Opinion
D081563
09-26-2024
THE PEOPLE, Plaintiff and Respondent, v. JUAN C. ORTEGA, Defendant and Appellant.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, Christine Levingston Bergman, and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCN389730, Kelly C. Mok, Judge.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, Christine Levingston Bergman, and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
HUFFMAN, Acting P. J.
A jury convicted Juan C. Ortega of two counts of first degree murder (Pen. Code, § 187, subd. (a); counts 1-2), two counts of child endangerment likely to produce great bodily injury or death (§ 273a, subd. (a); counts 3-4), and arson of property (§ 451, subd. (d); count 5.) The jury also found it to be true that during the commission of the murders in counts 1 and 2, Ortega personally used a deadly and dangerous weapon (a knife) (§ 12022, subd. (b)(1)) and that in the commission of the murder in count 2, he personally discharged a firearm causing death (§ 12022.53, subd. (d)). The jury made a true finding on the lying in wait special circumstance allegation charged with count 1 (§ 190.2, subd. (a)(15)), and on the special circumstance with counts 1 and 2 alleging that Ortega was convicted of two counts of first degree murder (§ 190.2, subd. (a)(3)).
Statutory references are to the Penal Code unless otherwise specified.
The trial court sentenced Ortega to prison for two consecutive terms of life without the possibility of parole plus an indeterminate term of 26 years to life.
On appeal, Ortega argues the trial court prejudicially erred by instructing the jury with a modified version of CALCRIM No. 3475 on an occupant's right to use force in ejecting a trespasser. We disagree and affirm the judgment.
FACTUAL BACKGROUND
A. Prosecution Evidence
Ortega married Veronica O. in 2012, and they had two daughters. The couple separated in 2017, and Ortega moved out of their Escondido apartment.
In July 2018, Veronica's sister, Ana S., moved into the apartment with Veronica and her daughters. The girls were five and four years old at the time.
At 3:17 a.m. on August 9, 2018, a neighbor from a nearby apartment heard a woman scream and called 911. He looked out the window and saw a person wearing black pants and a black hoodie go in and out of Veronica's home twice, so he called 911 again at 3:32 a.m. Police officers responded to the wrong address.
At 4:17 a.m. the same morning, the fire department received a report of a vehicle fire at an intersection in a different part of Escondido. When firefighters arrived, they found a white sports utility vehicle (SUV) on fire. After extinguishing the flames, they looked through the back hatch and saw a body, later identified as Ana. Responding police officers found a container of lighter fluid and a container of denatured alcohol in the back of the SUV, a shirt draped over the body, several black latex gloves, Ana's purse, and Jolly Rancher candies. They determined that the vehicle was registered to Veronica and Ortega.
Based on the vehicle registration information, police officers went to Veronica's home at about 6:30 a.m. They found blood on the ground outside and what appeared to be drag marks. They also noticed that the screen had been removed from the window adjacent to the front door and laid against the house.
Upon entering the apartment, officers found Veronica on the living room floor covered with a blanket and surrounded by pools of blood. They discovered a bullet shell casing and a black rubber glove under her, and a cell phone was leaning on her arm. The officers found the girls asleep in one of the bedrooms and passed them through the bedroom window to other officers so they would not see their mother.
Veronica's autopsy revealed a four- to five-inch deep stab wound to her neck that sliced her right jugular vein, another three- to four-inch stab wound to her neck that impacted her spine, and five stab wounds to her chest. Some of the chest wounds were five to seven inches deep and had punctured her heart and left lung. She also had cuts on her forehead, face, and right hand, as well as scrapes and bruises on her head, arms, and legs.
The medical examiner explained that Ana had burn injuries covering most of her body. Her autopsy revealed a gunshot wound that pierced her heart and right lung as well as two three- to four-inch stab wounds in her chest that entered her right lung. The front of her neck had a slash wound that was over four inches long and nearly a half an inch deep. She also had cuts on her left hand and thumb.
Fingerprints taken from the front window of Veronica's apartment were consistent with Ortega's. Records from Veronica's cell phone showed a call to 911 at 3:31 a.m.
