Opinion
G060038
07-28-2021
THE PEOPLE, Plaintiff and Respondent, v. LEONARD ISAI MONREAL, Defendant and Appellant.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Seth K. Schalit, Gerald A. Engler, and Dorian Jung, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Santa Clara County, No. C1762733 Shelyna V. Brown, Judge. Affirmed.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Seth K. Schalit, Gerald A. Engler, and Dorian Jung, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O'LEARY, P. J.
Leonard Isai Monreal appeals from a judgment after a jury convicted him of assault with a deadly weapon causing great bodily injury. Monreal argues the trial court erroneously instructed the jury, his trial counsel was ineffective, the prosecutor committed misconduct, the court erred by denying his new trial motion, and there was cumulative error. None of his contentions have merit, and we affirm the judgment.
FACTS
Monreal fought his ex-girlfriend's boyfriend and stabbed him with a pocketknife five times. An amended information charged Monreal with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), all further statutory references are to the Penal Code, unless otherwise indicated) (count 1), and alleged he caused great bodily injury (§ 12022.7, subd. (a)).
I. Prosecution Evidence
Monreal and Kassandra G.'s (Kassandra) daughter (Daughter) was born in 2009. They had an intermittent relationship until July 2016 when Monreal moved out of Kassandra's home. Monreal went to the house a couple times a week to pick up Daughter. Kassandra's brother, Victor G. (Victor) often stayed at her home.
Kassandra started dating Salvador Roman in June 2016. Monreal and Kassandra continued to have a sexual relationship for several months after she began dating Roman, but she denied it when Roman asked her.
Monreal and Roman's relationship was acrimonious from the beginning. Roman was sitting in his car outside of Kassandra's house waiting for her. Monreal parked his car behind Roman's car. Monreal got out of his car and got into Roman's car. This was the first time they met. They both got out of the car and met behind the car. Monreal was five feet nine inches tall and weighed 135 pounds. Roman was six feet three inches tall and weighed 215 pounds. Monreal swung at Roman. Roman grabbed Monreal, forced him to the ground, and sat on top of him until Kassandra and her family separated them.
Sometime later, Roman was walking on a street when Monreal, who was smiling, followed him in a car for about 10 minutes. While Monreal was stopped at a light, Roman ran across the street and onto a median next to Monreal's car. Roman yelled at Monreal and asked why he was following him. Monreal displayed a pocketknife.
They continued quarreling on social media. Roman called Monreal “‘baby dick'” and “‘pussy, '” said he “dropped” him in a fight, told him “to watch his back, ” and threatened to report him to immigration authorities. Roman conceded Monreal's messages included no threats. Monreal did, however, send him photographs of him and Kassandra having sex.
One evening in April 2017, Monreal dropped off Daughter at Kassandra's house. Roman stood at the top of the stairs while Kassandra opened the front door. Daughter walked up the stairs. Monreal told Kassandra to be careful with Roman around Daughter. A few minutes passed and Roman went downstairs. Monreal was outside the front door with his left foot in the doorway. Monreal and Roman “locked eyes” on each other. Monreal said, “‘Do you have something to say, little bitch?'” Kassandra told Roman to be quiet and not do anything, but Roman told Monreal to leave. Kassandra told Monreal to leave.
Roman and Kassandra provided the following testimony concerning how the fight started. Roman testified he and Kassandra tried to close the front door but they could not because Monreal's foot was across the threshold preventing the door from closing. Monreal used his shoulder to force the door open and entered the home. After her recollection was refreshed with her statements to the police, Kassandra confirmed that after she told Monreal to leave, his foot prevented them from closing the front door.
Roman testified Monreal immediately started punching him with a closed fist, once on the forehead and once on the lip. Kassandra could not remember who threw the first punch. She made the following statements: “I guess when he started to fight, he ended up coming inside[]”; “they just started throwing punches. They both did. And the next thing you know they're... in my living room[]”; and “it could have been when he was coming in when they were fighting. I guess that he ended up just coming inside[.]” She said that from the time Roman came downstairs to when they started fighting was “a couple seconds”
Roman testified he hit Monreal with a closed fist a few times, and they “box[ed]” each other. They fell on the couch and then the floor, with Roman on top of Monreal. Roman stated that at one point, Monreal was on top of him and had him in a headlock. Kassandra disputed this, stating Roman was always on top of Monreal. Roman testified they both paused when Daughter came downstairs and asked Roman to stop because she loved her father.
Roman testified Monreal stood up and bit his finger. While he clenched down on his left index finger, Monreal stabbed Roman a few times on his left arm. He then stabbed him on the chest and abdomen. Roman slipped on his own blood.
Kassandra jumped on Monreal to grab the knife. She yelled at Victor to help. Victor came downstairs and saw Monreal and Roman grappling on the couch and the ground. He told them to stop, but they continued fighting. Victor tried to separate them and when they eventually stopped fighting, he escorted Monreal outside and locked the door. Monreal tried to go back in the house to get his phone, wallet, and keys, which he had dropped, but they did not let him in.
Kassandra called 911. Police officers arrived, arrested Monreal, and recovered the knife. Roman required 29 stitches.
II. Defense Evidence
Monreal admitted that in 2010, he was convicted of domestic violence for pushing Kassandra. As to the first time he met Roman, Monreal stated Roman approached him, hit him, threw him down, and pinned him to the ground. With respect to the second incident, Monreal stated he was stopped at an intersection when Roman ran across the street and yelled at him to get out of the car and fight. Monreal admitted he carried a pocketknife because he had previously been attacked, but denied showing it to Roman. Monreal testified concerning their online insults and admitted he sent Roman photographs of he and Kassandra having sex during the time Roman was dating her.
As to the charged offense, Monreal testified he took Daughter to the movies. He did not have his pocketknife in the movie theater, but he clipped it to his pants before dropping off Daughter at Kassandra's house. Daughter went inside, and Monreal stepped inside the dark living room to embrace her and tell her goodbye. After Daughter went upstairs, Monreal told Kassandra it was inappropriate for Daughter to sleep in the same bed with her and Roman. Roman ran downstairs and stood next to Kassandra within arm's reach of Monreal. Roman said, “‘What's up little dick?'” Kassandra told Roman to be quiet, which appeared to upset him.
Roman grabbed the front door with both hands and “slammed” it against Monreal. As Roman tried to push him out of the house, Monreal grabbed his hands and they wrestled. Kassandra yelled for Victor. Roman grabbed Monreal's chest and pushed him on to the couch. Monreal struggled to break free, and they slid onto the floor. Roman repeatedly punched Monreal in the face for a few minutes. Monreal could not defend himself and tasted blood. Monreal felt somebody else hit him on the right side and thought it was Kassandra or Victor. Roman pushed Monreal's face with his hand, and Roman's finger entered Monreal's mouth. Monreal bit his finger as hard as he could, and Monreal stood up. Roman kept hitting Monreal, who did not try to escape but tried to protect himself. Roman hit Monreal so hard he lost his vision and strength, and his ears rang. Monreal feared for his life and felt trapped by three people who stood between him and the front door, though he knew he could escape via the back exit. He pulled out his pocketknife and blindly and weakly swung it at Roman. Monreal recovered his eyesight and saw Roman step away. Monreal felt paralyzed and collapsed to the floor “like a statute [sic].” Kassandra jumped on him and tried to grab the knife. Victor disarmed him. Monreal was afraid someone would stab him so he fled.
