 Cal.App.4th 1410, 1421-1422 [same].) As explained above, the evidence of defendant's guilt is overwhelming. It is thus not reasonably probable that defendant would have obtained a better outcome had the trial court not instructed the jury with CALCRIM No. 375. As a result, any error in giving the instruction was harmless. The instruction also did not violate defendant's federal rights "because the instruction[] did not 'infect[] the entire trial.' [Citation.]" (People v. Jones, supra, at p. 54.)
E. There Was No Prejudicial Cumulative Error
Defendant asserts that even if the alleged errors discussed above do not individually warrant reversal, their cumulative effect does. We disagree.
"'[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.'" (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) "The 'litmus test' for cumulative error 'is whether defendant received due process and a fair trial.'" (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)
Here, the trial court's only error was admitting R.A.'s testimony about defendant "pulling" a knife on him, and we have assumed the court erred by instructing the jury with CALCRIM No. 375. As explained above, any error was harmless. Under these circumstances, reversal is not required. (See People v. Box (2000) 23 Cal.4th 1153, 1214 ["The few errors that may have occurred during defendant's trial were harmless whether considered individually or collectively."], disapproved on another ground in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10.) Even considering the actual and assumed errors in the aggregate, defendant was not deprived of a fair trial or denied due process. "Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice." (People v. Hill (1998) 17 Cal.4th 800, 844.) Defendant has not made such a showing, so we reject his claim of cumulative error.
IV.
DISPOSITION
The judgment is affirmed.
We concur: MILLER Acting P. J., MENETREZ J.