Officers arrested Ortega at work on the evening of August 9, 2018. He had a small scrape on his face, a scratch on his forehead, and some redness on his neck and head. In the car Ortega had been driving, they found his identification card, a black sweatshirt with a purple glove in the pocket that had a red stain on it, more purple gloves, a pair of unwashed women's underwear, a socket wrench with a red stain, and some Jolly Rancher candies.
Initially, Ortega denied knowing anything about Veronica's and Ana's deaths. However, later in the interrogation he confessed to killing both women. He said Ana pulled a knife on him, and Veronica jumped on his back.
During a call to his father from jail, Ortega admitted to stalking his wife.
B. Defense Evidence
Ortega testified on his own behalf. He explained that, in October 2017, he was upset about separating from Veronica and tried to kill himself by taking pills and slitting his own throat. After that, he moved out and eventually ended up living in a car that belonged to his father. He said he carried a pocketknife for his own protection and had investigated purchasing a gun (but had not bought one).
In addition to going to Veronica's home to pick up his daughters for weekend visits, Ortega explained that he also went there about three times a week while doing his "rounds." By this, he meant he would travel around the area of her apartment and make sure there were no sounds or break-ins. He also admitted he sometimes broke into Veronica's apartment when no one was home by reaching through the window and unlocking the door. He would take Veronica's dirty underwear because he "loved her scent" and then return later to trade in one pair for another.
On the night of the murders, he parked near a friend's house, put on his black sweatshirt, and walked for about an hour to a corner near Veronica's apartment. He left his cell phone in the car because he did not want anyone to know he was listening for sounds of Veronica having sex with another man or to be able to track his phone. Once he arrived, he stayed at the corner for a little over an hour before seeing Veronica come out to put something in her car, as he said she often did in the middle of the night. She saw him and said he was "being pathetic." As they argued, he followed her into the apartment. He was under the impression Veronica had invited him into the home because she did not tell him to leave.
After entering the apartment, Ortega said Ana came up behind him, held a knife to his neck, and told him to leave. She yelled to Veronica to get a gun. He pushed Ana's knife hand away and back to the right and surmises that is how her throat was slit. She did not scream or let go of the knife, so he used his right hand to continue holding her knife hand. He then felt a gun on his left temple and Veronica yelled, "stop." In response, he pushed Veronica's hand away and presumes she somehow shot Ana in the process. Despite having a gunshot wound to the chest and a slit throat, he said Ana kept standing and fighting.
Veronica then jumped on his back and all three of them fell to the floor. Veronica was impaled in the chest with the knife and landed on her back. Ortega then pulled the knife out of her chest. He said that even though he had the knife and both women were injured, he did not leave. He explained they remained a threat to him because Veronica was hitting him, and Ana was scratching his head.
While lying between the women, he was "thrashing back and forth" and ended up stabbing both women repeatedly. When they stopped attacking him, he got up and went outside. He then went back in, retrieved some black gloves from a dresser, and used them to pick up the knife and gun without leaving fingerprints. He put them in Veronica's SUV. He then retrieved lighter fluid and some purple gloves from the kitchen. He did not call the police because he did not think they would believe him.
As he was pouring an accelerant into the back of the SUV, Ana stumbled out, collapsed on the ground, and died, so he put her in the trunk. Ortega said Ana must have locked the door on her way out, and he had to open the door through the window. He went back in, covered Veronica with a quilt, and locked his daughters' bedroom from the inside. He dialed 911 from Veronica's phone and put it near her before leaving. As he drove away, he tossed the gun and knife in a trash can. Forgetting Ana was in the trunk, he lit the car on fire in a remote area, jogged back to his car, and drove back to the rest stop where he often slept.
The next day, he went to a scheduled counseling session at the court. When Veronica did not appear, he texted her "thanks for wasting my time." He then went to work, where he subsequently was told about the killings. As he headed out of the building, police officers arrested him.