After Monreal tried to reenter the house to get his personal belongings, he returned to his car and asked his sister to call his mother. Monreal estimated Roman hit him 10 to 15 times on his head and 20 times total. He said he was in shock, he had trouble breathing, and his chest and head hurt. Photographs showed he sustained bumps on his forehead, a bloody nose, a swollen left ear, and a scrape on his elbow. His nose and mouth were bleeding.
On cross-examination, the prosecutor questioned Monreal concerning his testimony Roman repeatedly punched him on the head causing vision loss and buzzing in his ears. When asked, Monreal agreed this was when he brandished the pocketknife. The prosecutor asked if he had to unfold the knife to expose the blade, and he said, “I did.” The prosecutor asked how he could do that if he could not see. Monreal replied, “I'm not sure exactly how I did it. I just pulled it out and put whatever strength I could and I unfolded it. And I just swung.”
The prosecutor also questioned Monreal about the injuries he suffered. When the prosecutor asked him to look at some photographs, Monreal agreed he had blood on his mouth, nose, and elbow. The prosecutor stated, “So you had just been punched in the head 20 times and fell to the ground like a statute [sic], and you're kicked while you're on the ground, blood was -- blood is coming from your nose and your mouth, but you didn't go to the hospital?” Monreal responded, “That's right.”
III. Argument, Instructions, Verdict, New Trial Motion & Sentencing
During closing argument, the prosecutor argued Roman's, Kassandra's, and Victor's testimony established Monreal was the aggressor and he did not act in self-defense. He argued the men were engaged in a mere fistfight until Monreal escalated the incident by brandishing a knife and Monreal's claim Roman pummeled him was not supported by the physical injuries he suffered. Citing to CALCRIM No. 3470, Monreal's trial counsel argued he acted in self-defense and asked the jury to consider the size difference between the men, Roman's previous threatening conduct, and Roman knew Monreal and Kassandra engaged in sexual conduct after he started dating Kassandra.
The trial court instructed the jury with the standard instructions given in criminal cases, i.e., prosecution bears the burden and reasonable doubt. As relevant to the issues on appeal, the court instructed the jury with various self-defense instructions, a defendant's failure to explain or deny, and pre-deliberations instructions.
During the five-hour deliberations, the jury asked the trial court four questions. One of the questions concerned a self-defense instruction we will discuss below. Additionally, Juror No. 3 asked the bailiff a question, and the bailiff answered, another issue on appeal we will discuss below.
The jury returned a guilty verdict and found true the allegation. The trial court polled the jury, and each juror, including Juror No. 3, confirmed this was his or her verdict.
Monreal filed a motion for new trial based on juror misconduct supported by trial counsel's declaration. The prosecution filed opposition. Monreal filed a supplemental brief supported by Juror No. 3's affidavit. After considering the written submissions, reviewing the case law, and hearing argument, the trial court denied Monreal's motion. The court sentenced Monreal to a suspended sentence of five years, one year of jail, and three years of formal probation.
DISCUSSION
I. CALCRIM No. 3471
Despite failing to object on any of the grounds he now asserts on appeal, Monreal mounts a multi-pronged attack concerning CALCRIM No. 3471, arguing the instruction was ambiguous, and the prosecutor's argument and the trial court's failure to assist the jury when it asked for clarification prejudiced him. He asserts these and other errors resulted in him losing the right to defend himself against Roman's initial attack of slamming the door on him based solely on his insult. The Attorney General responds his claims are both forfeited and meritless.
Generally, a party must object to an allegedly incomplete or inadequate instruction to allow the trial court to clarify or amplify it. (People v. Covarrubias (2016) 1 Cal.5th 838, 901 (Covarrubias).) Monreal anticipates forfeiture may apply and raises the common excuses, i.e., court must correctly instruct on the law and the alleged error affected his substantial rights. Because he also asserts his counsel was ineffective for not objecting to the instruction, we will address the merits of his claims. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 92 (Coffman and Marlow) [addressing merits because defendant also raised ineffective assistance of counsel claim].)
A. Instruction
Conceding he did not object to the instruction and acknowledging the instruction is legally correct, Monreal argues CALCRIM No. 3471 was ambiguous in this case. We disagree.
CALCRIM No. 3471 is a correct statement of the law. (See People v. Nguyen (2015) 61 Cal.4th 1015, 1050 (Nguyen); People v. Quach (2004) 116 Cal.App.4th 294, 301 [construing CALJIC No. 5.56].)
1. Background
When discussing CALCRIM No. 3471, the prosecutor objected to the portion of the instruction concerning the opponent using deadly force. Monreal's trial counsel argued this portion should remain. Monreal did not otherwise object to the instruction.
During closing argument, as relevant here, the prosecutor began his argument by stating the following: “Monreal, he went to a house. After being told to leave he started to fight with... Roman. And he finished that fight when he stabbed [Roman] five times.” After discussing some of the standard criminal instructions, the prosecutor continued by stating the following: “[Monreal] is the one that insults them, among other things, call[s] him ‘little bitch.' Kassandra tells [Monreal] to leave. And, of course, [Roman] never responds to what [Monreal] said, but of course [Monreal] doesn't leave. [¶] [Roman] tries to close the door on [Monreal]. [Monreal] has his foot on the doorway to prevent that door from closing. [Monreal] burst through. They start wrestling and throwing punches at each other. They're fighting in the living room. They're fighting by the couch in the living room. They're fighting by the stairwell in the living room. They're fighting.”
