Opinion
C082166
11-19-2018
THE PEOPLE, Plaintiff and Respondent, v. MONICA NJOKU et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F07784)
Edward Derius White was stabbed to death in a Sacramento rooming house. A jury found defendants and appellants Monterio Roberts and Monica Njoku, brother and sister, guilty of second degree murder. (§ 187, subd. (a)) A third codefendant—Roberts' wife, Taiish Simon—was acquitted. The trial court sentenced Njoku to 15 years and Roberts to 16 years in state prison.
The jury also found that Roberts personally used a knife in the commission of the crime. (Pen. Code, § 12022, subd. (b)(1).) Further undesignated statutory references are to the Penal Code.
On appeal, Njoku contends: (1) the trial court erred in admitting part of a 911 call in which White can be heard saying that he did not want to die "for his son," (2) the prosecutor committed prosecutorial misconduct in closing argument, (3) the trial court improperly limited cross-examination of an important prosecution witness, and (4) the trial court erred in denying Njoku's motion for a new trial based on an alleged Brady violation (Brady v. Maryland (1963) 373 U.S. 83) and/or newly discovered evidence.
Roberts joins in Njoku's contentions, and further contends: (1) the trial court improperly instructed the jury on the basic requirements for a lawful eviction, (2) the trial court improperly refused Roberts' request for a pinpoint instruction clarifying that imperfect self-defense would still be available, even if Njoku and Roberts set in motion events which led White to use force, (3) the trial court erred in failing to instruct the jury with CALCRIM No. 3470 (Right to Self-Defense or Defense of Another (Non-Homicide)), and (4) the forgoing errors were cumulatively prejudicial. Njoku joins in Roberts' contentions.
Finding no error, we affirm the judgments.
I. BACKGROUND
We review the trial record in the light most favorable to the prosecution and in support of the judgments. (People v. Jennings (2010) 50 Cal.4th 616, 638-639.) In any event, most of the salient details are not in material dispute. A. The Prosecution's Case
Njoku owned a house in Sacramento. She lived elsewhere, renting rooms in the house to short term tenants, primarily single mothers with children. Njoku did not require credit or background checks, and allowed tenants to pay rent and deposits on a flexible schedule and in installments, as they were able. Njoku did not observe the usual formalities associated with the landlord/tenant relationship. Some tenants were not required to sign lease agreements. Others signed lease agreements, but were not given copies of those documents. In keeping with her informal approach to landlord/tenant matters, Njoku also made frequent unannounced visits to the house, using her own key to enter without knocking.
Although Njoku generally catered to single mothers, she also rented a room to White, a single father with a two-year-old son. Other tenants in the house during the relevant period included Jasmine Mann, a single mother with an eleven-month-old daughter, and Amanda Figueroa, a single mother with a five-or six-year-old son. At the time of the events detailed below, White had been living in the house for two weeks, Mann for three weeks, and Figueroa for three months. All had been either homeless or at risk of homelessness prior to taking rooms in Njoku's house.
Njoku and Mann had a disagreement several days before the stabbing. On Friday, November 14, 2014, Njoku appeared at the house unannounced and learned that Mann had violated house rules by allowing her sister to spend the night. She confronted Mann, saying, "You need to get the F out of my house, and I don't care where you go, but you need to go now." Mann and her daughter left the house, but returned the following night.
Njoku came back to the house on Sunday, November 16, 2014. Njoku confronted Mann again, saying, "What are you still doing here?" "You need to leave." Mann responded that she could not "just leave," adding that she had a right to three days' notice prior to being evicted. Njoku denied that she was under any obligation to give notice, saying, "you need to get the hell out of my house" and "this is my house, I don't have to give you a warning about how long you have to be out of here."
White, who was standing nearby, interjected. White agreed that Mann was entitled to notice. He added that he did not want to continue living in a house in which the parent of a small child could get kicked out without notice. He told Njoku to stop yelling at Mann and asked that she refund money he had already paid in rent. Njoku angrily responded, "You can leave, I don't care. And you're not getting your money back."
The argument continued in this fashion for some time, with Njoku and White yelling back and forth at one another. Eventually, White called his sister and asked her to pick him and his son up. Njoku responded, "If you are calling your sister I'm calling my family too." Njoku then phoned someone. Figueroa heard Njoku tell the person on the other end of the line that she had a tenant who did not want to get out of her house, and she needed help. Mann heard Njoku say, "My tenants are trippin.' Come. You need to get over here. I'm going to send you the address." Njoku then turned to Mann, saying "You're about to go. You're about to leave."
Roberts and Simon knocked on the door a short time later. As noted, Roberts is Njoku's brother, and Simon, who is not a party to this appeal, is Roberts' wife. Njoku answered the door and showed Roberts and Simon to a common area (designated by the parties as "the northeast living room"), which was then occupied by White and Mann. A discussion ensued.
The discussion began civilly enough, with Simon telling White and Mann that she was celebrating a birthday that day. The mood changed, however, when Roberts began commenting on White's financial circumstances. According to Mann, Roberts said to White, "We wouldn't have this problem [referring to White's dispute with Njoku] if you was man enough to have a house for your kid; you wouldn't have to be renting a room." As Mann would later testify, "the argument was getting very heated, it felt like it was going to be a fight any moment."
At some point, White called 911. A recording of the 911 call was played for the jury. On the recording, White can be heard explaining the situation with Njoku to the 911 operator in a measured tone of voice as an unidentified woman yells in the background. Later, White can be heard interacting with an unidentified man, saying, in a louder tone, "Don't—no, no, no. First of all, don't come in my—if we gonna do that we can do that. Don't—don't—better believe I'm not scared." Later still, White can be heard saying, "Dude, I've done martial arts all my life. Best believe I'm not scared." White can also be heard saying, "Bro, don't come at me like that." During the trial, Mann recalled that Roberts was "talking smack" and "running up on" White. White, for his part, was "upset" but "standing still." Following a further discussion, which was repeatedly interrupted by people speaking loudly in the background, the 911 operator agreed to send someone to the house.
Njoku had called 911 earlier that day, saying that she needed help with some people who were staying in her house and being disruptive. Njoku cancelled the call a short time later.
A short time later, Njoku, Roberts and Simon announced that they were going to the liquor store. As they were leaving, Njoku said, "We're about to go to the store, and when we come back it's about to get real turnt up in here." During the trial, Figueroa testified that she understood Njoku to mean that it was going to get "crazy," and "not in the fun way."
White called 911 a second time after Njoku, Roberts and Simon left. Believing the dispute to be over, White cancelled the earlier request for assistance, and then went outside and smoked a cigarette with Mann. White's two-year-old son also went outside. Mann's eleven-month-old daughter remained inside (in a common area designated by the parties as "the southeast living room") eating a snack and watching television in her stroller.
The calm was short lived. Njoku, Roberts and Simon returned to the house after approximately thirty minutes. White and Mann went back inside. Figueroa went to her room and closed the door. Njoku saw Mann's daughter and said, "Why is the stroller on the carpet?" Njoku began to push the stroller towards a sliding glass door leading outside. Mann's daughter began to cry. Mann said, "Wait, get your hands off my daughter's stroller. You're not pushing my daughter outside." Njoku then reached down and "yanked" Mann's daughter, who was still strapped in, out of the stroller. Mann said, "What are you doing? Don't touch my daughter." White interjected, saying, "Don't touch her daughter. You're doing too much. Calm down." As Mann would later recall, everyone in the room started "yelling at each other" and "getting into it." With tempers rising, White called 911 a third time.
During the course of White's third 911 call (the substance of which is described below), Mann (along with her daughter) and White moved from the southeast living room to the northeast living room. Njoku, Roberts and Simon soon followed. Figueroa and her son remained in their room with the door closed. However, Figueroa opened the door and peeked out several times during the course of the ensuing altercation.
An audio recording of White's third call to 911 was played for the jury. The recording begins with White telling the 911 operator, "We have an emergency here. The landlord has come back and they're trying to fight the girl and . . . [¶] . . . and trying to take the baby and everything." Moments later, White can be heard yelling, "[Y]ou locked my son outside? Oh, my fuckin' God." An irate White continued, "Are you fucking serious? You locked my [two year old] outside. Oh, my God. No, she locked my son outside. She locked my son outside. Are—and you're laughing about it? What the fuck. Oh my God, oh my God. God Lord have mercy. Oh, my God." During the trial, Mann explained that White was yelling because his son had been locked outside, and he believed that Njoku was responsible. Mann testified that she had not seen Njoku lock the door, but confirmed that "she was laughing about it."
Moments later, White can be heard telling the 911 operator, in a more composed tone of voice, "My name is Edward White. They're in this house. We paid rent for it. She hasn't given us our rent back. This—this person is trying to invite more people, somehow he can come get me out of the house and everything like that." The 911 operator can be heard responding, "Okay. Who is he?" The following exchange can then be heard:
"[WHITE]: It's [unintelligible]. I got kids in here.
"911: Who's he?
"[WHITE]: I will fight for my rights on everything I love.
"911: Okay. Edward?
"[WHITE]: I don't know who this dude is but I guess it's her brother or something like that."
By now, Mann was seated in a recliner with her daughter in her lap. Roberts was standing approximately two feet away from Mann. White was standing approximately 16 feet away from Roberts, near the door to a utility room. During the trial, Mann testified that Roberts was angry, and moving closer to White. On the 911 recording, White can be heard saying, "Dude, I want you to come."
Njoku and Simon were also in the northeast living room. In Mann's opinion, Simon was trying to defuse the situation by drawing White's attention to the fact that his son, now in the northeast living room, was unharmed. By contrast, Mann recalled, Njoku was "in my face, just trying to fight."
Mann watched as Roberts pulled what appeared to be a switchblade knife out of his pocket. Roberts opened the knife with a flick of the wrist. He then walked across the room towards Njoku and White, using a gait that Mann described as "like a menacing kind of little thug." The verbal sparring continued. According to Mann, Njoku "was talking mess to [Mann], talking mess to [White], just kind of, in [her] opinion, um, making the scene bigger than what it had to be. It was like egging him on." As Mann put it, Njoku was "hyping [Roberts] up" and "playing like the instigator." On the 911 recording, White can be heard repeating the words, "Y'all doin' too much," against a background of excited crosstalk. Suddenly, Roberts charged White.
Roberts and White exchanged blows, with each man landing several punches. White, who was taller, appeared to gain the upper hand. At that point, Njoku and Simon joined the fray. As Mann would later testify, "all four were fighting." The scene was confusing, however, and Mann allowed that Simon may have been trying to break up the fight.
On the 911 recording, the sounds of a scuffle can be heard, punctuated by the sounds of one or more female voices screaming "Stop" and "Oh, my God." A muffled male voice can be heard saying, "Get off my wife." During the trial, however, Mann was adamant that White did not make physical contact with Simon.