At trial, Ortega called his high school coach to testify that he was on the cross-country and track teams and a classmate to explain that he had always enjoyed running. One of Ana's coworkers testified that Ana had two stalkers and was trying to get a restraining order against one of them. The coworker said Ana was "tough" and had taken self-defense training.
DISCUSSION
At trial, the court instructed the jury with a modified version of CALCRIM No. 3475 regarding an occupant's right to use force in ejecting a trespasser. Ortega contends this instruction was inapplicable and confusing and relieved the prosecution of its burden of proving he did not act in selfdefense. Accordingly, he argues the trial court erred in giving it and the error was prejudicial because it violated his federal constitutional rights to due process and a jury trial, in addition to his right to present a defense.
A. Additional Facts
The prosecution requested that the court instruct with CALCRIM No. 3475. Noting that the instruction was "really for when the defendant is the owner occupant[,]" the court suggested a modification. Defense counsel expressed his view that the instruction did not apply to the situation at hand and requested the court not give it. The court ultimately stated it would read the case listed in the bench notes before deciding.
Subsequently, the court informed counsel that it had reviewed People v. Watie (2002) 100 Cal.App.4th 866 (Watie), People v. Hardin (2000) 85 Cal.App.4th 625 (Hardin), and People v. Gleghorn (1987) 193 Cal.App.3d 196 (Gleghorn) and intended to modify CALCRIM No. 3475 with language from related instructions CALJIC Nos. 5.40 and 5.42. Defense counsel objected based on "constitutional protections."
The court instructed the jury using the modified CALCRIM No. 3475 instruction as follows:
"The lawful occupant of a home may request that a trespasser leave the home. If the trespasser does not leave within a reasonable time and it would appear to a reasonable person that the trespasser poses a threat to the home or the occupants, the lawful occupant may use reasonable force that [sic] make the trespasser leave.
"Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to make the trespasser leave.
"If the trespasser resists, the lawful occupant may increase the amount of force he or she uses in proportion to the force used by the trespasser and the threat the trespasser poses to the home or occupants.
"When deciding whether the lawful occupant used reasonable force, consider all the circumstances as they were known and appeared to the lawful occupant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If a lawful occupant[ ]'s beliefs were reasonable, the danger does not to have actually existed.
"A person may defend his or her home against anyone who manifestly intends or endeavors in a violent manner to enter the home and who appears to intend violence to any person in the home.
"The lawful occupant is not bound to retreat even though a retreat might safely be made.
"The lawful occupant may resist force with force increasing it in proportion to the intruder's persistence and violence if the circumstances are apparent to the lawful occupant of the property are such as would excite similar fears and a similar belief in a reasonable person."
The court also gave instructions on self-defense (CALCRIM No. 505), voluntary manslaughter based on imperfect self-defense (CALCRIM No. 571), the right to self-defense in a mutual combat situation (CALCRIM No. 3471), and the fact that a claim of self-defense may not be contrived (CALCRIM No. 3472). Additionally, the court provided a separate instruction clarifying that the right to use of force in self-defense continues only as long as the danger exists or reasonably appears to exist (CALCRIM No. 3474).
B. Legal Principles
"In criminal cases, even absent a request, a trial court must instruct on the general principles of law relevant to the issues the evidence raises." (People v. Taylor (2010) 48 Cal.4th 574, 623.) Additional instructions requested by the parties must be given only if they are supported by substantial evidence. (People v. Enraca (2012) 53 Cal.4th 735, 760 (Enraca); People v. Ross (2007) 155 Cal.App.4th 1033, 1049 (Ross).) "It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case." (People v. Guiton (1993) 4 Cal.4th 1116, 1129; Ross, at p. 1050.) As a general rule, a trial court also may refuse to give a requested instruction if it incorrectly recites the law, is duplicative or argumentative, or might confuse the jury. (People v. Peoples (2016) 62 Cal.4th 718, 768.)
We review a claim of instructional error de novo. (People v. Mitchell (2019) 7 Cal.5th 561, 579.) In so doing, "we view the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner." (People v. Houston (2012) 54 Cal.4th 1186, 1229 (Houston).)