Later, the prosecutor stated the following: “So there's this instruction, CALCRIM [No.] 3472. I call it the contrivance instruction. So what it says is that you do not have the right to self-defense if you provoke a fight or quarrel with the intent to create an excuse to use force. If you start the fight you don't get self-defense. [¶] And that's what happened here. [Monreal] is the one who starts using words to insult [Roman]. ‘You got something to say to me, little bitch.' [Roman] never said anything to him. [Roman] never says anything at all.” (Italics added.) The prosecutor noted the size difference between the two men but stated Monreal offset the imbalance by arming himself with a knife before he went to Kassandra's so he was “ready.” The prosecutor said that when he went to the movie with Daughter he left the knife in the car but he had it when he dropped off Daughter. The prosecutor added the following: “And he had a knife this time, as opposed to the other times that he had any interactions with [Roman]. [Monreal] is the one that goes into the house, that's what the witness's [sic] testify to. He was outside of the house and he went into the house to start the fight. He's the one that starts the fight. And if he's the one that starts the fight, he does not get self-defense. There's another instruction [CALCRIM No. 3475], a right to reject a trespasser, so rightful. [¶] Okay. Somebody who was allowed to be in that house or that home, they're allowed to use force to get a trespasser out that doesn't leave at a reasonable time. [¶] Who is the lawful occupant? Who is the person allowed to be there in this case? [Roman]. He was dating Kassandra.... [Monreal] had moved out months ago. He was no longer allowed to be there without permission. [¶]... Kassandra had told him to leave before he came in.... [¶] [Monreal] can't go into that house if he's not allowed to be there, start a fight and expect to use force in self-defense. The law does not allow for that. And that's what happened here.” The prosecutor then proceeded to discuss CALCRIM No. 3471 and the relevant facts.
The prosecutor concluded as follows: “[H]e walked in that house. He started that fight. He stabbed [Roman] five times. He ha[d] no right to self-defense. He ha[d] no right to self-defense when he's the one that starts the fight; when he's the one trespassing at Kassandra's home; when he's the one that brings a knife to a fist fight.”
During jury deliberations, the jury submitted the following question to the trial court: “Regarding [CALCRIM No.] 3471: If it is established that a knife was brandished while [Monreal] was on the floor with [Roman] on top hitting him, does [Monreal], in order to be entitled to claim self-defense have to request for the fight to cease?” The trial court instructed the jury to refer to the elements of the instruction.
2. Law
The trial court should only give an instruction supported by substantial evidence. (People v. Ross (2007) 155 Cal.App.4th 1033, 1049-1050 (Ross).) “Evidence is ‘[s]ubstantial' for this purpose if it is ‘sufficient to “deserve consideration by the jury, ” that is, evidence that a reasonable jury could find persuasive.' [Citation.]” (Ibid.)
“A claim of instructional error is reviewed de novo. [Citation.] An appellate court reviews the wording of a jury instruction de novo and assesses whether the instruction accurately states the law. [Citation.] In reviewing a claim of instructional error, the court must consider whether there is a reasonable likelihood that the trial court's instructions caused the jury to misapply the law in violation of the Constitution. [Citations.] The challenged instruction is viewed ‘in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.' [Citation.]” (People v. Mitchell (2019) 7 Cal.5th 561, 579 (Mitchell).)
3. Analysis
The trial court instructed the jury with CALCRIM No. 3471 as follows: “A person who engages in mutual combat or who starts a fight has a right to self-defense only if: [¶] 1. He actually and in good faith tried to stop fighting; [¶] and [¶] 2. He indicated, by word or conduct, to his opponent, in a way that a reasonable person would understand, that he wanted to stop fighting and that he had stopped fighting; [¶] and [¶]
3. He gave his opponent a chance to stop fighting. [¶] If the defendant meets these requirements, he then had a right to self-defense if the opponent continued to fight. [¶] However, if the defendant used only 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 with deadly force and was not required to try to stop fighting, communicate the desire to stop the opponent, or give the opponent a chance to stop fighting. [¶] A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose.” (Italics added.)
a. “Mutual Combat”
Although the theme of his argument is this instruction is ambiguous, Monreal claims there was insufficient evidence of mutual combat. Not so.
“‘[M]utual combat' consists of fighting by mutual intention or consent, as most clearly reflected in an express or implied agreement to fight.... [T]here must be evidence from which the jury could reasonably find that both combatants actually consented or intended to fight before the claimed occasion for self-defense arose.” (Ross, supra, 155 Cal.App.4th at pp. 1046-1047; Nguyen, supra, 61 Cal.4th at p. 1050 [must be preexisting intention to engage in mutual combat].)
The evidence demonstrated Monreal and Roman did not like each other and they previously had altercations in person and online. As to the offense, Kassandra testified Monreal and Roman “locked eyes on each other” before they started fighting and they both “started throwing punches.” The jury could reasonably rely on the animosity between the two men and Kassandra's testimony they set their sights on each other and both started throwing punches as they had a preexisting intent to fight. The fact there may have been other evidence from which the jury could draw a contrary conclusion is not dispositive-the issue is whether there was sufficient evidence to give the instruction, not resolve the factual conflicts.
Although Monreal correctly defines the legal definition of mutual combat, in a few instances he seems to suggest the agreement to fight must be express or in some way formalized. There is no requirement fighters must execute a written contract before exchanging blows. As Ross teaches, “The agreement need not have all the characteristics of a legally binding contract....” (Ross, supra, 155 Cal.App.4th at p. 1047.)
Monreal relies on Ross, supra, 155 Cal.App.4th 1033, and People v. Rogers (1958) 164 Cal.App.2d 555 (Rogers), to support his claim. His reliance is misplaced.
In Ross, supra, 155 Cal.App.4th at page 1054, there was a verbal altercation but no indication of an agreement to fight. The victim slapped defendant, and defendant struck back. (Ibid.) The court concluded there was insufficient evidence the parties intended the altercation to become physical before it did. (Ibid.)
In Rogers, supra, 164 Cal.App.2d at pages 557-558, the trial court instructed the right of self-defense was “‘not available to either of two persons who by prearrangement, or otherwise by agreement, enter into and carry on a duel or deadly mutual combat.'” The court concluded there was “no showing, directly or by inference, that defendant had any prearrangement to fight anybody” but that he stood by to aid someone in defending an assault “made upon him upon his own premises, where he had a right to be.” (Id. at p. 558.)
Ross and Rogers are inapposite. Here, the men's disdain for each other, their previous altercations, and evidence of the immediacy of when they started to fight provided substantial evidence that they intended to fight prior to the physical altercation. Substantial evidence supported instructing the jury on mutual combat.
b. “Starts a Fight”
Despite Monreal's insistence he is not asserting the instruction was “‘facially' incorrect in all circumstances, ” he contends the instruction deviates from case law and “the plain language of the instruction” told the jury starting a fight with an insult or trespass foreclosed a person's right to self-defense. Because his arguments concern the evidence, the prosecutor's argument, the jury's question, and his confirmation he is not challenging the instruction's correctness, we proceed to address his challenge to the instruction in this case.
“‘When a word or phrase “‘is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request.'” [Citations.] A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning. [Citation.]' [Citation.]” (People v. Griffin (2004) 33 Cal.4th 1015, 1022-1023 (Griffin).) As to Monreal's complaint the phrase “starts a fight” is undefined, we disagree it connotes both a physical fight or a verbal argument. It is a phrase that is commonly understood by those familiar with the English language and is not used in CALCRIM No. 3471 in a technical sense peculiar to the law.