The melee moved from the northeast living room to the adjoining utility room. Around the same time, Figueroa emerged from her room and saw Roberts, Njoku and Simon "take [White] down." Figueroa screamed at the group to stop and ran back to her room. Figueroa did not see a knife in Roberts' hands.
Mann, still seated in the recliner, heard Figueroa yelling "stop, stop," and another sound, which she believed to be the sound of White being stabbed. On the 911 recording, the sounds of a struggle can be heard, followed by the sound of groaning. Upon hearing these sounds, Mann sprang from the recliner with her daughter in her arms, grabbed White's son, and ran out the door.
Around the same time, Figueroa emerged from her room again and saw Njoku and Simon standing on either side of White, who was now lying on the ground in the fetal position. According to Figueroa, Njoku and Simon were stomping on White's upper body. During the trial, Figueroa testified that she screamed at Njoku and Simon to stop. Figueroa recalled that Njoku looked in her direction but did not appear to see her. In Figueroa's words, Njoku "whipped her hair around and just looked like in my direction and just turned her head back, and it wasn't her, and then she just kept stomping." According to Figueroa, Njoku "looked crazed." Figueroa retreated to her room. Although Figueroa can be heard screaming at various points on the 911 recording, she could not make out the sounds of her own screaming during the stomping episode, or say when, in relation to the stabbing, the stomping might have occurred.
On the 911 recording, a man's voice can be heard saying, "Nigga get your fuckin' hands off me." Another male voice can then be heard saying, "You stabbed me really good. You stabbed me. You got me." Moments later, the same male voice can be heard saying, "Can somebody help me, please? I don't want to die for my son, please?" A woman's voice responds, "Get up."
Figueroa stayed in her room, listening, until the sounds of fighting stopped. When she came out, she saw White's body lying halfway in the utility room and halfway in the northeast living room. Njoku, Roberts and Simon were gone. Figueroa dragged White, who was still alive, into the northeast living room and called 911. As Figueroa spoke with 911, Njoku and Simon reappeared. Simon, a certified nurse's assistant, instructed Figueroa to apply pressure to White's wounds.
Figueroa held White and waited for paramedics to arrive. As she waited, she noticed Njoku and Simon running into the utility room and then out of the house, and then back again. During the trial, Figueroa estimated that Njoku and Simon completed this circuit at least three times. Figueroa also noticed that Njoku and Simon were moving things around in the utility room, as if they were looking for something. During the trial, Figueroa explained that she thought they were looking for White's phone, which was still connected to 911. White, still conscious, was also thinking about the phone. He begged Figueroa to join the search, saying "go get the phone because they're not going to be able to prove it unless they have that phone." Neither Njoku nor Simon offered to help White, who lay crying in pain on the floor. Instead, Njoku told White to "shut the fuck up." Njoku then continued rummaging around in the utility room.
Njoku did, however, place another call to 911, which she ended when she learned that Figueroa was already on the phone with 911.
Meanwhile, Mann, having run to a neighbor's house, was placing her own call to 911. Mann told the 911 operator, "What happened, right, they started fighting and the guy took out the knife and he ran up on him and then next thing you know [White] hit him and then the, uh, guy had a knife again and they just start like crazy ass stuff. It was like a real, you know, scuffle." Moments later, Mann said, "I have no idea what happened. Because most likely he stabbed him because I think the other guy started beating him up so I think he stabbed him because I heard the sound and this is crazy. I can't believe he did that like that. It's crazy."
Mann concluded the call with 911 and walked back to the house. By then, police officers and an ambulance had arrived. Mann watched as White was loaded on a stretcher into an ambulance. She then encountered Figueroa. Figueroa, who had already been contacted by responding officers, told Mann that she had seen Njoku and Simon stomping on White, and heard them "talking shit to him while he was dying." Figueroa told Mann that she had not reported these things to responding officers, as she had been afraid to do so. Mann encouraged Figueroa to tell police what she had seen. Figueroa spoke with detectives a short time later and reported the stomping.
During the trial, Deputy Adrian Zuniga, who responded to the scene, testified that Figueroa said that she had not seen any part of the altercation. Figueroa explained that she had been afraid to tell Zuniga the truth, as Njoku had been standing nearby.
White was pronounced dead on November 16, 2014, at 6:14 p.m., an hour after he placed his final 911 call. An autopsy revealed that White had been stabbed three times: once in the chest and twice in the abdomen. The fatal wound was three and one quarter inches deep and struck White's inferior vena cava, a major blood vessel returning blood from the lower part of the body to the heart. White died from loss of blood.
Crime scene investigators found White's phone underneath a dryer in the utility room. Investigators also found bloody clothes in the trunk of a Dodge Avenger parked in front of the house, which was registered to Simon. DNA analysis indicated that the blood matched two contributors: White and Roberts. Investigators also found blood on the boots that Njoku had been wearing at the time of the stabbing. DNA analysis indicated that the blood on Njoku's boots matched White.
Police contacted Njoku and Simon at the scene. Roberts surrendered to police eight days later. He had a cut on his pinky finger and a wound on his stomach. Police photographed Roberts' injuries.
During the trial, Dr. Joseph Pestaner, a forensic pathologist, testified for the prosecution about White's cause of death. On direct examination, Dr. Pestaner was also shown photographs of the injury to Roberts' finger. Dr. Pestaner opined that the injury did not appear to be a bite wound, but was more consistent with the type of injury that sometimes occurs when a person using a knife encounters resistance, which causes their hand to come into contact with the blade.
On cross-examination, Dr. Pestaner was shown photographs of the injury to Roberts' stomach. Asked whether the wound was consistent with a bite mark, Dr. Pestaner responded, "I wouldn't—that wouldn't come to mind for me again on that. I mean, there's some wounds on the front of the abdomen. There are—again, it looks like there's a reaction to the edges of the wound. Perhaps they're more punctures and consistent with a—but I would—again, they just look like wounds." On further cross-examination, Dr. Pestaner testified that he has "seen cases where people have bite marks." However, Dr. Pestaner allowed that he had never before been asked to render an opinion as to whether a particular injury was a bite mark. Dr. Pestaner noted that other experts are usually called to render such opinions. B. Defense Case
Roberts testified in his own defense. Roberts explained that he planned to have drinks with Njoku and Simon at the house to celebrate Simon's birthday. He denied that Njoku called him to help her in evicting her tenants. He also denied discussing the eviction of Mann and White during the trip to the liquor store with Njoku and Simon.
Roberts testified that he went into the kitchen after returning from the liquor store and overheard the confrontation between Njoku and Mann in the southeast living room. Roberts testified that Njoku ordered Mann to leave, and White interjected, saying "that's not fair, she shouldn't have to get out, and if she has to leave, he'll leave or something like that." According to Roberts, a discussion of prorated rent ensued, which came to an end when White discovered that his son had been locked outside. At that point, Roberts testified, White started screaming and "got in [Njoku's] face." According to Roberts, "He was pretty much pushing up on her, real close to her, and he kept saying that she locked his son outside." Roberts testified that he tried to separate White and Njoku, but only succeeded in drawing White's ire.
In Roberts' retelling, an enraged White reached over the heads of Njoku and Simon, who were standing between the two men, and struck Roberts at least three times. During the course of the altercation, Roberts said, the group backed into the utility room.
In the utility room, Roberts said, White "was swinging wildly, hitting everyone, hitting me some more, hitting my wife and sister." Although Roberts "got a couple of punches in," Njoku and Simon were both knocked to the ground. And Roberts himself was "getting beat on." According to Roberts, the brawl escalated further when White "went down on one knee," "buried his head into my stomach," clamped down with his teeth, and shook his head, "like he was a pit bull or something." Roberts testified that White briefly let go, and then bit him again. Roberts explained that the biting caused him to groan in pain, adding that some of the groaning sounds on the 911 recording came from him, not White. It was at that point, Roberts continued, that he pulled out his knife and stabbed White. According to Roberts, "I didn't even want to stab him, but he wouldn't stop, and he was hurting my wife and hurting my sister and hurting me." Roberts explained that he left the scene of the crime, and threw away the knife because he was scared.
Simon also testified. Simon explained that she and Roberts agreed to meet Njoku at the house because they were planning to eat dinner in the area. Simon maintained that Njoku did not say anything about problems with tenants when the plan for the evening was conceived.
Turning to the events immediately preceding the stabbing, Simon recalled that she returned from the liquor store with Njoku and Roberts and found Mann's baby eating noodles in her stroller in front of the television. Seeing the baby eating over the carpet, Njoku became agitated and grabbed the stroller. Mann said, "Don't touch my baby." White appeared, taking Mann's side in what was then still a verbal altercation. The group moved from the southeast living room to the northeast living room. White discovered that his son had been locked outside and became "hyped" and "angry." Simon tried to defuse the situation by pointing out that White's son was unharmed. In Simon's words, however, "he didn't calm down. He got angry." According to Simon, White "kinda, you know, pushed me out of the way. And then, um, I stumbled a little bit to my right, I believe." The next thing she knew, Simon continued, "the men were tussling."
Simon testified that White and Roberts traded blows, and then backed into the utility room. White gained the advantage, getting on top of Roberts, who was on the floor. Simon grabbed White's shirt and attempted to pull him off. As she did so, she heard Roberts say that White was biting him. She then heard "a grunt kinda noise" and the sound of glass breaking. Moments later, the fight was over. Simon testified that she did not see Roberts produce or use a knife. Simon denied stomping on White, and testified that she did not see Njoku stomping on White either.
After the stabbing, Simon testified that she went outside to see whether police were coming. She then went back inside. Simon denied that she rummaged through the utility room, searching for White's phone. Simon also stated that she did not appreciate the severity of White's injuries in the immediate aftermath of the stabbing.
On cross-examination, the prosecutor impeached Simon with a video recording of an interview in which she told police that she was outside at the time of the stabbing and did not know the man with the knife. Simon admitted that she lied to police. She explained that she was scared and trying to protect her husband. She added that, "I was absolutely wrong for lying, and I'm not proud of that, especially looking back at the tape. It was wrong." Several character witnesses testified that Simon has a reputation for helping others and finding peaceful solutions to interpersonal conflicts.
II. DISCUSSION
Roberts and Njoku present numerous claims of error on appeal. Each joins in the arguments made by the other. We address each argument in turn. A. 911 Recording
See California Rules of Court, rule 8.200(a)(5) (permitting a party to "join in or adopt by reference all or part of a brief in the same or a related appeal").
Njoku contends the trial court should not have admitted the portion of the 911 recording in which White can be heard saying, "I don't want to die for my son." Specifically, Njoku contends the trial court abused its discretion and violated her constitutional right to due process because (1) the statement was not relevant to any disputed issue, and (2) any probative value was substantially outweighed by the risk of prejudice. We are not persuaded the trial court abused its discretion.