C. Analysis
1. Applicability of the Challenged Instruction
Ortega's initial objection to the trial court instructing with CALCRIM No. 3475 is that the instruction had no bearing on the alleged charges. He points out that CALCRIM No. 3475 focuses solely on whether the occupants-in this case Veronica and Ana-had a right to use force. The instruction provided that the reasonableness of their use of force should be judged based on "all the circumstances as they were known and appeared to . . . the lawful occupant" and on "what a reasonable person in a similar situation with similar knowledge would have believed." (CALCRIM No. 3475.) However, because they were not defendants and Ortega was not an occupant, he contends the reasonableness of Ana's or Veronica's use of force, as judged from their perspective, was irrelevant to determining whether his use of force in self-defense was lawful. In other words, the lawfulness of his use of force depended only on how the situation would reasonably have appeared to him or to a reasonable person in his position.
We disagree the instruction was irrelevant. The instruction was applicable because it clarified the imperfect self-defense instruction. Unless they are argumentative," '[l]egally correct and factually warranted pinpoint instructions designed to elaborate and clarify other instructions should be delivered upon request.'" (People v. Woods (2015) 241 Cal.App.4th 461, 488.) Relevant here, "It is well established that the ordinary self-defense doctrine-applicable when a defendant reasonably believes that his safety is endangered-may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary's attack or pursuit is legally justified." (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1 (Christian S.)). In this case, the jury was instructed with CALCRIM No. 571 that "Imperfect self-defense does not apply when the defendant, through his own wrongful conduct, has created circumstances that justify his adversary's use of force." Thus, CALCRIM No. 3475 provided that one circumstance that would legally justify a use of force by Ana or Veronica was trespass into their home in a threatening manner.
Although Ortega maintains he did not believe he was trespassing, the prosecution requested the instruction in view of the very different factual scenario it proffered. The prosecutor argued Ortega broke in through the window while Veronica and Ana were sleeping. She explained that reasonable inferences from the evidence indicated Ortega attacked Veronica, who was sleeping on the couch, and that Ana heard the commotion and came out from a bedroom to try to help her sister. Under this view of events, the pinpoint instruction helps clarify that, although he used to live in the apartment, because Ortega was no longer an "occupant," he was trespassing. Because he was also attacking Veronica, the jury could conclude that a reasonable person in Ana's position would view him as a threat. Thus, in this scenario, his conduct was wrongful and triggered the rule that imperfect self-defense does not apply when the defendant's wrongful conduct created the circumstances justifying his adversary's use of force.
The prosecution supported its request with substantial evidence. (Enraca, supra, 53 Cal.4th at p. 760; Ross, supra, 155 Cal.App.4th at p. 1049.) "To be 'substantial,' evidence must be sufficient to deserve the jury's consideration." (People v. Powell (2018) 6 Cal.5th 136, 164.) It is "evidence that a reasonable jury could find persuasive." (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.) Here, the prosecution presented evidence that Ortega's fingerprints were on the window where the screen had been removed, a white pillow on the couch contained bloodstains, the two children slept on the bed in one of the two bedrooms, and Veronica was found next to the couch covered with a comforter. Reasonable inferences from this evidence suggest Veronica slept on the couch because there was no room for her on the bed with her daughters and because Ana used the other room, and that Ortega attacked her while she was still lying on the couch pillow. The prosecution also provided evidence that the attack occurred just after 3:00 a.m. when the sisters likely would be sleeping. A reasonable jury could be persuaded on this evidence that Ortega broke in and attacked the women in their sleep and, thus, was both a trespasser and a threat. Accordingly, we conclude the instruction was relevant and supported by substantial evidence.
2. Whether the Challenged Instruction was Confusing or Relieved the Prosecution of Proving Ortega Did Not Act in Self-Defense
Ortega also contends the court erred by giving CALCRIM No. 3475 because it injected confusion into the instructions as a whole. He posits that the jurors would not have known how to reconcile the given instruction on an occupant's right to use force against a trespasser with the other instructions on the general requirements for perfect and imperfect self-defense. As a result of this confusion, he argues the instruction created a risk that the jurors may have convicted him even if they did not actually unanimously find that the absence of self-defense had been proven.