With respect to Monreal's assertion the phrase “starts a fight” is ambiguous, we disagree. When read as a whole, it was not reasonably likely CALCRIM No. 3471's use of the phrase “starts a fight” caused the jury to misapply the law. The instruction begins by specifying two ways a person can use self-defense if other requirements are met-mutual combat or starting a fight. Both connote using physical force, and not an insult. Additionally, the instruction repeatedly uses the word “fight” in the context of a physical fight. It does not use “fight” in the context of a verbal argument. Finally, the instruction states a person may communicate the desire to stop fighting by “word or by conduct, ” the instruction does not state a person may start a fight by “words.”
In his reply brief, Monreal also asserts the instruction's mutual combat definition states a fight may begin “by words alone... through agreement to mutual combat.” This is a new gloss on his argument, and we do not consider arguments raised for the first time in a reply brief. (Nordstrom Com. Cases (2010) 186 Cal.App.4th 576, 583 (Nordstrom).) In any event, it was not reasonably likely the jury would interpret the “mutual consent or agreement” language to conclude a single insult was an agreement to start a fight.
Nor did the evidence allow for the jury to conclude the fight started when Monreal insulted Roman. The only three witnesses to the fight were Roman, Kassandra, and Monreal. Roman testified the fight began after he and Kassandra told him to leave and they tried to close the door. Although Kassandra initially denied they tried to close the door, she eventually admitted she told police they tried to close the front door. Monreal stated Roman insulted him and confirmed Roman “slammed the door against [him]” and tried to push him out. Indeed, on appeal, Monreal characterizes Roman's slamming the door as the first physical assault. Thus, there was unanimous agreement that between Monreal's insult and the start of the fight, Kassandra and Roman told him to leave and they tried to close the door to prevent him from entering the house.
With respect to the prosecutor's closing argument, the parties disagree about whether we consider the argument in determining whether the instruction was ambiguous or whether it exacerbated an ambiguous instruction. We need not resolve this dispute because the prosecutor did not misstate the law or the evidence on this point.
Monreal cites to an instance when the prosecutor stated Monreal insulted Roman and they started fighting. But Monreal reads that statement in isolation without considering the prosecutor's entire argument. Yes, the prosecutor mentioned Monreal insulted Roman. However, the prosecutor's reference to the insult was merely a recitation of all the events leading to the fight. When read in its entirety, the prosecutor stated the evidence established the following: Monreal insulted Roman, Roman tried to close the door, Monreal entered the house, and Monreal started the fight. At no time did the prosecutor argue Monreal's insult alone started the fight. Therefore, the prosecutor's argument was not improper.
Finally, we decline to find the instruction ambiguous merely because the jury asked the court a question. The jury's question does not indicate it was confused about who started the fight or whether Monreal's insult legally could have started the fight. It was about the “middle” of the fight, when Monreal brandished the knife.
Thus, CALCRIM No. 3471 did not violate Monreal's rights to due process, a fair trial, or the right to present a complete defense. (People v. Marlow (2004) 34 Cal.4th 131, 154 [because no error federal constitutional rights not violated].) Because we have concluded there was no error, we need not address whether Monreal was prejudiced.
B. Jury Question
Monreal contends the trial court erred when the jury asked a question about CALCRIM No. 3471 and the court referred the jury back to the instruction's elements. The Attorney General responds Monreal forfeited appellate review of this claim because he did not object to the court's response, and the court's response was proper. We agree with the Attorney General on both counts.
“The Supreme Court has held... section 1138 imposes on the trial court a mandatory ‘duty to clear up any instructional confusion expressed by the jury.' [Citations.] ‘When a jury asks a question after retiring for deliberation, “... [s]ection 1138 imposes upon the court a duty to provide the jury with information the jury desires on points of law.” [Citation.] But “[t]his does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under... section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information.” [Citation.] We review for an abuse of discretion any error under... section 1138.' [Citation.] [¶] The trial court abuses its discretion if it refuses to offer any further instruction without first considering how it can best aid the jury. [Citation.] However, the trial court does not abuse its discretion when it determines the best way to aid the jury is by directing the jury to reread the applicable jury instructions that ‘are themselves full and complete.' [Citation.] Additionally, the court need not give the jury more information than it asks for. [Citation.]” (People v. Lua (2017) 10 Cal.App.5th 1004, 1016-1017.)
“‘When the trial court responds to a question from a deliberating jury with a generally correct and pertinent statement of the law, a party who believes the court's response should be modified or clarified must make a contemporaneous request to that effect; failure to object to the trial court's wording or to request clarification results in forfeiture of the claim on appeal.' [Citations.]” (People v. Boyce (2014) 59 Cal.4th 672, 699.)
Here, the conference regarding the jury's question was not reported. The trial court's minutes indicate the court notified counsel of the jury's question. The minutes do not indicate whether Monreal's trial counsel objected to the court's response or proposed an alternative response. Thus, Monreal's claim is forfeited. However, because he raises an ineffective assistance of counsel claim, we will address the merits. (Coffman and Marlow, supra, 34 Cal.4th at p. 92 [addressing merits because defendant also raised ineffective assistance of counsel claim].)
The trial court did not abuse its discretion by instructing the jury to refer to CALCRIM No. 3471's elements. Based on the fact the court advised counsel of the jury's question, we conclude it considered how to best assist the jury. And contrary to Monreal's claim, the court did not “‘figuratively throw up its hands and tell the jury it cannot help.'” No, the court decided the best answer to the jury's question appeared in the instruction's plain language: If Monreal used only non-deadly force, and Roman responded with such sudden and deadly force that Monreal could not withdraw from the fight, then Monreal had the right to defend himself with deadly force and was not required to try to stop fighting, communicate the desire to stop to Roman, or give Roman a chance to stop fighting. This was not a “non-response” or “cursory response” as Monreal asserts. Thus, it was not beyond the bounds of reason for the court to conclude the best way to assist the jury was by directing it to reread the applicable jury instructions that were full and complete, as we explain above.
At a hearing on the instructions, the trial court noted it had discussed the instructions with the parties the previous evening and that morning. And during the hearing, the court went through all the instructions and allowed the parties to memorialize any objections and argument. The court's comments during the hearing indicate it was well versed in the evidence and the parties' arguments, and had given significant thought to the instructions. Elsewhere, Monreal states, “The trial court did next to nothing to make sure the jury was properly instructed on self-defense beyond giving the standard instructions without any reflection on their application to [his] case.” Nonsense.
Monreal suggests the trial court should have instead responded, “‘The defendant would not be required to request for the fight to cease in order to use force in self-defense if he had a reasonable fear of death or great bodily injury.'” This is remarkably similar to the above language. And it does not establish the court abused its discretion by referring the jury to the instruction that is full and complete.
It is the trial court's duty to instruct the jury with neutral principles of the law. It is the jury's duty to decide what the facts are based on the evidence presented and apply the facts to the neutral principles of law. To answer the jury's question in the manner Monreal now asks, the court would have had to presume what factual findings the jury made to accurately answer the question. That is not the court's role.