1. Additional Background
Prior to trial, the prosecution filed a motion in limine seeking to admit the numerous 911 recordings made from the house on the day of the stabbing, including the recording of the White's third and final call to 911. Roberts filed a motion to exclude the portion of the recording in which White says, "I don't want to die for my son." The trial court heard argument on the first day of trial.
Roberts interpreted White's statement as, "I don't want to die in front of my son." The trial court found that the statement was actually, "I don't want to die for my son." "In other words," the trial court found, "I need to be here to take care of my son." No party challenges the trial court's finding.
During the hearing, Roberts' and Simon's counsel argued that the statement was more prejudicial than probative under Evidence Code section 352. The prosecutor responded that the statement was relevant "because that's what [White's] thinking about when he's lying there after being assaulted by these people." Roberts' and Simon's counsel countered that White's state of mind was irrelevant, adding that the challenged statement would only serve to generate improper sympathy for the victim. The prosecutor responded: "He's actually asking for help. That's what this is about. And these two defendants [Njoku and Simon] that were rummaging around in a utility room looking for his phone while he's asking for help." Simon's counsel agreed that White's plea for help was relevant, but argued that the challenged statement—"I don't want to die for my son"—was separate and unrelated. Njoku's counsel joined in the arguments made by the other defense counsel.
The trial court ruled from the bench as follows: "In listening to the recording, it appears that prior to that what is very prominent on the recording is Mr. White yelling about somebody putting his son outside, and he's emphatic about that. [¶] And it seems to me that any testimony or evidence that may be presented that had to do with the alleged victim initiating any of this—and I'm anticipating that, I don't really know how the evidence is gonna go, but I'm anticipating that—certainly the fact that the—Mr. White's concern when he's yelling about putting his son outside and asking for help, the fact that he is saying . . . 'I don't want to die for my son[,'] certainly is a reflection of the urgency in which he's asking for help, and that's what it appears to be on the [911] call. [¶] So there is some probative value to it."
The trial court continued: "The fact that his son was put outside, it's not gonna be a surprise to the jurors that there's a two-year-old son that's part of this. [¶] And there were other children also present. In fact, you can hear children at different times on different calls. [¶] So it's not any more inflammatory than anything else that you hear on the call. And it does have some probative value." Accordingly, the trial court denied the motion to exclude the challenged statement.
2. Analysis
"Only relevant evidence is admissible at trial. (Evid. Code, § 350.) Under Evidence Code section 210, relevant evidence is evidence 'having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' A trial court has 'considerable discretion' in determining the relevance of evidence. (People v. Williams (2008) 43 Cal.4th 584, 634.) Similarly, the court has broad discretion under Evidence Code section 352 to exclude even relevant evidence if it determines the probative value of the evidence is substantially outweighed by its possible prejudicial effects. (People v. Clark [(2011)] 52 Cal.4th [856,] 893.) An appellate court reviews a court's rulings regarding relevancy and admissibility under Evidence Code section 352 for abuse of discretion. (People v. Linton (2013) 56 Cal.4th 1146, 1181.) We will not reverse a court's ruling on such matters unless it is shown ' "the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." ' " (People v. Merriman (2014) 60 Cal.4th 1, 74.)
Njoku's evidentiary challenge focuses on the prosecutor's argument that White's statement—"I don't want to die for my son"—was probative of his state of mind in the immediate aftermath of the stabbing. According to Njoku, the statement should have been excluded because White's state of mind was irrelevant to any disputed issue at trial. Njoku's argument ignores the fact that the statement was admitted on another ground. Although the prosecutor referred to White's state of mind at the hearing, the trial court considered the statement in the context of an anticipated self-defense claim and found that White's statement was probative of the "urgency" with which he pleaded for help. Rather than render comfort or assistance to the dying man, Njoku told him to "Get up," and then joined Simon in an incriminating search for White's cell phone. The trial court could reasonably conclude that Njoku and Simon's callous response to White's plea was probative of their state of mind, and had a tendency in reason to rebut their claim that they acted in self-defense. We cannot say the trial court abused its discretion in finding the statement relevant.
Njoku observes that the prosecution never introduced any evidence from White's phone, and nothing in the record suggests that the phone contained incriminating evidence. Although the contents of the phone may have been of limited evidentiary value to the prosecution (particularly in view of the 911 recording), the trial court could reasonably conclude that Njoku and Simon's decision to search for the phone in the immediate aftermath of the stabbing was evidence of their consciousness of guilt.
In her reply brief, Njoku insists that White's statement cannot be considered evidence of her state of mind. However, Njoku's argument depends on an unduly blinkered view of the evidence. Contrary to Njoku's suggestion, nothing in the trial court's ruling suggests that the statement, standing alone, was admitted as relevant evidence of her state of mind. Rather, Njoku's state of mind was reflected in her response to White's statement.
Nor can we say the trial court abused its discretion in weighing the probative value of the statement against the risk of undue prejudice. We have listened to the 911 recording several times and agree with the trial court that the statement, "I don't want to die for my son," though heartrending, was no more inflammatory than anything else on the recording. The statement followed a prolonged struggle, which culminated in the sounds of a man groaning in pain and uttering the words, "My baby." These sounds were significantly more upsetting than the challenged statement, which was delivered in a comparatively calm tone of voice. As for the substance of the statement, the jury would not have been surprised to learn that White's son was present, or even that White was aware of the imminence of death. As the trial court suggested, there was ample evidence that children were present on the day of the stabbing, and White's son was involved in the events leading to the final confrontation in the utility room. There was also ample evidence that White knew he was at the point of death. Given the relevance of the statement to the anticipated self-defense claim, in highlighting Njoku's callous response to a dying man, we cannot say the trial court abused its discretion in finding its probative value was not substantially outweighed by the risk of undue prejudice.
"The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant's trial fundamentally unfair." (People v. Falsetta (1999) 21 Cal.4th 903, 913.) Having concluded that the trial court did not abuse its discretion in admitting the challenged evidence, we must also conclude that defendant's due process rights were not violated. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1029, citing Falsetta, supra, at pp. 916-918.) B. Prosecutorial Misconduct
Next, Njoku argues the prosecutor committed misconduct in closing argument by (1) encouraging jurors to place themselves in White's position as a victim, (2) inviting jurors to base their decision on community standards, rather than the law, (3) instructing jurors to remove themselves from the jury if they could not vote to convict Simon, and (4) arguing facts not in evidence and shifting the burden of proof to Roberts and Njoku. We address these claims momentarily, pausing first to review the applicable legal principles.
1. Applicable Legal Principles
The Fourteenth Amendment to the United States Constitution is violated when a prosecutor's misconduct infects the trial with such unfairness as to deny due process. (People v. Tully (2012) 54 Cal.4th 952, 1009.) The misconduct must be significant enough to deny a fair trial. (Ibid.) Before a federal constitutional error can be deemed harmless, a reviewing court must declare it was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
Even if the prosecutor's misconduct does not result in a fundamentally unfair trial, California law is violated if the prosecutor uses deceptive or reprehensible methods in attempting to persuade the jury or the court. (People v. Tully, supra, 54 Cal.4th at pp. 1009-1010.) A violation of state law is cause for reversal only when it is reasonably probable that a result more favorable to the defendant would have occurred had the prosecutor not made the improper comment. (People v. Milner (1988) 45 Cal.3d 227, 245; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) In either case, only misconduct that results in prejudice requires reversal. (People v. Fields (1983) 35 Cal.3d 329, 363.)
When a prosecutor's closing argument is challenged, the question " 'is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' " (People v. Harrison (2005) 35 Cal.4th 208, 244; see People v. Clair (1992) 2 Cal.4th 629, 663.) The prosecutor's statements are examined in the context of the entire argument and the instructions given to the jury. (See People v. Morales (2001) 25 Cal.4th 34, 44-46.) We do not lightly infer that the jury drew the most, rather than the least, damaging meaning from the prosecutor's statements. (People v. Shazier (2014) 60 Cal.4th 109, 144; People v. Dykes (2009) 46 Cal.4th 731, 771-772.)
2. Sympathy for the Victim
During closing argument, the prosecutor reviewed the jury instructions for homicide (CALCRIM No. 500), focusing on the differences between first degree murder (CALCRIM No. 521), second degree murder (CALCRIM No. 520), and voluntary and involuntary manslaughter (CALCRIM Nos. 570, 571, 580). Turning to the element of malice, the prosecutor explained: "Malice aforethought can be divided into two categories. One is express malice. I'm going to kill you, all right, or I'm taking out a knife and I'm going to work so hard for so many minutes until I've stabbed you." The prosecutor continued: "All right. That very act, stabbing someone to death, it's probably unfathomable for most of you to take out a knife, to open up a blade, and to take that blade to a person. It's . . . ." Roberts' counsel objected on grounds of prosecutorial misconduct and the trial court overruled the objection. Njoku argues the italicized language improperly played upon the jury's sympathy for White. We disagree.
Here, and throughout this opinion, we have italicized the statements alleged to constitute misconduct.
As a general rule, a prosecutor " 'may not invite the jury to view the case through the victim's eyes, because to do so appeals to the jury's sympathy for the victim.' " (Peole v. Lopez (2008) 42 Cal.4th 960, 969.) Here, however, the prosecutor was not asking jurors to put themselves in White's shoes. Rather, the prosecutor was asking the jury to consider the crime from Roberts' perspective. Specifically, he was making the point that the act of stabbing someone to death requires a degree of sustained physical effort from which the jury could infer that the stabber acted with malice. That the prosecutor was asking jurors to put themselves in Roberts' shoes is clear from the very next thing he said, which was: "That act of stabbing someone to death takes a lot of work. And you heard it. You heard it on that recording. Okay. It was a protracted struggle. And finally, an hour—a minute and a half into it you hear Mr. White screaming. Okay. That's how long he had to fight to get the knife into him. [¶] That very act in itself is an express intent to kill."
The prosecutor's remarks were not an invitation to jurors to view the crime through the eyes of the victim. (Cf. People v. Arias (1996) 13 Cal.4th 92, 160 [prosecutor committed misconduct by inviting jury to consider victim's rights], cf. People v. Kipp (2001) 26 Cal.4th 1100, 1130 [prosecutor committed misconduct by asking jury to reflect on all victim lost through her death].) Nor were they needlessly inflammatory or principally aimed at arousing the passion or prejudice of the jury. (See People v. Farnam (2002) 28 Cal.4th 107, 168 ["Prosecutors 'are allowed a wide range of descriptive comment and the use of epithets which are reasonably warranted by the evidence' [citation], as long as the comments are not inflammatory and principally aimed at arousing the passion or prejudice of the jury"].) On the record before us, the prosecutor's discussion of the physical act of stabbing someone was a fair comment on the evidence, and within the wide latitude granted during argument. We therefore reject the claim of misconduct.