The People submit that Ortega forfeited these contentions by not raising them below.
We agree Ortega forfeited this argument. Although Ortega objected and requested that the court not instruct with CALCRIM No. 3475, he did so solely on the grounds that it did not apply and that offering the instruction would violate his "constitutional protections." He did not provide the lower court an opportunity to resolve the issue of whether CALCRIM No. 3475 would confuse the jury and potentially impact their understanding of the prosecution's burden to prove the absence of self-defense. Generally, when a defendant contends the interplay between instructions "created a conflict that could have confused the jury, his failure to seek 'amplification or explanation' of the instruction precludes relief on appeal." (People v. Moon (2005) 37 Cal.4th 1, 29.) The purpose of the forfeiture doctrine is "to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided" (People v. Saunders (1993) 5 Cal.4th 580, 590), and the potential for juror confusion certainly is the type of error the trial court could have sought to remedy had the concern been raised.
Ortega contends we should nonetheless address the argument on the merits, despite his forfeiture, because an instruction that potentially impacts a jury's understanding of an element of a crime (in this case, the requirement that the prosecution prove that Ortega was not acting in self-defense) affects the defendant's substantial rights and, therefore, is cognizable on appeal. Although it is not clear Ortega's substantial rights are implicated in this situation, we nonetheless exercise our discretion to review the forfeited claim. (See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.)
Ortega recites numerous questions he contends were raised by the court's offering of CALCRIM No. 3475. For example, he maintains "[t]he instruction did [not] explain whether or in what circumstances a finding that the occupant's use of force was reasonable would preclude a trespasser from using his own reasonable force in self-defense, or what would [have] had to be proven for that to be the case." This argument neglects to consider that we view the challenged instruction in the context of the instructions and trial record as a whole. (See Houston, supra, 54 Cal.4th at p. 1229.) In the instant case, the instructions on self-defense and imperfect self-defense (CALCRIM Nos. 505, 571, 3471, and 3472) defined when the jury could appropriately find Ortega acted in self-defense. As Ortega highlights, CALCRIM No. 3475 is analyzed from the perspective of the occupant while the self-defense instructions directed the jury to consider what Ortega believed. Thus, the jury would engage in two separate evaluations of what was and was not reasonable force from two different perspectives. One would not negate the other. "We 'credit jurors with intelligence and common sense' [citation] and presume they generally understand and follow instructions." (People v. McKinnon (2011) 52 Cal.4th 610, 670.) Nothing about the facts of this case indicate the jury was not up to the task of applying the instructions applicable to their view of the facts.
The cases the lower court reviewed pertaining to this instructionGleghorn, Waite, and Hardin-address this question of whether an occupant's justified use of force negates a trespasser's right to claim perfect or imperfect self-defense. We do not find it necessary to conduct a lengthy analysis of these cases. Sufficed to say, to the extent any of these cases implied that when an occupant's use of force is appropriate under CALCRIM No. 3475 the trespasser automatically loses any claim to self-defense, we disagree. Rather, as discussed ante, we conclude this instruction functions to clarify when to apply the long-standing principal that a defendant who, through his own wrongful conduct created circumstances under which his adversary's attack or pursuit is legally justified, may not claim to have acted in self-defense. (See Christian S., supra, 7 Cal.4th at p. 773, fn. 1; CALCRIM No. 571.)
One of Ortega's primary concerns appears to be whether the instruction confused the jury under his view of the evidence. He submits that he reasonably believed he had been invited in by Veronica and, thus, was not trespassing. Meanwhile, Ana did not see him enter and may reasonably have thought he was a trespasser. In this situation, the jury could have viewed her use of force as reasonable under CALCRIM No. 3475 and also considered his initial use of force against her surprise attack as reasonable self-defense.