Monreal cites to People v. Thompkins (1987) 195 Cal.App.3d 244, for the proposition the trial court should have “at a minimum” inquired into the jury's confusion. The court need only inquire if it is confused about what the jury is asking. (Id. at p. 250.) The jury's question was not confusing, and thus, the court did not have to inquire.
We have read the California and federal appellate court cases Monreal cites in support of his position the court abused its discretion. We are not persuaded. Because we have concluded the court did not err, we need not address whether Monreal was prejudiced.
II. CALCRIM No. 3472
In his opening brief, Monreal starts by arguing CALCRIM No. 3472 “misstated the law” and “[did] not correctly state the law” but then states the instruction was “‘ambiguous'” and did not correctly state the law “in [his] case”. The Attorney General notes the apparent confusion and discerns his argument to be purely a challenge to the legal correctness in all circumstances. We agree with the Attorney General that Monreal challenges the correctness of the instruction, but Monreal stresses the instruction was ambiguous and the prosecutor's argument exacerbated the error based on the facts of his case. We will address both claims, although the latter is forfeited.
The trial court instructed the jury with CALCRIM No. 3472 as follows: “A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force.” When the court asked counsel whether there was any objection, Monreal's trial counsel replied, “No.”
A. Legally Correct
“‘“[I]n criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case.” [Citation.] That duty extends to “‘instructions on the defendant's theory of the case, including instructions “as to defenses ‘“that the defendant is relying on..., or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.”'”'”' [Citation.]” (Covarrubias, supra, 1 Cal.5th at p. 873.)
CALCRIM No. 3472 is a correct statement of law. In People v. Enraca (2012) 53 Cal.4th 735 (Enraca), our Supreme Court addressed the propriety of CALJIC No. 5.55, CALCRIM No. 3472's predecessor. (Enraca, supra, 53 Cal.4th at p. 761.) CALJIC No. 5.55 said, “‘The right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense.'” (Ibid., italics added.) The Enraca court explained the instruction was legally correct because self-defense “may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical attack or the commission of a felony), has created circumstances under which his adversary's attack or pursuit is legally justified.” (Ibid.)
While Enraca involved the CALJIC analog to CALCRIM No. 3472, the language of the two instructions is materially the same despite Monreal's pleas to the contrary. Monreal relies on the above italicized language from CALJIC No. 5.55 to “incorporate” the language and argue CALCRIM No. 3472 is incorrect because it does not include the same reasonableness requirement. The focus of this portion of CALJIC No. 5.55 is not on the victim but instead the defendant.
CALCRIM No. 3472 is therefore generally a correct statement of law. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Our colleagues in the Second District concluded the same. (People v. Eulian (2016) 247 Cal.App.4th 1324, 1333 (Eulian).) Finally, the case Monreal contends is dispositive here, and which we discuss below, People v. Ramirez (2015) 233 Cal.App.4th 940 (Ramirez), a decision from another panel of this court, says as much. It states, “True, CALCRIM No. 3472 states a correct rule of law in appropriate circumstances.” (Id. at p. 947.)
B. Unambiguous
As we state above, a party must object to an allegedly incomplete or inadequate instruction to allow the trial court the opportunity to clarify or amplify it. (Covarrubias, supra, 1 Cal.5th at p. 901.) Monreal did not object to this instruction and thus his contention the instruction was erroneous in this case is forfeited. However, because he also asserts his counsel was ineffective for not objecting to the instruction, we will address the merits of his claims. (Coffman and Marlow, supra, 34 Cal.4th at p. 92 [addressing merits because defendant also raised ineffective assistance of counsel claim].)
“[A] victim may respond to an attacker's initial physical assault with a physical counterassault, and an attacker who provoked the fight may not in asserting he was injured in the fray claim self-defense against the victim's lawful resistance. [Citation.] And when a defendant contrives a ‘deadly' assault [citation], there can be no incommensurate or unjustifiable response by the victim: he or she is fully entitled to use deadly force and the defendant has no right to claim self-defense against those deadly measures.” (Ramirez, supra, 233 Cal.App.4th at p. 947.)
In Ramirez, on which Monreal primarily relies, a jury convicted defendants of murder and they appealed, arguing CALCRIM No. 3472 erroneously prevented the jury from considering their self-defense claim. (Ramirez, supra, 233 Cal.App.4th at p. 943.) Defendants were gang members who felt a rival gang harassed them. They enlisted a fellow gang member to assist them in confronting and fighting the rival gang. (Id. at p. 944.) When they encountered the rival gang members, they provoked a fistfight. At trial, one defendant testified one of the rival gang members raised an object that looked like a gun, so he pulled out his gun and shot and killed the rival gang member. (Id. at p. 945.) The trial court instructed the jury with CALCRIM No. 3472. (Ibid.) The prosecutor “highlighted the instruction in closing argument” and “argued it precluded any claim of self-defense even if defendants only instigated a fistfight.” (Id. at pp. 943, 946, 950, 952.)
Over a vigorous dissent by Justice Richard Fybel, the Ramirez majority concluded CALCRIM No. 3472 misstated the law on the facts before it and reversed. The court explained the record showed defendants intended to provoke only a nondeadly fistfight with rival gang members, but when one defendant saw one of them holding an object that looked like a gun, defendant pulled a gun and fatally shot the rival gang member. (Ramirez, supra, 233 Cal.App.4th at pp. 944-945.) The court opined the instruction “made no allowance for an intent to use only nondeadly force and an adversary's sudden escalation to deadly violence.” (Id. at p. 945.) The court stated “[a] person who contrives to start a fistfight or provoke a non-deadly quarrel does not thereby ‘forfeit[ ]... his right to live[]'” if the victim unexpectedly responds with deadly force. (Id. at p. 943, citing People v. Conkling (1896) 111 Cal. 616, 626.) The court added the following: “CALCRIM No. 3472 make[s] no distinction between deadly and nondeadly force, nor an opponent's escalation to deadly force. The distinction makes all the difference.” (Ramirez, supra, 233 Cal.App.4th at p. 953, fn. 2.) The court also found it significant the prosecutor “highlighted” CALCRIM No. 3472 throughout her closing argument, repeatedly arguing that “it precluded any claim of self-defense even if [the] defendant[] only instigated a fistfight.” (Id. at p. 946.)
In Eulian, supra, 247 Cal.App.4th at page 1334, the court succinctly explained the majority opinion in Ramirez established CALCRIM No. 3472 “is generally a correct statement of law, which might require modification in the rare case in which a defendant intended to provoke only a nondeadly confrontation and the victim responds with deadly force.” We need not decide whether the majority or dissent in Ramirez was correct because this is not the rare case that required modification.