3. Community Standards
The prosecutor continued his closing argument, turning, eventually, to the instructions for aiding and abetting (CALCRIM Nos. 400, 401, 403). The prosecutor explained: "Aiding—aiding and abetting makes sense. And I understand it's not something that you have thought of many times, but in society we are very concerned, as a society, and it's reflected through our laws, that if multiple people get together and commit crimes, bad things will happen, okay, because now you're multiplying the force that's being used, if it's a violent crime, and you have more than one player, now the force used is multiplied." The prosecutor continued along these lines, emphasizing the policy judgments underlying the aiding and abetting laws. The prosecutor then said, "Okay. In for a penny in for a pound. Okay. And that's us as a society speaking. We don't want groups of people beating up . . . ." Simon's counsel objected on the grounds that the prosecutor's argument was based on "what society wants as opposed to following the law." Roberts' counsel joined in the objection.
The trial court responded: "What he referred to was society as a collection of our laws. So just rephrase." The prosecutor continued: "I'm talking about our laws, and that's all I'm talking about. These laws come down through centuries. Okay. Aiding and abetting has been around for probably a millennium. Our law is so old. You talk about Magna Carta and all that. We've had jury trials in [Anglo] American societies forever. Okay. Aiding and abetting, this is one of those laws that we've come up [with] as a community." Roberts' counsel renewed the objection, which was overruled. Njoku's counsel joined the objection out of the presence of the jury, after the prosecutor completed his closing argument. We assume without deciding that Njoku's claim was adequately preserved.
On appeal, Njoku argues the prosecutor's argument encouraged jurors to evaluate the evidence according to community sentiment, rather than the law. We disagree. Contrary to Njoku's suggestion, the prosecutor's argument cannot be reasonably construed as an invitation to follow community standards or disregard the law. Rather, as the trial court suggested, the prosecutor's argument can be reasonably construed to mean that the law of aiding and abetting reflects society's view that a person who aids and abets the commission of a crime shares the guilt of the actual perpetrator. (§ 31.) We perceive no reasonable likelihood that the jury would have construed or applied the prosecutor's argument in an objectionable fashion.
4. Instruction to Jurors to Remove Themselves from the Jury
The prosecutor's discussion of aiding and abetting focused on Simon. Towards the beginning of his closing argument, the prosecutor acknowledged that Simon might pose a problem for the jury, "because she presents as such a normal person, and she had so much going for her." The prosecutor continued, "And you know, for some of you, having listened to these character witnesses—and mind you, character evidence can raise a reasonable doubt. That's the instruction you get. But some of you listening to this character evidence may have just gotten to a point where you no longer can evaluate the facts for what they are, okay, and her lies for what they are, but were just so struck by the tragedy that her life has taken by her actions on that day, you know, and you—again, I want you to be brutally honest with yourself, if that's where you are, we have a couple of alternates who can step in, okay, because this is about a deed."
The prosecutor then elaborated on the law of aiding and abetting, arguing that the evidence established Simon's derivative culpability for murder. Towards the end of this discussion, the prosecutor concluded, "You witnessed a murder. And it's a tragedy on so many levels. Obviously[,] Mr. White is no longer with us. That's the ultimate tragedy, but also Ms. Simon. [¶] And I remind you, okay, you cannot consider penalty or punishment. That is not for you to consider. That's the [j]udge's job. All right. She'll make sure that the appropriate sentences are handed out according to the law. Okay. [¶] If you cannot do it, all right, if you can't do it because you feel sorry for Ms. Simon, you got to tell us, because you are not advocates. [¶] What I stand up here and say is not evidence. You decide what the evidence is. What they're gonna say is not evidence. You decide what the evidence is. The only way you can do that is if you're impartial and you're not rooting for anyone." The prosecutor then concluded his closing argument.
Njoku's counsel objected out of the presence of the jury, arguing: "He basically told this jury that if they cannot convict or feel they cannot convict, don't worry about it, get off the case, we'll bring an alternate in to do it." Njoku's counsel continued: "That's improper to leave these 12 jurors with the impression that if they don't go the way the prosecution feels they should go, just let the Court know, and we'll bring in an alternate. That's not proper argument." The trial court responded: "As I understood the argument in the context, it was if you're feeling sorry for Ms. Simon or if you have sympathy for Ms. Simon and you because of that can't otherwise think clearly based on the law, which is how I took it when he gave the argument."
On appeal, Njoku argues the prosecutor committed misconduct by encouraging jurors to remove themselves from the jury if they could not convict. We assume without deciding the claim was preserved, noting that the trial court invited defense counsel to propose a curative instruction, which they failed to do. In any case, the claim lacks merit. In context, the prosecutor's argument was an invitation for jurors to speak up if they were so overcome with sympathy for Simon that they found themselves unable to follow the law as instructed. We do not lightly infer that the jury drew the most, rather than the least, damaging meaning from the prosecutor's statements. (People v. Shazier, supra, 60 Cal.4th at p. 144.) Furthermore, Simon was acquitted, without any of the jurors asking to be discharged. Had jurors understood the prosecutor's argument in the manner Njoku suggests, they would have either convicted or asked to be excused. On the record before us, where neither of these things happened, we perceive no reasonable likelihood that jurors understood the prosecutor to mean that they should remove themselves from the jury if they felt they could not convict. We therefore reject the claim of misconduct.
5. Arguing Facts not in Evidence and Shifting Burden of Proof
As noted, the defense theory was self-defense. In closing argument, Roberts' trial counsel stressed that White was a younger, taller man who claimed to know martial arts. According to Roberts' trial counsel, White threw Simon to the ground and then grabbed hold of Roberts' stomach with his mouth, causing Roberts to believe he was in imminent danger of being killed or suffering great bodily injury. Roberts' trial counsel urged the jury to "[l]ook at the bite mark to his belly."
In rebuttal, the prosecutor argued that White was fighting for his life in the utility room, and grabbed Roberts' stomach with an extremely tight grip, thereby causing the injury. The prosecutor reminded the jury that Roberts screamed, "get your fucking hands off me" during the height of the fight, not "stop biting me." Recalling Dr. Pestaner's testimony, the prosecutor also reminded the jury that, "The pathologist wouldn't say it was a bite wound. The pathologist—I think he testified he had done something like 6,000 autopsies. He's seen a few bodies. He's seen a few bite marks. He said that didn't look like a bite mark to him, you know." The prosecutor then noted that the defense had not brought in an expert to testify that the stomach wound was a bite mark, adding, "If you look at that photograph, it looks like maybe a snake bite. It looks like a really sharp, crescent sharp angle at the top, like maybe how fangs would bite, but it certainly doesn't look like teeth to me, and I wouldn't think it does to you either." No defense counsel objected to the prosecutor's argument.
On appeal, Njoku argues the prosecutor misstated Dr. Pestaner's testimony regarding the wound on Roberts' stomach. She also argues the prosecutor committed misconduct when he theorized, apparently facetiously, that the wound might have been the result of a snake bite. She also argues the prosecutor shifted the burden of proof when he wondered aloud why no defense expert was called to testify that the wound was the result of a human bite. These claims are forfeited.
Generally, a defendant may not complain of prosecutorial misconduct on appeal unless the defendant raised a timely objection in the trial court on that ground and requested that the jury be admonished to disregard the impropriety. (People v. Centeno (2014) 60 Cal.4th 659, 674.) There are two exceptions to forfeiture: (1) the objection or the request for an admonition would have been futile; or (2) the admonition would have been insufficient to cure the harm occasioned by the misconduct. (People v. Panah (2005) 35 Cal.4th 395, 462.) A defendant claiming one of these exceptions must find support for it in the record. (Ibid.)
As noted, no objection was made to the purportedly improper argument in the trial court. Although Njoku finds fault with the prosecutor's argument on appeal, she does not address the forfeiture issue in her opening brief, let alone attempt to establish futility. Instead, Njoku raises a perfunctory futility argument in her reply brief, arguing for the first time that any failure to object was the result of ineffective assistance of counsel. We do not consider claims raised for the first time in a reply brief. (See, e.g., People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 [claim of ineffective assistance of counsel raised for the first time in reply brief is forfeited].)
In any event, Njoku's claim of prosecutorial misconduct fails on the merits. Njoku argues the prosecutor misstated evidence by arguing that Dr. Pestaner testified the wound on Roberts' stomach was not a bite mark. As previously discussed, Dr. Pestaner testified that he had seen bite marks before, but had never been asked to render an opinion as to whether a particular wound was the result of a bite. When asked whether the wounds shown in the photographs of Roberts' stomach were bite marks, Dr. Pestaner responded, "I wouldn't—that wouldn't come to mind for me again on that." The prosecutor described Dr. Pestaner's testimony in appropriately circumscribed terms. Far from suggesting that the pathologist had offered a definitive opinion on the cause of Roberts' stomach wound, the prosecutor said that Dr. Pestaner "wouldn't say it was a bite wound" and "said that [it] didn't look like a bite mark to him." The prosecutor's account of Dr. Pestaner's testimony was not inaccurate. But even assuming, that the prosecutor misstated Dr. Pestaner's testimony, any such misstatement would have been harmless. The jury requested a read back of Dr. Pestaner's bite mark testimony during deliberations, and was therefore not dependent on the prosecutor's characterization.
Njoku argues the prosecutor committed misconduct in arguing the wounds were either the result of White's death grip or a snake bite, noting, "There was no evidence in the record to support either conclusion." Njoku is mistaken. As the People observe, there was evidence to support the conclusion that the wound was the result of an extremely tight grip: On the 911 recording, at the height of the struggle, Roberts can be heard saying, "get your fuckin' hands off me," not "get your mouth off me" or "stop biting me." The prosecutor was free to argue that Roberts' statement supports an inference that White was clutching Roberts, not biting him. (People v. Woods (2006) 146 Cal.App.4th 106, 112 ["A prosecutor may fairly comment on and argue any reasonable inferences from the evidence"]; see also People v. Collins (2010) 49 Cal.4th 175, 230 ["the prosecutor 'enjoys wide latitude in commenting on the evidence, including the reasonable inferences and deductions that can be drawn therefrom' "].) The prosecutor was also free to suggest, through the use of sarcasm, that alternative explanations for the wound were implausible. (See, e.g., People v. Zambrano (2007) 41 Cal.4th 1082, 1154-1155 [prosecutor's use of "pungent language" not improper where "[i]t was clear the prosecutor's comment was aimed solely at the persuasive force of defense counsel's closing argument, and not at counsel personally"], disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) There is no reasonable likelihood that jurors misunderstood the prosecutor's argument.