We do not see that this scenario creates confusion under the instructions given. CALCRIM No. 3475 does not by its express terms prohibit the jury from finding Ortega acted in self-defense even if Ana also acted reasonably (or acted on a reasonable, if mistaken belief that he was trespassing and a threat) in defending Veronica and her home. Likewise, under the self-defense instruction given (CALCRIM No. 505), Ortega reasonably could have believed that, with a knife to his throat, he was in imminent danger of great bodily injury and also reasonably believed the immediate use of deadly force was necessary. If that were the case, CALCRIM No. 505 made clear Ortega could use "no more force than was reasonably necessary to defend against that danger." The jurors could then analyze when Ortega's use of force ceased to be necessary entirely separately from any consideration under CALCRIM No. 3475 because they would evaluate necessity solely from his perspective. (Humphrey, supra, 13 Cal.4th at p. 1083.)
Therein lies the problem for Ortega. The instructions as a whole were not confusing, but they did allow the jury to conclude that once both women were mortally wounded and he was holding the knife, he was no longer in imminent danger and no longer had the right to use force to defend himself. In other words, even if they believed he initially acted in self-defense, they could find his actions of stabbing Veronica and Ana repeatedly while "thrashing back and forth" with the knife were not justified. That is because the standard for assessing the need to defend oneself is one of objective reasonableness where "a jury must consider what 'would appear to be necessary to a reasonable person in a similar situation and with similar knowledge . . . .'" (People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083 (Humphrey).)
We also do not share Ortega's concern that the instruction creates confusion as to which party bears the burden of proof. He posed the question, "Did the prosecution's burden of proving the absence of self-defense include the burden of proving that the occupant's use of force was reasonable, or did the defense have to prove that the occupant's use of force was unreasonable?" Here again, the burden remained on the prosecution. To the extent they sought to prove Ortega created the circumstances that justified the sisters' use of force to eject him, and thus was not entitled to claim imperfect selfdefense, they bore the burden of proving that the sisters' use of force was reasonable. The instructions read as a whole are not ambiguous on this point.
Ultimately, we are not persuaded that CALCRIM No. 3475 alone, much less when read in conjunction with the self-defense instructions, created uncertainty as to whether the prosecution retained the burden of proving that Ortega did not act in self-defense. Therefore, in viewing the challenged instruction in the context of the instructions and trial record as a whole, we conclude it is not reasonably likely the jury applied the instruction in manner that impermissibly interfered with the prosecution's burden of proving the absence of self-defense. (See Houston, supra, 54 Cal.4th at p. 1229.)
Furthermore, even if we were to find the court erred in offering the instruction, the error was not prejudicial. To the extent we were to determine the instruction was irrelevant, we observe that "[g]iving an instruction that is correct as to the law but irrelevant or inapplicable is error" but generally is"' "only a technical error which does not constitute ground for reversal." '" (People v. Cross (2008) 45 Cal.4th 58, 67.) "Such error does not implicate the defendant's constitutional rights and is subject to harmless error review under People v. Watson, [(1956) 46 Cal.2d 818,] 837." (People v. Falaniko (2016) 1 Cal.App.5th 1234, 1247.)
Under Watson, an error is harmless if it is "not reasonably probable that a result more favorable to defendant would have been reached in the absence of the error." (Watson, supra, 46 Cal.2d at p. 837.)
But, if we were to agree with Ortega that the instruction relieved the prosecution of its burden to prove the killings were not justified, the error would implicate his federal constitutional rights and be reviewed under the standard of set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman). (People v. Hendrix (2022) 13 Cal.5th 933, 942 (Hendrix).) Chapman provides that a federal constitutional error is prejudicial unless the reviewing court determines it was "harmless beyond a reasonable doubt." (Chapman, supra, 386 U.S. at p. 24.) "Chapman review applies not only to instructions that omit an element of the offense, but also to instructions that provide an incomplete or misleading description of what is necessary to establish an element of the offense." (People v. Schuller (2023) 15 Cal.5th 237, 257 (Schuller); see also Hendrix, supra, 13 Cal.5th at p. 942.)