First, the Ramirez court was concerned about the evidence that could be construed as showing that even if defendants might have instigated a fistfight with members of the rival gang, the gang member shot the victim in self-defense when the victim held up what he thought was a gun. There is no comparable evidence here. There was sufficient evidence Monreal prepared for and intended a deadly attack when he went to Kassandra's home. In addition to the evidence Monreal previously showed Roman his pocketknife, he brought it to Kassandra's home. Although Monreal cites to the size difference between he and Roman, there was no evidence Roman or anyone else at the scene other than Monreal had a weapon or displayed or used anything that looked like a weapon. There was no evidence anything other than fists were used before Monreal escalated the incident by pulling out the knife.
Second, unlike Ramirez, the prosecutor here did not argue self-defense would be unavailable if Monreal instigated the fight, but Roman escalated the situation by using deadly force. Instead, the prosecutor argued Monreal armed himself in advance of the confrontation so he could use the knife-i.e., use deadly force. The prosecutor further argued there was no evidence Roman used deadly force against defendant. The prosecutor stressed they engaged in a fistfight until Monreal brandished the knife and Roman was not armed. Importantly, the prosecutor recited the law to support Monreal's defense-if Monreal used only non-deadly force and Roman responded with sudden deadly force and Monreal could not withdraw, then Monreal had the right to use deadly force.
Monreal cites to the prosecutor's statement, “‘If you start the fight you don't get self-defense.'” But again he reads that statement in isolation. Viewing the argument as a whole, there was no reasonable likelihood the jury was misled by the prosecutor's argument. (People v. Williams (2013) 56 Cal.4th 630, 688-689 [no reasonable likelihood jury incorrectly construed ambiguous instruction in light of counsel's closing arguments].) The prosecutor argued Monreal armed himself with a knife, impermissibly entered Kassandra's house, provoked a fight with Roman, and used the knife to stab Roman. The prosecutor did not argue Monreal lost his right to defend merely as a result of uttering an insult or for contriving to use nondeadly force. Thus, his reliance on People v. Vasquez (2006) 136 Cal.App.4th 1176, 1178-1179 [because defendant's verbal aggression no matter how intentionally provocative had not been physical, victim had no right to resort to deadly force], is misplaced.
Finally, the other jury instructions in this case accurately reflected the law of self-defense. CALCRIM No. 3471 correctly stated the principle that “if the defendant used only 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 with deadly force and was not required to try to stop the fighting or communicate the desire to stop to the opponent, or give the opponent a chance to stop fighting.” And the court instructed the jury, “Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measures against that person.” (CALCRIM No. 3470.) Thus, CALCRIM No. 3472 was proper here.
III. Ineffective Assistance of Counsel & Prosecutorial Misconduct
Monreal contends he received ineffective assistance of counsel because trial counsel did not object to CALCRIM Nos. 3471 and 3472, or the trial court's response to the jury's question. We have addressed the merits of these contentions, and therefore need not address his claim counsel was ineffective. (People v. Hardy (1992) 2 Cal.4th 86, 209.)
Included within this argument, however, is another argument. Monreal asserts the prosecutor committed misconduct during closing argument and again anticipates the Attorney General's forfeiture argument by asserting the issue is preserved because his substantial rights were implicated.
It is well settled a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion and on the same ground the defendant made an assignment of misconduct and requested the jury be admonished to disregard the impropriety. (People v. Seumanu (2015) 61 Cal.4th 1293, 1328.) “‘A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if “‘an admonition would not have cured the harm caused by the misconduct.'” [Citation.]” (Ibid.)
Monreal's claim the prosecutor committed misconduct is forfeited.
Monreal's trial counsel never once objected to the prosecution's closing argument on this or any other ground. Nothing in the record indicates an objection would be futile. Nevertheless, the prosecutor did not commit misconduct. (People v. Lewis (1990) 50 Cal.3d 262, 282 [considering claim of prosecutorial misconduct not objected to in trial court to forestall claim of ineffective assistance of counsel].)
“‘“A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it ‘infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] In other words, the misconduct must be ‘of sufficient significance to result in the denial of the defendant's right to a fair trial.' [Citation.] A prosecutor's misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'”' [Citation.]” (Covarrubias, supra, 1 Cal.5th at p. 894.)
It is misconduct for the prosecutor to misstate the law. (People v. Fayed (2020) 9 Cal.5th 147, 204.) “‘A defendant asserting prosecutorial misconduct must... establish a reasonable likelihood the jury construed the remarks in an objectionable fashion.' [Citations.]” (Ibid.)
Here, when read as a whole and taken in context, the prosecutor did not argue Monreal lost his right to self-defense based on his insult. Instead, he argued Monreal armed himself with a knife before going to Kassandra's home, entering her home, and provoking a fight with Roman. Additionally, the prosecutor noted Monreal retained his right to self-defense if Roman used sudden and deadly force. It was not reasonably likely the jury construed the prosecutor's remarks in an objectionable manner. The prosecutor did not commit misconduct.
IV. CALCRIM No. 3475
Monreal argues the trial court erred by instructing the jury with a modified version of CALCRIM No. 3475. Again, we disagree.
A. Background
When discussing CALCRIM No. 3475, the trial court noted the prosecutor requested the pinpoint instruction taken from the bench notes. The court added the last two paragraphs of the form instruction were inapplicable because the language was phrased as if the defendant were the lawful homeowner or occupant. Monreal's trial counsel objected to the instruction in general because it was not supported by the evidence. Counsel objected to the pinpoint instruction because it was inapplicable based on the facts and the charges. Counsel distinguished People v. Watie (2002) 100 Cal.App.4th 866 (Watie), the authority for giving the pinpoint instruction because that case concerned imperfect self-defense to a murder charge. The court concluded sufficient evidence supported the instruction and said counsel could argue it did not apply.
The trial court instructed the jury with CALCRIM No. 3475 as follows: “The lawful occupant of a home may request that a trespasser leave the home. If the trespasser does not leave within a reasonable time and it would appear to a reasonable person that the trespasser poses a threat to the home or the occupants, the lawful occupant may use reasonable force to make the trespasser leave. [¶] Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to make the trespasser leave. [¶] If the trespasser resists, the lawful occupant may increase the amount of force he or she uses in proportion to the force used by the trespasser and the threat the trespasser poses to the property. [¶] If the victim had a right to use force to defend himself as a lawful occupant in the home, then the defendant had no right to self-defense, imperfect or otherwise.” (Italics added.)
B. Law
“The principles set forth in CALCRIM No. 3475... apply primarily to cases in which the owner or occupant of property is charged with using excessive force to remove a trespasser.... [¶] The principles set forth in CALCRIM No. 3475 might also apply when there is an issue of whether a trespasser had any right to defend himself against the use of force by the owner/occupant of the property. In general, if an owner/occupant lawfully uses force to defend himself against aggression by a trespasser, then the trespasser has no right of self-defense against the owner/occupant's use of force. [Citations.]” (People v. Johnson (2009) 180 Cal.App.4th 702, 709-710.)