Finally, we perceive no misconduct in the prosecutor's observation that the defense failed to call an expert to testify that Roberts' wound was a bite mark. While a prosecutor may not assert that a defendant was required to produce evidence, the prosecutor may comment that the defendant has not produced any evidence with respect to contested facts, particularly when the prosecutor also acknowledges the correct burden of proof. (People v. Bradford (1997) 15 Cal.4th 1229, 1338-1340; People v. Medina (1995) 11 Cal.4th 694, 755; People v. Bennett (2009) 45 Cal.4th 577, 596.) Similarly, it is not misconduct for a prosecutor to point out the failure of the defense to call logical witnesses. (Bradford, supra, at p. 1340.) Here, Roberts put the cause of the injury on his stomach at issue by testifying that the wound was a bite mark. It was not misconduct for the prosecutor to comment on the credibility of Roberts' testimony or the state of the evidence more generally concerning the cause of the injury. Furthermore, the prosecutor made a point of reminding the jury, at the beginning of his rebuttal argument, that he had the burden of proof. On this record, we perceive no reasonable possibility that the jury would have understood or applied the prosecutor's argument in an objectionable fashion. Had the claim of prosecutorial misconduct been properly preserved and presented, we would have rejected it. C. Exclusion of Impeachment Evidence
Next, Njoku argues the trial court abused its discretion and violated her right to a fair trial by excluding impeachment evidence of a pending assault charge against Mann. Specifically, Njoku argues the circumstances surrounding the pending charge were substantially similar to those presented in the instant case and would have cast doubt on Mann's veracity. We find no error.
1. Additional Background
Prior to trial, the prosecution moved in limine to preclude defendants from impeaching Mann with the facts underlying her pending assault charge. The motion averred that Mann was in custody, having been arrested for assault with a deadly weapon (§ 245, subd. (a)(1)) on August 10, 2015, some nine months after the stabbing at issue in this case. The motion indicated that the assault arose from a dispute with a roommate, which allegedly culminated in Mann slashing the roommate's finger with a knife. The motion acknowledged that the pending charge was relevant and admissible for the limited purpose of impeaching Mann's credibility under People v Wheeler (1992) 4 Cal.4th 284 (Wheeler), and proposed that "the defense be allowed to ask Ms. Mann whether she is in fact being prosecuted for assaulting her roommate with a knife but to limit [cross-examination] to that one question."
Roberts' trial counsel opposed the motion, arguing that the circumstances underlying the pending charge were similar to the present case, inasmuch as both involved landlord/tenant disputes that ended in stabbings. Roberts' trial counsel also argued that Mann lied to police about the dispute with the roommate, which was probative of her credibility. The prosecutor responded that an assault charge is not as probative of credibility as an embezzlement or theft charge and, in any case, limited questioning would be sufficient to let the jury know that Mann had been charged with a crime of moral turpitude. The trial court expressed skepticism that the circumstances underlying the pending charge were relevant to the present case, adding, "At this point, since there has been no hearing, there has been no trial, there has been nothing proven, and we're not gonna have a little mini trial here on something that's pending that may very well be going to trial, I don't know." The trial court continued: "I am aware of my authority under Evidence Code Section 352, and it seems to me that to put on another trial within this one would be inappropriate and certainly confusing and overburdensome [for] the jury." Nevertheless, the trial court agreed to consider a police report relating to the pending charge which, in Roberts' trial counsel's view, raised serious questions about Mann's credibility.
The trial court reviewed the police report and found that the pending charge against Mann was only minimally probative of her credibility. The trial court explained: "After reading this report, there's a witness statement or there's a victim statement and what is labeled as a suspect statement. They are at odds with each other. There is nothing about these two reports that leads the court to believe that one or the other one is the one who's not telling the truth. This is a case that has to be tried." As far as Mann's credibility was concerned, the trial court continued, "I don't see anything in here that is a blatant lie as opposed to just inconsistent with what the victim said in that case." Accordingly, the trial court concluded, "I am exercising my discretion under [Evidence Code section] 352. I do not believe that this goes to her credibility in terms of her testimony and what happened in . . . November of 2014. It's totally unrelated. And in reading it, I think it's just a case that has to be tried. [¶] So that's excluded."
The trial court made clear that Mann could be asked about her expectations in the pending case and whether any promises of leniency had been made to her, but not about the underlying facts. The trial court added, "But the reality of it is that she's gonna come in here in custody. It's not going to be a surprise that she's in custody, I'm assuming."
2. Analysis
Evidence that a witness has committed acts involving moral turpitude is generally relevant and admissible to impeach his or her credibility. (People v. Contreras (2013) 58 Cal.4th 123, 157, fn. 24; Wheeler, supra, 4 Cal.4th at p. 295.) "Misconduct involving moral turpitude may suggest a willingness to lie [citations], and this inference is not limited to conduct which resulted in a felony conviction." (Wheeler, supra, at pp. 295-296.)
The trial court retains discretion to exclude impeachment evidence under Evidence Code section 352. (Wheeler, supra, 4 Cal.4th at pp. 295-296.) "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) Thus, Evidence Code section 352 "empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." (Wheeler, supra, at p. 296.)
"When exercising its discretion under Evidence Code section 352, a court must always take into account, as applicable, those factors traditionally deemed pertinent in this area. [Citations.] But additional considerations may apply when evidence other than felony convictions is offered for impeachment. In general, a misdemeanor—or any other conduct not amounting to a felony—is a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value." (Wheeler, supra, 4 Cal.4th at pp. 296-297.)
We review a trial court's rulings regarding the admission or exclusion of evidence under Evidence Code section 352 for abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195.) A trial court's discretionary ruling under Evidence Code section 352 will not be disturbed unless the court acted in an "arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) "Because the court's discretion to admit or exclude impeachment evidence 'is as broad as necessary to deal with the great variety of factual situations in which the issue arises' [citation], a reviewing court ordinarily will uphold the trial court's exercise of discretion." (People v. Clark, supra, +52 Cal.4th at p. 932.)
We perceive no abuse of discretion here. True, assault with a deadly weapon is a crime of moral turpitude. (People v. Elwell (1988) 206 Cal.App.3d 171, 175.) However, " ' convictions which are assaultive in nature do not weigh as heavily in the balance favoring admissibility as those convictions which are based on dishonesty or some other lack of integrity.' " (People v. Castro (1985) 38 Cal.3d 301, 315.) And here, of course, there was no conviction, only a pending charge. (Wheeler, supra, 4 Cal.4th at pp. 296-297 [trial courts should exercise particular care in admitting impeachment evidence other than felony convictions].) What's more, the events giving rise to the pending charge postdated the stabbing by many months, rendering the link between the two cases even more tenuous. On this record, the trial court could reasonably conclude that the assault on the roommate was not sufficiently probative of Mann's veracity to warrant a time-consuming detour into what was, essentially, a swearing contest between disaffected roommates.
The trial court could also conclude that the superficial factual similarities between the two cases would be more likely to confuse or distract jurors than to help them decide whether Mann was worthy of belief. On this record, we have little difficulty concluding that the trial court properly weighed the potential for juror confusion and undue consumption of time against the probative value of the proffered evidence, and reasonably declined to permit a "mini trial" on a collateral issue with minimal probative value. Having concluded that there was no abuse of discretion, we likewise conclude there was no violation of Njoku's constitutional right to a fair trial. (People v. Robinson (2011) 199 Cal.App.4th 707, 716.) D. Motion for New Trial
Next, Njoku argues the trial court erred in denying her motion for a new trial based on an alleged Brady violation and/or newly discovered evidence. Njoku fails to show that the trial court abused its discretion in denying the motion.
1. Additional Background
Mann testified in custody over the course of two days in October 2015. On cross-examination by Roberts' trial counsel, Mann was asked whether she expected to receive leniency in exchange for her testimony. Mann responded, "Uh, no, this has nothing to do with that case." The following colloquy occurred:
"[Roberts' trial counsel:] So you're not looking for—you don't have any expectation of the District Attorney's Office helping you with that case?
"[Mann:] No. No. No.
"[Roberts' trial counsel:] No discussions at all?
"[Mann:] No, not at all."
Later, on cross-examination by Njoku's trial counsel, Mann was asked, "You told us you're currently being charged with an incident?" Mann responded, "I'm not being charged. I'm going to actually beat the case." The following colloquy then took place:
"[Njoku's trial counsel:] I believe you said you have an assault case based on protecting your daughter?
"[Mann:] Yes
"[Njoku's trial counsel:] That's why you're in custody, correct?
"[Mann:] Yes."
Mann completed her testimony, subject to recall, on October 6, 2015. On October 7, 2015, Mann appeared in another department of the superior court and entered a no contest plea to a misdemeanor count of assault with a deadly weapon (§ 245, subd. (a)(1)). She was sentenced to credit for time served (59 actual days plus conduct days for a total of 117 days) and placed on three years of informal probation. The prosecutor did not disclose the plea agreement to the defense.
The jury returned its verdicts on October 22, 2015. Prior to sentencing, Njoku's counsel filed a motion for a new trial arguing that (1) the prosecution violated Brady, and (2) the existence of the plea agreement established the falsity of Mann's trial testimony, and therefore constituted newly discovered evidence within the meaning of section 1181, subdivision (8). The prosecution opposed the motion, arguing that the plea agreement was neither exculpatory nor newly discovered evidence. In support of the opposition, the prosecution submitted the declaration of Deputy District Attorney Nicole Shaker, the prosecutor responsible for handling the case against Mann. Shaker averred that she never discussed Mann's case with the prosecutor responsible for handling the present case. Shaker also averred that Mann's testimony was not a factor in plea negotiations or the ultimate disposition of the assault charge.
The trial court heard argument on the motion for a new trial May 27, 2016. During the hearing, Njoku's trial counsel suggested that the terms of the plea agreement were so generous as to raise an inference that Mann received leniency in exchange for her testimony. Building on this premise, Njoku's trial counsel argued that the timing of the plea agreement raised an inference that Mann had an expectation of leniency at the time of her testimony, and testified falsely when she denied having any such expectation. Njoku's trial counsel maintained that Mann's undisclosed expectation of leniency would have been relevant to impeach her and could have changed the outcome of the trial. Njoku's trial counsel also argued that the prosecutor had a duty to correct Mann's purportedly false testimony.
The trial court rejected these arguments. The trial court began by rejecting the notion that there was anything suspicious about the timing of the plea agreement. The trial court recalled that Mann was originally scheduled to appear in the assault case on October 5, 2015. However, the appearance was continued for two days at the trial court's request so Mann could testify in the present case. The trial court concluded, "there's no hidden agenda as to the timing." The trial court also rejected the inference that Mann must have been lying when she denied having any expectation of leniency, and Njoku's contention that Mann received an unusually generous plea bargain.