Even applying this higher standard, we conclude any error was harmless beyond a reasonable doubt. The Chapman test in this context is exacting, "requiring reversal unless the reviewing court is persuaded that '"' "[n]o reasonable jury"' would have found in favor of the defendant on the missing fact, given the jury's actual verdict and the state of the evidence." '" (Schuller, supra, 15 Cal.5th at p. 261.) Here, in finding Ortega guilty of two counts of first degree murder and two counts of child endangerment likely to produce great bodily injury or death, the jury necessarily had to find he did not act in self-defense. Ortega argues CALCRIM No. 3475 may have confused the jury into believing that if it thought one of the sisters was acting lawfully in using reasonable force to eject him as a trespasser, then the prosecution no longer had to prove he did not act in self-defense. Absent this confusion, at least one juror may have concluded the prosecution had not met its burden.
On this record, overwhelming evidence demonstrates the jury was not confused as to the prosecution's burden. As in a typical case, the court fully instructed the jury and provided copies of the instructions in the deliberation room. However, unique circumstances in this case resulted in the court and both attorneys reinforcing the relevant instructions repeatedly at the end of the trial. During her closing, the prosecutor said, "In order for you to even consider self-defense, you will have to believe the defendant's statement." Defense counsel objected and stated, "They could return a not guilty without believing the defendant's statement." After the court directed the jury to the instructions, the prosecutor continued and specifically discussed the occupant's right to eject a trespasser under CALCRIM No. 3475. In so doing, she specifically referenced evidence from Ortega's perspective showing he did not act in self-defense after being told to leave and that he used unnecessary force after the danger had stopped. In other words, even in her argument, the prosecutor presupposed that the self-defense instructions could continue to apply even if the sisters lawfully exercised their right to use force to try to make him leave.
For example, the prosecutor stated, "So you have to consider what would a reasonable person do. When the danger has stopped, when you're told to leave, yet you continue on your mission to kill, did he use force that was unnecessary? And did he destroy evidence and flee? Because if you consider self-defense, if you really truly act in self-defense, are you really running from the scene because you're suspicious of the police? Do you really go to the extent of burning one of the bodies and taking them out of the house, taking lighter fluid and setting a car on fire along with gloves to conceal and destroy evidence? If you really did this killing in self-defense and you have a justified response, would you really not just call the police and tell them, oh, my God, this is what happened."
During a subsequent break, defense counsel moved for a mistrial based on prosecutorial misconduct. The court denied the motion but discussed issuing a curative instruction. The court then told the jury, in relevant part, "It is the People's burden to prove every crime, allegation, and special circumstance beyond a reasonable doubt. It is their burden to prove that the killing was not justified and not in self-defense."
Thereafter, defense counsel talked about CALCRIM No. 3475, arguing there was no evidence Ortega threatened either sister; that even if the sisters had a right to eject him, to defeat self-defense the prosecution had to prove he did not leave within a reasonable time; and that regardless, the prosecution had to prove beyond a reasonable doubt that Ortega was not acting in selfdefense. He then reiterated seven more times that the prosecution had not met its burden of proving the absence of self-defense beyond a reasonable doubt.
In her rebuttal argument, the prosecutor started by apologizing for misstating the law and then confirmed to the jury that "when we talked about an unlawful killing, I have to prove to you beyond a reasonable doubt that it was not done in self-defense." Later she listed the elements of selfdefense that the prosecution had to "disprove to [the jury] beyond a reasonable doubt." She concluded by stating that that the prosecution had proved beyond a reasonable doubt there was no self-defense.
These facts present a textbook example of how a curative instruction is supposed to function. The court addressed the objection and motion in a timely manner, such that it was able to issue a curative admonition before defense counsel's rebuttal argument. This provided defense counsel an opportunity to address the objection, the subsequent instruction, his client's view of the case, CALCRIM No. 3475, and the prosecution's burden. In falling on her sword and reiterating no less than three times her burden to prove the absence of self-defense, the prosecutor exceeded her obligation. Given the immense number of times the court and parties clarified both the appropriate application of CALCRIM No. 3475 and the prosecution's burden of proof on self-defense, we are persuaded that no reasonable juror would have been confused or found in favor of Ortega.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'ROURKE, J. CASTILLO, J.