We review instructional error de novo. (Mitchell, supra, 7 Cal.5th at p. 579.) On review, we examine the jury instructions as a whole, in light of the trial record, to determine whether it is reasonably likely the jury understood the challenged instruction in a way that undermined the presumption of innocence or tended to relieve the prosecution of the burden to prove defendant's guilt beyond a reasonable doubt. (Ibid.; People v. Ramirez (2021) 10 Cal.5th 983, 1001-1002.)
C. Analysis
Preliminarily, we note Monreal continues his pattern of raising arguments on appeal he did not raise in the trial court. Below, he argued insufficient evidence supported giving the instruction and the pinpoint portion was inapplicable because Watie, supra, 100 Cal.App.4th 866, was inapposite. He did not raise the legal arguments he now raises on appeal. (Covarrubias, supra, 1 Cal.5th at p. 901 [party must request clarifying or amplifying language to otherwise correct instruction to argue it was too general or incomplete].) Nevertheless, we will address his contentions.
First, Monreal contends the above italicized pinpoint instruction foreclosed the possibility he had the right to defend himself because the prosecutor only had to prove Roman was a “lawful occupant.” To the contrary, the prosecutor also had to prove Monreal was a trespasser, he was asked to leave, he posed a threat, Roman waited a reasonable time under the circumstances before using force, and Roman only used the amount of force that was reasonable and proportionate to the circumstances. As the court noted, Monreal was free to argue he was a lawful occupant and not a trespasser, a commonly understood term not requiring a definition. (People v. Griffin (2004) 33 Cal.4th 1015, 1022-1023 [commonly understood word does not require instruction absent request].) This would also mitigate any “bias” the pinpoint instruction caused by substituting “defendant” for “trespasser.” Additionally, the court instructed the jury Monreal was presumed innocent and the prosecution had to prove him guilty beyond a reasonable doubt. (CALCRIM No. 220.) With respect to Monreal's claim the court erred by deleting the last paragraph of the standard form instruction concerning reasonable doubt, the court concluded the paragraph was inapplicable. Monreal did not request the court include the last paragraph.
Second, Monreal notes CALCRIM No. 3475 is not limited to a defendant's right to self-defense in his or her own home. However, he asserts the pinpoint instruction was erroneous and confusing in his case. Watie, supra, 100 Cal.App.4th 866, is instructive.
In Watie, defendant shot his stepfather through a locked front porch screen security door believing stepfather was about to shoot him. (Watie, supra, 100 Cal.App.4th at pp. 873-875.) The trial court instructed the jury with CALJIC Nos. 5.40 and 5.42, CALCRIM No. 3475's predecessor instructions. (Id. at pp. 875-876.) On appeal, defendant objected to the instructions on the ground they allowed the jurors to presume stepfather was acting in lawful defense of his property, thus eliminating defendant's theory of self-defense. (Id. at p. 876.) The Watie court disagreed, holding “the right of a victim to defend himself and his property is a relevant consideration in determining whether a defendant may prevail when he seeks to negate malice aforethought by asserting the affirmative defense of imperfect self-defense.” (Id. at p. 878.) The court explained “the jury was confronted with the question of whether defendant's use of deadly force was justified as he confronted [stepfather] on the front porch of [stepfather's] home and whether defendant's unlawful conduct created the circumstances that legally justified [stepfather's] use of force. If [stepfather] had a right to use force to defend himself in his home, then defendant had no right of self-defense, imperfect, or otherwise. The court's instructions on [stepfather's] rights and defendant's right to turn to deadly force correctly stated the law.” (Id. at p. 878.)
Here, like in Watie, the evidence supported giving the pinpoint instruction. The jury had to decide whether Monreal's conduct created the circumstances that legally justified Roman's use of force and whether Monreal's use of deadly force was justified. Contrary to Monreal's claim, the pinpoint instruction did not direct the jury to reject his right to self-defense even if the jury also concluded Roman attacked him with unreasonable force. When read as a whole, CALCRIM No. 3475 required Roman to use reasonable force, i.e., the amount of force that a reasonable person in the same situation would believe is necessary to make the trespasser leave. Nothing in the instruction prevented the jury from concluding Roman used unreasonable force and Monreal acted in self-defense even if he was trespassing.
In his reply brief, Monreal asserts the instruction's first paragraph and the pinpoint instruction deal with different conduct and thus we cannot conclude the jury understood the instruction based on a complete reading of the instruction. Again, this is a new gloss on his argument, and we do not consider arguments raised for the first time in a reply brief. (Nordstrom, supra, 186 Cal.App.4th at p. 583.) In any event, the jury was free to disregard the instruction if it was inapplicable. (CALCRIM No. 200.)
It is unfortunate the pinpoint instruction references imperfect self-defense, which was not applicable here. But again, it was not reasonably likely the jury misunderstood the instructions as a whole. Finally, the trial court instructed the jury some of the instructions may not apply (CALCRIM No. 200). If the jury concluded this instruction did not apply, it was free to disregard it. Thus, CALCRIM No. 3475 as modified did not lower the prosecutor's burden of proof or prevent Monreal from presenting a defense.
V. CALCRIM No. 361
Monreal asserts insufficient evidence supported instructing the jury with CALCRIM No. 361. Any error was harmless.
Over Monreal's objection, the trial court instructed the jury with CALCRIM No. 361 as follows: “If the defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove the defendant guilty beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure.”
The problems concerning the use of this jury instruction are well established. In People v. Cortez (2016) 63 Cal.4th 101 (Cortez), our Supreme Court explained CALCRIM No. 361 “applies only when a defendant completely fails to explain or deny incriminating evidence, or claims to lack knowledge and it appears from the evidence that the defendant could reasonably be expected to have that knowledge.” (Id. at p. 117, italics added.) The court stated, however, CALCRIM No. 361 should not be given “if the defendant's testimony conflicts with other evidence or may be characterized as improbable, incredible, unbelievable, or bizarre” because that testimony is not “‘the functional equivalent of no explanation at all.'” (Ibid.)
We need not decide, however, whether the trial court erred by giving this instruction because in this case any error was harmless. The trial court instructed the jury not all of its instructions were necessarily applicable. (CALCRIM No. 200.) And contrary to Monreal's claim, the prosecutor did not mention the instruction during closing argument. Finally, given the strength of the evidence on count 1, we cannot imagine this jury would have entertained any reasonable doubt about his guilt on that count even if CALCRIM No. 361 had not been given. For these reasons, any error was harmless. (People v. Vega (2015) 236 Cal.App.4th 484, 503; People v. Lamer (2003) 110 Cal.App.4th 1463, 1471-1472 [People v. Watson (1956) 46 Cal.2d 818, 836, standard applies].)
VI. Motion for New Trial
Monreal argues the trial court erred by denying his new trial motion because Juror No. 3 committed misconduct by violating the court's instructions. Not so.