In the end, the trial court rejected the motion for a new trial based on newly discovered evidence, stating, "The court cannot conclude on this record that there was a suppression of a plea agreement that included any consideration for leniency for the witness based on her testimony. The timing alone does not do that. [¶] We have no idea what negotiations went on between the attorneys prior to the date that Ms. Mann entered her plea. We don't know that she wouldn't have been entering a plea had she not been sitting here testifying on October 4th [sic], which is how it turned out. Nor can the court conclude that her testimony was false. [¶] The evidence just simply does not support a finding that the prosecutor knowingly used false or misleading testimony."
The trial court also rejected the motion for a new trial based on a Brady error, finding that Njoku failed to show the existence of an undisclosed agreement or understanding that Mann would receive leniency in exchange for her testimony, failed to show that any such agreement or understanding was suppressed, and failed to show prejudice. Accordingly, the trial court rejected the new trial motion in its entirety.
2. Analysis
Njoku contends the new trial motion should have been granted based on the prosecutor's misconduct in not disclosing the plea agreement under Brady. Njoku also contends the motion should have been granted on the grounds that the prosecutor failed to correct Mann's purportedly false testimony. We are not persuaded by either argument.
Section 1181, subdivision 8 permits one convicted of a crime to move for a new trial "[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial." "In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: ' "1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits." ' " (People v. Delgado (1993) 5 Cal.4th 312, 328.)
Evidence that merely impeaches a witness will not ordinarily be significant enough to make a different result probable. (People v. Huskins (1966) 245 Cal.App.2d 859, 862.) In the present case, however, the evidence was not just alleged to have been newly discovered, but also alleged to have been suppressed in violation of Brady. Accordingly, Njoku's due process rights are implicated, raising a question as to the proper standard of review.
Generally speaking, a motion for a new trial on the ground of newly discovered evidence is looked upon with disfavor, and the trial court's ruling is reviewed for abuse of discretion. (People v. Delgado, supra, 5 Cal.4th at p. 328; People v. Shoals (1992) 8 Cal.App.4th 475, 485-486.) Our Supreme Court has held that the abuse of discretion standard also applies to new trial motions based on asserted Brady violations. (People v. Hoyos (2007) 41 Cal.4th 872, 917, fn. 27.) In that circumstance, the court has explained, "the asserted abuse of discretion is the asserted failure of the trial court to recognize violations of defendant's constitutional rights." (Ibid.) We therefore review the trial court's ruling for abuse of discretion. (Ibid.; see also People v. Davis (1995) 10 Cal.4th 463, 524 [" ' "The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears" ' "].)
"Under Brady, the prosecution violates a defendant's federal due process rights when it suppresses evidence material to the defendant's guilt or punishment, regardless of the good faith belief of the prosecution. [Citation.] Prosecutors have a duty to disclose 'material exculpatory evidence whether the defendant makes a specific request [citation], a general request, or none at all [citation].' [Citation.] There are three elements to a Brady violation: (1) the state withholds evidence, either willfully or inadvertently, (2) the evidence at issue is favorable to the defendant, either because it is exculpatory or impeaching, and (3) the evidence is material. [Citation.] As to the last element, '[e]vidence is material if there is a reasonable probability its disclosure would have altered the trial result.' [Citation.] Put another way, the defendant must show that 'the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.' [Citation.] 'Materiality includes consideration of the effect of the nondisclosure on defense investigations and trial strategies. [Citations.] Because a constitutional violation occurs only if the suppressed evidence was material by these standards, a finding that Brady was not satisfied is reversible without need for further harmless-error review.' [Citation.]" (People v. Lewis (2015) 240 Cal.App.4th 257, 263.)
We perceive no abuse of discretion in the trial court's determination that Njoku failed to establish a Brady violation. As the trial court observed, there was no evidence that Mann expected or received leniency in exchange for her testimony. And the plea agreement, though relevant to impeach Mann's false statement that she had not been charged with a crime, was not directly relevant to any disputed issue in the case. Although Mann's credibility was obviously an important issue in the case, there was no reasonable probability that disclosure of the plea agreement would have altered the trial result, as her false testimony was immediately corrected on the record. In any event, the jury was well aware that Mann was testifying in custody on an unrelated charge, and defense counsel had ample opportunity to cross-examine Mann on whether she had an agreement to testify in a certain manner to satisfy the prosecutor. On the record before us, the trial court could reasonably conclude that the evidence of Mann's plea agreement was not reasonably likely to have altered the trial result, and the absence of such evidence would not undermine confidence in the jury's verdict. We therefore find no abuse of discretion in the denial of the new trial motion based on the asserted Brady violation.
Nor do we find any abuse of discretion in the denial of the motion based on newly discovered evidence. In the trial court, Njoku argued that the plea agreement establishes the falsity of Mann's trial testimony. On appeal, Njoku argues that the prosecutor failed to correct Mann's false testimony. Both arguments ignore the fact that Mann's false statement was immediately corrected on the record. Njoku makes no attempt to demonstrate the trial court abused its discretion in rejecting her argument, and we discern no basis for so concluding. We therefore reject the claim of prejudicial error. E. Eviction Instruction
Next, Roberts contends the trial court erred by instructing the jury on the law of eviction. According to Roberts, the instruction was unnecessary and confusing, and may have led jurors to believe that imperfect self-defense would not be available if Njoku and Roberts acted unlawfully in attempting to evict White. Roberts additionally argues that the instruction preyed on the jury's sympathies and was "partisan to the prosecution's framing of the case." We assume without deciding that the trial court erred in giving the instruction, but find the error, if any, was harmless.
1. Additional Background
During the trial, the prosecution and defense each elicited testimony regarding the procedural requirements for effecting a lawful eviction. The prosecution proposed an instruction addressing the basic requirements for an eviction by way of unlawful detainer (the eviction instruction). Njoku's trial counsel objected, arguing that the proposed instruction was unnecessary and inappropriate. Roberts' trial counsel agreed. The prosecutor responded that the proposed instruction would help the jury understand the legal relationships between Njoku, as landlord, and White and Mann, as tenants.
Following further argument, the trial court indicated it was inclined to give the eviction instruction, stating: "At the moment, with the state of the evidence as it is, there has been a great deal of questioning about the rules of the house and violating the rules of the house. [¶] All—seemingly the only reasonable explanation for that is that Ms. Njoku was justified in doing what she did or in attempting to evict Jasmine Mann. I don't know what other purpose there would be for that. [¶] . . . . And then again, there was a great deal of questioning about what rules existed and who was violating the rules and so on. And that was from multiple witnesses. [¶] There was also testimony so far that Mr. White was indicating you can't kick someone out without a three-day notice and so on and so forth. [¶] So I think it's an obvious question that the jury may have." The trial court agreed to consider a pinpoint instruction clarifying that Njoku was not being charged with violating landlord/tenant laws.
Njoku's counsel prepared a proposed pinpoint instruction. A modified version of the pinpoint instruction was included in the trial court's final instruction to the jury, which read as follows:
"A tenant cannot be evicted without receiving at least:
"1. A 3-day notice to pay or quit, a 3-day notice to perform covenant or quit, a 3-day absolute quit notice, or a 30-day or 60-day notice to terminate tenancy;
"AND
"2. A summons and complaint;
"AND
"3. A 5-day notice of sheriff's right to remove the occupant(s).
"The defendants are not charged with violating any law governing landlord/tenant matters, and you are not being asked to make any determinations concerning the lawfulness of Jasmine Mann's or Edward White's eviction."
The jury was also instructed with CALCRIM No. 571 on voluntary manslaughter as a lesser included offense of murder based on the theory of imperfect self-defense. CALCRIM No. 571 provides, in pertinent part: "Imperfect self-defense does not apply when the defendant through his or her own wrongful conduct has created circumstances that justify his or her adversary's use of force." As we shall discuss, Roberts contends the eviction instruction may have led jurors to believe that an unlawful eviction could constitute the type of "wrongful conduct" that would foreclose an imperfect defense claim under CALCRIM No. 571.
"An instance of imperfect self-defense occurs when a defendant acts in the actual but unreasonable belief that he or she is in imminent danger of great bodily injury or death. [Citation.] Imperfect self-defense differs from complete self-defense, which requires not only an honest but also a reasonable belief of the need to defend oneself. [Citation.] It is well established that imperfect self-defense is not an affirmative defense. [Citation.] It is instead a shorthand way of describing one form of voluntary manslaughter." (People v. Simon (2016) 1 Cal.5th 98, 132.)
During closing argument, the prosecutor urged the jury to view the evidence from the perspective of the landlord/tenant relationship. According to the prosecutor, the evidence showed "how three people went over to forcibly and illegally evict two tenants, and how one of those tenants got stabbed to death." The prosecutor directed the jury's attention to the eviction instruction, stating, "You're gonna get this instruction. It just tells you what the law is. We're not doing torts here. This is not a civil suit about a landlord's wrongful eviction. It's simply there to give you what the law is and how that process is something we have in our society, because we recognize as a society that these are emotional issues." The prosecutor explained that a landlord effecting a lawful eviction must follow a legal process that begins with notice and ends with a formal eviction by the sheriff. By contrast, the prosecutor argued, "This train that's put in motion by defendant Njoku is going in one direction, and it's moving quickly, okay, and it's gonna end with somebody getting hurt."
Defense counsel offered another view of the eviction issue. Roberts' trial counsel argued that the prosecutor's characterization of the case as an eviction gone wrong was nothing more than a "sympathy play." According to Roberts' trial counsel, the evidence showed that Roberts, Njoku and Simon "were together to celebrate a birthday, not to engage in some eviction process." Later, referring to imperfect self-defense, Roberts' trial counsel argued, "Now, the District Attorney may try and salvage things by saying Mr. Roberts was the aggressor or he set in motion—that he can't avail himself of this defense because the chain of events that occurred out there [was] set in motion by Ms. Njoku or Mr. Roberts. [¶] Folks, this wasn't about an eviction. If Edward White is tuning him up, if he's beating his ass, if he's throwing Ms. Simon around, that goes to Monterio Roberts' belief."
Njoku's counsel also focused on landlord/tenant issues, noting, "I[,] in my opening statement and throughout my questioning in the evidence brought up this whole issue about landlord/tenant room and board, and I did that because it was important for you to have an understanding in determining the facts, how and why these folks were at that home." With respect to the eviction instruction, Njoku's counsel explained, "The judge read you the instruction about the eviction process. She told you, though, that the defendants are not charged with violating any law governing landlord/tenant matters, and you are not being asked to make any determination . . . any determinations concerning the lawfulness of Jasmine Mann's or Edward White's evictions."
2. Analysis
Roberts contends the trial court erred in giving the eviction instruction. He argues the attempted evictions of Mann and White had no bearing on any material issue, but the instruction created a misleading impression to the contrary. He theorizes that jurors may have understood the eviction instruction, in combination with CALCRIM No. 571, to mean that an unlawful eviction would foreclose a claim of imperfect self-defense. He further observes that the instruction may have played on jurors' sympathies. The People respond that the eviction instruction was relevant to the issues raised by the evidence and would "help the jury understand the dynamics between the parties and the case before it." We assume without deciding that the trial court erred, but find no prejudice.
"The trial court has the duty to instruct on general principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty 'to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.' " (People v. Saddler (1979) 24 Cal.3d 671, 681.) Here, the lawfulness of the attempted evictions of Mann and White was largely beside the point. Whether or not Njoku or Roberts complied with the requirements for a lawful eviction was immaterial to their guilt or innocence, as the trial court and counsel all acknowledged. As such, the eviction instruction appears to us to have been unnecessary. We assume without deciding that the trial court erred in giving the instruction.
Where a trial court gives a legally correct, but inapplicable, instruction, the error " 'is usually harmless, having little or no effect "other than to add to the bulk of the charge." ' " (People v. Lee (1990) 219 Cal.App.3d 829, 841.) Use of an inapplicable or "abstract" instruction is generally " ' "only a technical error which does not constitute grounds for reversal." ' " (People v. Cross (2008) 45 Cal.4th 58, 67, quoting People v. Rowland (1992) 4 Cal.4th 238, 282.) "There is ground for concern only when an abstract or irrelevant instruction creates a substantial risk of misleading the jury to the defendant's prejudice." (People v. Rollo (1977) 20 Cal.3d 109, 123.) We review such an error under the reasonable probability standard of Watson, that is, whether it is reasonably probable Roberts or Njoku would have achieved a more favorable result in the absence of the error. (People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130; People v. Debose (2014) 59 Cal.4th 177, 205-206.) Reasonable probability in this context does not mean more likely than not, but merely a reasonable chance, greater than an abstract possibility. (People v. Wilkins (2013) 56 Cal.4th 333, 351.) "In determining whether there was prejudice, the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict." (Guiton, supra, at p. 1130.)
We have reviewed the entire record and conclude that the eviction instruction posed no substantial risk of misleading the jury. The instruction made clear that, "The defendants are not charged with violating any law governing landlord/tenant matters, and you are not being asked to make any determinations concerning the lawfulness of Jasmine Mann's or Edward White's eviction." (Italics added.) The prosecutor and Njoku's trial counsel each specifically called attention to the instruction, reiterating that the jury was under no obligation to consider the lawfulness of any attempted eviction. And Roberts' trial counsel specifically addressed the absence of any legal connection between the unlawfulness of any eviction and Roberts' claim of imperfect self-defense, stating, "Folks, this wasn't about an eviction." Thus, the eviction instruction and the arguments of counsel made clear that the unlawfulness of any attempted eviction was a mere background consideration, unnecessary to the determination of Roberts' or Njoku's guilt or innocence.
On the record before us, where the eviction instruction was clearly identified as superfluous by the trial court and counsel, we perceive no substantial risk that the jury would have relied on the instruction in rejecting Roberts' claim of imperfect self-defense. If we assume, as we must, that the jurors were intelligent persons, capable of understanding and correlating the given instructions (People v. Posey (2004) 32 Cal.4th 193, 218), then we must conclude that they read and understood the eviction instruction, and recognized that the unlawfulness of any attempted eviction was immaterial to their evaluation of Roberts' claim of imperfect self-defense. Reading the record as a whole, we see no obvious conflict between the eviction instruction and CALCRIM No. 571, and have no reason to believe that jurors would have ignored the clear language of the former in order to arrive at an oblique and unnecessary interpretation of the latter.
As for Roberts' contention that the instruction was "partisan" to the prosecution's framing of the issues, we disagree. The prosecution and defense both emphasized aspects of the landlord/tenant relationship in closing argument. Although the prosecutor encouraged the jury to view the case as an eviction gone wrong, it was obvious that the prosecutor was concerned, not with Njoku's failure to comply with the unlawful detainer statutes, but with Roberts' and Njoku's willingness to use force. No reasonable juror would have believed that Njoku's failure to give notice or serve Mann with a summons and complaint were material to Roberts' claim of imperfect self-defense, particularly inasmuch as the eviction instruction made clear they were not. Rather, the jury would have understood the eviction instruction in the context of the prosecutor's larger argument that landlords attempting to recover possession of leased property must follow appropriate legal procedures, rather than rely on forcible self-help. Nothing in the record leads us to believe that the jury would have been confused or misled by the instruction.
In any event, there is no reasonable probability the error affected the outcome of the trial. (People v. Guiton, supra, 4 Cal.4th at pp. 1129-1130.) Contrary to Roberts' contention, this was not a close case. The evidence against Roberts and Njoku was exceedingly strong, if not overwhelming. There was ample evidence that Roberts and Njoku were aggressive and confrontational with Mann and White on the day of the stabbing. Although there was conflicting evidence as to which party was the primary aggressor during the fatal encounter in the northeast living room, the jury could reasonably accept Mann's version of events, which was corroborated, in important respects, by Figueroa's testimony and the various 911 recordings. By the same token, the jury could reasonably reject Roberts' version of events, which was premised on the notion that White lost control upon discovering his son had been locked outside. Although White was undeniably upset about his son, nothing in the record leads inexorably to the conclusion that he started the fight. To the contrary, the 911 recording supports an inference that Roberts and Njoku were the primary aggressors. The jury could also reasonably reject Roberts' claim that he acted in defense of Simon. In any case, it is not reasonably probable that the jury, having rejected any reasonable doubt as to whether Roberts lunged at White with an open knife, would have reached a different verdict had the eviction instruction not been given. We therefore reject the claim of error. F. Pinpoint Instruction
Next, Roberts contends the trial court should have given a pinpoint instruction clarifying that imperfect self-defense "is available when the victim's use of force against the defendant is unlawful, even when the defendant set in motion the chain of events that led the victim to attack the defendant." (People v. Vasquez (2006) 136 Cal.App.4th 1176, 1179-1180 (Vasquez).) We conclude that no such clarification was necessary.
1. Additional Background
As previously discussed, the trial court instructed the jury with CALCRIM No. 571 on the reduction of murder to voluntary manslaughter based on imperfect self-defense or imperfect defense of another. As noted, CALCRIM No. 571 provides, in pertinent part, "Imperfect self-defense does not apply when the defendant, through his or her own wrongful conduct, has created circumstances that justify his or her adversary's use of force."
Roberts' trial counsel requested a pinpoint instruction based on Vasquez. The pinpoint instruction would have qualified the above-referenced language as follows: "But the defense is available when the victim's use of force against the defendant is unlawful, even when [the] defendant set in motion the chain of events that led the victim to attack the defendant." The trial court denied the request, stating "the instructions that we're giving already as far as involuntary manslaughter and the eviction instruction that we're giving and the mutual combat instruction all adequately covers what needs to be covered in that regard. [¶] So I'm not going to do any additional language, because it appears redundant to me."
2. Analysis
"Upon proper request, a defendant has a right to an instruction pinpointing the theory of defense . . . if the theory proffered by the defendant is supported by substantial evidence" (People v. Randolph (1993) 20 Cal.App.4th 1836, 1841), the instruction is a correct statement of law (People v. Bivert (2011) 52 Cal.4th 96, 120), and the proposed instruction does not simply highlight specific evidence the defendant wishes the jury to consider (People v. Wright (1988) 45 Cal.3d 1126, 1137.)
The trial court may properly refuse an instruction highlighting a defense theory if it is "duplicative or potentially confusing." (People v. Gonzales (2012) 54 Cal.4th 1234, 1276.) "[W]here standard instructions fully and adequately advise the jury upon a particular issue, a pinpoint instruction on that point is properly refused." (People v. Canizalez (2011) 197 Cal.App.4th 832, 857; see e.g., Gonzales, supra, at p. 1276 [trial court did not err in refusing to instruct jury that " 'a person is not guilty of murder simply because he or she failed to stop someone else from committing a murder'" where topic was covered by standard aiding and abetting and child endangerment instruction and "giving two different instructions on the same topics would risk confusing the jury"].) Put another way, "[t]here is no error in a trial court's failing or refusing to instruct on one matter, unless the remaining instructions, considered as a whole, fail to cover the material issues raised at trial." (People v. Dieguez (2001) 89 Cal.App.4th 266, 277.) The failure to give an instruction on even an essential issue "may be cured if the essential material is covered by other correct instructions properly given." (Ibid.)
The proposed pinpoint instruction was based on Vasquez, a case in which the trial court refused to give any instruction on imperfect self-defense. (Vasquez, supra, 136 Cal.App.4th at p. 1178.) There, defendant Vasquez asked his cousin, Arechiga, to meet him and some friends in an alley. (Ibid.) Upon arriving, Vasquez accused Arechiga of raping another relative years before. (Ibid.) Arechiga lunged at Vasquez, who was confined to a wheelchair, and began to choke him. (Ibid.) Vasquez pulled out a gun and shot Arechiga. (Ibid.) Vasquez requested an imperfect-self defense instruction in the ensuing murder trial. (Ibid.) The trial court refused the instruction, stating that Vasquez had "created the need to defend himself by luring Arechiga to the alley to confront him." (Id. at p. 1179.) The court of appeal reversed, concluding that the trial court's view of imperfect self-defense was too narrow. (Ibid.) The court explained, "Imperfect self-defense does not apply if a defendant's conduct creates circumstances where the victim is legally justified in resorting to self-defense against the defendant. [Citation.] But the defense is available when the victim's use of force against the defendant is unlawful, even when the defendant set in motion the chain of events that led the victim to attack the defendant." (Id. at pp. 1179-1180.)
Here, unlike Vasquez, the jury was fully instructed on the theory of voluntary manslaughter based on imperfect self-defense. Roberts does not challenge CALCRIM No. 571 as an accurate statement of the law. Instead, he argues that the requested pinpoint instruction offered "an important clarification going to the crux of the defense of imperfect self-defense." But the proffered "clarification" was implicit in CALCRIM No. 571. By informing the jury that the victim's justified use of force would foreclose an imperfect self-defense claim, CALCRIM No. 571 adequately conveyed the converse, i.e., that the victim's unjustified use of force would not foreclose an imperfect self-defense claim. Likewise, by informing the jury that imperfect self-defense does not apply when the defendant's wrongful conduct creates circumstances leading to the victim's justified use of force, CALCRIM No. 571 adequately conveyed that the defense would be available if the defendant, without acting wrongfully, set in motion the chain of events that led to the victim's unjustified use of force. Thus, CALCRIM No. 571 adequately conveyed that imperfect self-defense was available as a defense, even if Roberts set in motion a chain of events that led to White's unjustified use of force.