A. Background
In his motion for new trial, Monreal argued Juror No. 3 committed misconduct by violating the trial court's instructions and the bailiff committed misconduct by violating his oath. Counsel declared that during deliberations Juror No. 3 asked the bailiff whether the verdict had to be unanimous. Counsel explained that in chambers the bailiff confirmed Juror No. 3's account, and the bailiff stated “he answered that the verdict did have to be unanimous.” The prosecutor contended counsel's declaration was insufficient to establish misconduct and any misconduct was not prejudicial.
Monreal's supplemental brief was supported by Juror No. 3's affidavit. Juror No. 3 stated initially the jury was evenly split, he voted not guilty, and he did not believe the verdict had to be unanimous. When other jurors told him the verdict had to be unanimous, he and one other juror voted not guilty. When the bailiff entered the deliberation room, Juror No. 3 asked the bailiff if the verdict had to be unanimous, and the bailiff “told [him] that it had to be unanimous.” Juror No. 3 stated the following: “After the bailiff told me that, I felt that I had to change my vote from ‘not guilty' to ‘guilty.' [¶] If I had known that the verdict did not have to be unanimous, I would have kept my vote as ‘not guilty.' [¶] I observed that after other jurors made up their minds to vote guilty at the very end of the deliberations, some jurors were looking at their phones and not paying attention to the deliberations.”
At the hearing on the motion, after hearing counsel's argument, the trial court stated Juror No. 3 should not have asked the bailiff the question and the bailiff should not have answered, but based on the case law it was not misconduct. The court said that if it had answered Juror No. 3's question, it would have answered the same as the bailiff, “‘Yes.'” The court added the bailiff's answer was not extrajudicial. The court opined Juror No. 3's statement he would not have changed his vote if he knew the verdict did not have to be unanimous did not make sense. The court noted it polled the jury and Juror No. 3 confirmed he voted guilty. The court concluded there was no misconduct but if there was it was not prejudicial because the bailiff's answer was the same as the court's instructions. The court denied Monreal's new trial motion.
B. Law
A defendant may move for a new trial based on juror misconduct. (§ 1181, subd. 2.) “‘[A] nonjuror's tampering contact or communication with a sitting juror... usually raises a rebuttable “presumption” of prejudice. [Citations.]' [Citation.] If we find misconduct, we proceed to determine whether that misconduct was prejudicial to defendant. We have identified two tests for prejudice, and ‘[t]he judgment must be set aside if the court finds prejudice under either test.' [Citation.] First, we ask whether the external communication is so inherently prejudicial that it is substantially likely to have biased the juror. This ‘inherently prejudicial' standard is objective and is satisfied when ‘the extraneous information was so prejudicial in context that its erroneous introduction in the trial itself would have warranted reversal of the judgment.' [Citation.] If we find no inherent prejudice, then we apply the ‘“circumstantial[]” test' for prejudice, recognizing that ‘the totality of the circumstances surrounding the misconduct must still be examined to determine objectively whether a substantial likelihood of actual bias nonetheless arose.' [Citation.]” (In re Welch (2015) 61 Cal.4th 489, 499-500 (Welch) [bailiff communications with jury].)
“We review independently the trial court's denial of a new trial motion based on alleged juror misconduct. [Citation.] However, we will ‘“accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence.”' [Citation.]” (People v. Gamache (2010) 48 Cal.4th 347, 396.)
C. Analysis
Monreal argues Juror No. 3 violated the trial court's instructions to obey all instructions (CALCRIM No. 200), to not make inquiry about the law (CALCRIM No. 201), and the verdict must be unanimous (CALCRIM No. 3550). The Attorney General disagrees Juror No. 3 committed misconduct noting CALCRIM No. 3550 directs jurors to submit questions to the trial court via the bailiff. However, citing to Welch, supra, 61 Cal.4th 489, he states the bailiff should not have answered Juror No. 3's question, but the error was harmless.
As to Juror No. 3's question, CALCRIM No. 3550 directs jurors to submit questions to the trial court via the bailiff. It does, however, instruct questions must be in writing. Though a violation of the letter of the law, we cannot say Juror No. 3 committed misconduct by asking a question he was entitled to ask. We cannot say the same for the bailiff. He should not have answered Juror No. 3's question. Instead, the bailiff should have reminded Juror No. 3 to put his question in writing and he would submit it to the trial court.
Although there was error, Monreal was not prejudiced. The bailiff's communication with Juror No. 3 was not inherently prejudicial because it was not so prejudicial that reversal would be justified if it had been introduced at trial. (In re Carpenter (1995) 9 Cal.4th 634, 653-654.) Nor was it prejudicial based on a totality of the circumstances. The bailiff answered the verdict must be unanimous, which was a correct statement of the law, and the same answer the trial court said it would have given to the jury. The court's explanation how it would have answered the question also refutes Monreal's assertion the court may have told the jury it did not have to reach a verdict. Indeed, the court's pre-deliberation instruction told the jury it “should try to agree on a verdict, if you can.” (CALCRIM No. 3550.) Monreal's proposed instruction would erroneously diminish the jury's duty to deliberate and reach a verdict. (People v. Gurule (2002) 28 Cal.4th 557, 660.)
Monreal relies on People v. Honeycutt (1977) 20 Cal.3d 150 (Honeycutt), to support his claim. His reliance on Honeycutt is misplaced. In Honeycutt, the foreman contacted an outside attorney for advice during deliberations, which the court concluded was “egregious misconduct.” (Id. at p. 157.) The fact the bailiff answered Juror No. 3 was an error, but it certainly was not egregious.
Monreal asserts Juror No. 3's affidavit establishes he was prejudiced because the juror stated he changed his vote to guilty after the bailiff answered him. Under Evidence Code section 1150, a court cannot consider evidence of a juror's subjective reasoning process in deciding whether to grant a new trial based on purported juror misconduct. (People v. Manibusan (2013) 58 Cal.4th 40, 59.) We cannot rely on Juror No. 3's mental process to conclude there was jury misconduct.
Finally, Monreal argues the court erred by not holding an evidentiary hearing. Monreal did not request an evidentiary hearing, and thus his claim is forfeited. (People v. Hinton (2006) 37 Cal.4th 839, 898.) In fact, at the hearing, Monreal's trial counsel said such a hearing was unnecessary. Counsel described the evidence here as “quite straightforward and quite settled.” Counsel added, “so I don't think there's any dispute about what his version of events are.” The trial court did not err by denying Monreal's new trial motion.
VII. Cumulative Error
Monreal contends the cumulative effect of the errors was prejudicial. As we have either rejected the merits of defendant's claims of error or have found any asserted errors to be nonprejudicial, we reject his contention the judgment must be reversed due to the cumulative effect of alleged errors. (People v. Cole (2004) 33 Cal.4th 1158, 1235-1236.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, J.GOETHALS, J.