Roberts argues that the prosecutor's focus on the theme of forcible eviction created a need for additional clarification, which the pinpoint instruction would have supplied. Specifically, Roberts argues that the pinpoint instruction would have clarified that, "Even if Njoku and [Roberts] were morally or even legally wrong in trying to evict Mann, White did not have legal justification for assaulting the defendants, and as long as White was not legally justified in using force, [Roberts] retained a right to self-defense and imperfect self-defense." The trial court did not abuse its discretion in declining to give the requested pinpoint instruction. Again, the obvious significance of the prosecutor's eviction argument was not that Njoku or Roberts were "morally or even legally wrong in trying to evict Mann," but that they resorted to forcible self-help, with predictably tragic results. The instructions as a whole made clear that Roberts could defend himself against an unjustified use of force by White, even if Roberts was the initial aggressor in the fistfight between them. (See, e.g., People v. Randle (2005) 35 Cal.4th 987, 992-993 [car burglary defendant entitled to use deadly force in imperfect defense of another against burglary victim administering deadly street justice], overruled on other grounds in People v. Chun (2009) 45 Cal.4th 1172, 1201.) We therefore conclude that the trial court acted within its discretion in declining to give the proposed pinpoint instruction.
Even assuming the trial court erred, we discern no prejudice. The erroneous failure to give a proposed pinpoint instruction is reviewed for prejudice under the Watson standard, and reversal is required only if it is reasonably probable that the jury would have come to a different conclusion had the instruction been given. (People v. Trinh (2014) 59 Cal.4th 216, 233, 235.) No such probability exists here. As we have explained, CALCRIM No. 571 made clear that imperfect self-defense was available in the event that White used unjustified force. Referring to CALCRIM No. 571, Roberts' trial counsel also argued the defense was available, whether or not the chain of events was set in motion by Njoku or Roberts, "If Edward White is tuning [Roberts] up, if he's beating his ass, if he's throwing Ms. Simon around . . . ." And the prosecutor said nothing to suggest that imperfect self-defense would not be available in the event that White was found to have used unjustified force. On the record before us, even assuming error, Roberts was not prejudiced as nothing prevented the jury from adopting the defense theory, which was adequately conveyed by the instructions and covered by counsel's argument. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1144-1145 [if failure to give pinpoint instruction was error, it was harmless because nothing in the instructions given precluded jury from adopting defense theory covered in counsel's argument]; People v. Franco (2009) 180 Cal.App.4th 713, 720 [when assessing claim of instructional error, appellate court considers the record as a whole, including arguments of counsel].) G.
Non-Homicide Self Defense Instruction (CALCRIM No. 3470)
Roberts next argues the trial court erred by not giving an instruction sua sponte on non-homicide self-defense (CALCRIM No. 3470). The People respond that no such instruction was warranted because the charged offense was homicide, and the jury was appropriately instructed with CALCRIM No. 505 (Justifiable Homicide: Self Defense or Defense of Another). We need not decide whether the trial court overlooked a sua sponte duty to instruct the jury with CALCRIM No. 3470, as we conclude the error, if any, was harmless.
1. Additional Background
The trial court instructed the jury with CALCRIM No. 505 (Justifiable Homicide: Self-Defense or Defense of Another) in pertinent part as follows:
"The defendant is not guilty of murder or manslaughter if he or she was justified in killing someone in self-defense or defense of another. The defendant acted in lawful self-defense or defense of another if:
"1. The defendant reasonably believed that he or she or someone else was in imminent danger of being killed or suffering great bodily injury;
"2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; and
"3. The defendant used no more force than was reasonably necessary to defend against that danger.
"[¶] . . . [¶]
"When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant, and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed.
"A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary[,] to pursue an assailant until the danger of death or great bodily injury has passed. This is so even if safety could have been achieved by retreating.
"Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
"The People have the burden of proving beyond a reasonable doubt that the killing was not justified. If the People have not met this burden, you must find the defendants not guilty of murder or manslaughter." (Italics added.)
The jury also instructed with CALCRIM No. 3471 (Right to Self-Defense: Mutual Combat or Initial Aggressor) as follows:
"A person who engages in mutual combat or who starts a fight has a right to self-defense only if:
"1. He or she actually and in good faith tried to stop fighting;
"2. He or she indicated, by word or by conduct, to his or her opponent in a way that a reasonable person would understand that he or she wanted to stop fighting and that he or she had stopped fighting; and
"3. He or she gave his or her opponent a chance to stop fighting.
"If a defendant meets these requirements, he or she then had the right to self-defense if the opponent continues to fight.
"However, if the defendants used only non-deadly force and the opponent responded with such sudden and deadly force that a defendant could not withdraw from the fight, then a defendant had the right to defend himself or herself with deadly force and was not required stop—try to stop fighting, communicate the desire to stop to 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.)
Neither Roberts nor any other defendant requested CALCRIM No. 3470 (Right to Self-Defense or Defense of Another (Non-Homicide)).
CALCRIM No. 3470, which was not given by the trial court, provides in pertinent part:
"The defendant acted in lawful [self-defense] . . . if:
"1. The defendant reasonably believed that [he] was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully];
"2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger;
"AND
"3. The defendant used no more force than was reasonably necessary to defend against that danger.
"[¶] . . .[¶]
"When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed.
"[¶] . . .[¶]
"The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful [self-defense]. If the People have not met this burden, you must find the defendant not guilty of <insert crime(s) charged>."
2. Analysis
" 'It is settled that in criminal cases, even when not requested, the court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the evidence adduced before the court which are necessary for the jury's proper consideration of the case. [Citations.] At a minimum, it is the court's duty to ensure the jury is adequately instructed on the law governing all elements of the case submitted to it to the extent necessary for a proper determination in conformity with the applicable law.' " (People v. Haney (1977) 75 Cal.App.3d 308, 312.)
Here, the trial court instructed the jury with CALCRIM Nos. 505 and 3471 essentially verbatim. (See Cal. Rules of Court, rule 2.1050(e) [use of Judicial Council jury instructions "strongly encouraged" and "recommended"].) "The California jury instructions approved by the Judicial Council are the official instructions for use in the state of California. The goal of these instructions is to improve the quality of jury decision making by providing standardized instructions that accurately state the law in a way that is understandable to the average juror." (Cal. Rules of Court, rule 2.1050(a).) Roberts does not argue the instructions given were incorrect. Rather, he implies they were incomplete.
Roberts suggests the physical altercation should be viewed as having taken place in three discrete segments: (1) the initial fistfight, (2) the biting, and (3) the stabbing. He argues that the jury needed to decide, as a preliminary matter, whether Roberts acted in self-defense during the initial fistfight before they could reach the ultimate issue whether Roberts acted in self-defense during the stabbing. He claims the instructions given failed to guide the jury in making this purportedly "crucial" determination.
It is not clear to us why the jury needed to separately consider whether Roberts acted in self-defense during the initial fistfight. As the People observe, Roberts was charged with a single count of murder. As such, the jury was required to determine whether Roberts acted in self-defense in committing a homicide. The jury had no need to consider whether Roberts acted in self-defense in committing a nonhomicide offense as no such offense was charged. On the face of it, CALCRIM No. 505 (the standard self-defense instruction for homicide cases) was appropriately given, and CALCRIM No. 3470 (the standard self-defense instruction for nonhomicide cases) was unnecessary. The trial court had no sua sponte duty to give an unnecessary instruction. (People v. Owen (1991) 226 Cal.App.3d 996, 1004-1005 ["the court is required to instruct sua sponte only on general principles which are necessary for the jury's understanding of the case. It need not instruct on specific points or special theories which might be applicable to a particular case, absent a request for such an instruction"].)
It is true, as Roberts observes, that the bench note to CALCRIM No. 3471 states, "Give CALCRIM No. 3470, Right to Self-Defense or Defense of Another (Non-Homicide), together with this instruction." However, the bench note also states, "If the defendant was the initial aggressor and is charged with homicide, always give CALCRIM No. 505, Justifiable Homicide: Self Defense or Defense of Another, in conjunction with this instruction." (Ibid.) Thus, the bench note appears to recognize that CALCRIM No. 505 is the appropriate instruction for homicide matters.
Roberts suggests the instructions were incomplete, in that they failed to instruct the jury "on how to adduce whether [Roberts] was acting lawfully when he initially engaged in a physical altercation with White." Again, we do not understand why the jury would have needed to make such a determination. However, to the extent Roberts believed the instructions were incomplete or required elaboration, it was his obligation to request additional or clarifying instructions. (People v. Dennis (1998) 17 Cal.4th 468, 514; People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012 [" 'Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language' "].) Roberts made no such request here. Accordingly, the claim of instructional error is forfeited.
Anticipating forfeiture, Roberts argues that his trial counsel rendered ineffective assistance by failing to request CALCRIM No. 3470. This argument is also unavailing.
To establish ineffective assistance of counsel, a defendant must show (1) defense counsel did not provide reasonably effective assistance in view of prevailing professional norms, and (2) defense counsel's deficient performance was prejudicial. (See People v. Oden (1987) 193 Cal.App.3d 1675, 1681, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688.) "It is . . . particularly difficult to establish ineffective assistance of counsel on direct appeal, where we are limited to evaluating the appellate record. If the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation." (People v. Scott (1997) 15 Cal.4th 1188, 1212.)
The record before us "does not illuminate the basis for the attorney's challenged acts or omissions . . . .' " (People v. Silvey (1997) 58 Cal.App.4th 1320, 1329.) Roberts' trial counsel was never asked to explain why he did not request CALCRIM No. 3470. And we cannot find that "there simply can be no satisfactory explanation" (People v. Scott, supra, 15 Cal.4th at p. 1212) for his failure to do so. As we have discussed, Roberts was not charged with any nonhomicide crime arising from the initial fistfight, and his trial counsel may well have believed that CALCRIM No. 505 was the more appropriate instruction. Roberts' trial counsel may have also believed that CALCRIM No. 3470 would unnecessarily confuse the jury, by requiring an unnatural parsing of the fatal altercation into artificial episodes. On the record before us, where CALCRIM No. 505 instructed the jury to "consider all the circumstances as they were known to and appeared to the defendant," we cannot say Roberts' trial counsel rendered ineffective assistance in failing to request CALCRIM No. 3470. H. Cumulative Error
Finally, Roberts argues that cumulative error requires reversal. "Under the cumulative error doctrine, the reviewing court must 'review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence.' " (People v. Williams (2009) 170 Cal.App.4th 587, 646.) For the reasons we have explained, none of the asserted errors, to the extent they were errors, deprived Roberts or Njoku of a fair trial. We therefore reject the claim of cumulative error.
III. DISPOSITION
The judgments are affirmed.
/S/_________
RENNER, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
DUARTE, J.