Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura, Edward F. Brodie, Judge, No. 2006001544
Linda C. Rush, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer, Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
PERREN, J.
Michael R. Ortiz appeals the judgment entered after a jury convicted him of first degree murder. (Pen. Code, §§ 189/187, subd. (a).) The jury also found true the allegation that Ortiz personally used a dangerous and deadly weapon (a knife) in committing the offense. (Pen. Code, § 12022, subd. (b)(1).) In a bifurcated proceeding, Ortiz admitted serving a prior prison term. (Pen. Code, § 667.5, subd. (b).) The trial court sentenced him to a total state prison term of 25 years to life, plus 2 years for the weapon and prior prison term enhancements. Ortiz contends the court erred by (1) denying his motion for a new trial on the ground of juror misconduct; (2) admitting evidence of his tattoos; and (3) giving a special jury instruction that limited his claim of self-defense. We affirm.
STATEMENT OF FACTS
Prosecution
In late 2005, Anthony Casillas and Eddie Salomon lived in a condominium in Port Hueneme, where they sold heroin and methamphetamine. Both men were associated with the Barry Street gang. Salomon was also associated with other gangs, including the "SouthSide Chiques." Appellant was a member of the SouthSide Chiques. His moniker was "Weasel." He frequently visited the condominium along with fellow gang member Michael Orosco and their "homegirl" Dena Diaz, Casillas's ex-girlfriend.
Orosco testified for the prosecution and was subsequently placed in witness relocation.
Although Casillas and Diaz were no longer dating, they continued to argue and fight. Diaz told appellant and Orosco that Casillas had hit her. Orosco also knew that Harold Marshall, a SouthSide Chiques "shot-caller" with the moniker, "Player," was upset with Casillas because he had "laid hands" on Diaz.
On the night of November 4, 2005, appellant visited the condominium and used methamphetamine with Salomon. Before appellant left, Salomon invited him to attend his cousin's wedding the following day.
When appellant returned to the condominium at about 11:30 a.m. the following day, Salomon and Orosco were in the living room along with Jaime Alejo and his girlfriend, while Casillas was in his bedroom with his girlfriend, Eileen Gutierrez. Appellant was not dressed for the wedding. He told Orosco that he needed to talk to him, and the two of them went outside. About 10 minutes later, appellant came back inside and went into Salomon's bedroom, where a large knife was hanging from a bungee cord on the wall. According to Salomon, appellant handled the knife "every time" he came to the condominium and would "walk around with it and put it in his waist." Appellant said, "Hey, man, what's up with that knife? I love that knife. Give it up, you know, give it up here." Salomon gave appellant the knife and he began slapping it around in his hands. Appellant went into the living room, approached Casillas, and said, "I need to talk to you. I need to get at you." Casillas asked, "Man, what's up?" Appellant responded, "You fucked up. You know what, Tony." Casillas stood up, came face-to-face with appellant, and asked, "How did I fuck up? What are you talking about?" Appellant told Casillas that Player had told him to "get at" him for "hit[ting] up on Dena."
Salomon interjected and said, "Please don't start this shit in my house," and told them to take it outside. Appellant did not listen and started waving the knife at Casillas. Salomon then told them to "[t]ake it to the room, go talk in my room." As appellant and Casillas walked into Casillas's bedroom, Casillas repeatedly told appellant, "Man, put that shit away." Appellant tucked the knife in his waistband, and Orosco closed the bedroom door. Seconds later, loud noises were heard coming from the room and appellant came running out covered in blood. Shortly thereafter, Casillas ran out with the knife sticking out of his chest and said, "Mother fucker, I got stabbed," and then collapsed on the floor.
Salomon ran into his bedroom, locked the door, and called 911. He then climbed out the window and ran to a neighbor's house. In the meantime, Orosco followed appellant out the front door. When Orosco noticed that appellant had cut his hand and was bleeding, he told him to go back into the condominium and wash up in the kitchen. After appellant did so, he walked over to Casillas, inflicted four or five uppercut punches, and said, "SouthSide Chiques." Orosco pulled appellant away and told him to leave Casillas alone. Appellant and Orosco then left the condominium and ran to Joseph Villareal's house. Villareal drove them to a Target store, where they dumped appellant's bloody clothing in a dumpster, then took them to Diaz's house.
Diaz drove appellant and Orosco to a Holiday Inn. Orosco left with his girlfriend, who picked him up. There were no rooms available, so Diaz drove appellant to the house where he lived with his aunt, Michelle Strosser, and her daughter, Stephanie.
The police arrived at the condominium in response to the 911 call and found Casillas on the floor in a fetal position with a 15-inch knife in his chest. His blood was found in various locations inside the condominium, including the couch, a trash can, and the back of his bedroom door. A trail of Casillas's and appellant's blood was found outside running from the front door to the back of the condominium. Both men's blood was also found on a black baseball cap lying in the doorway to Casillas's bedroom. Appellant's blood was also found on the kitchen table and faucet.
Casillas died from the knife wound to his chest, which punctured his heart, cut part of his lung, and severed one of his ribs in half. It was also determined that he had a high level of methamphetamine in his system at the time of his death.
When Salomon was interviewed by the police five days after the murder, he said appellant had admitted killing Casillas because he had mistreated Diaz. At trial, Salomon denied making that statement. He also denied or did not recall several other statements the police attributed to him from the interview. For example, he denied telling the police that the knife was hanging on his bedroom wall on the day of the killing and that appellant had told Salomon to give it to him. Salomon testified that he had given the knife to appellant three to five days before the killing, in exchange for a small metal box. He claimed he did not recall telling the police that appellant was playing with the knife right before he stabbed Casillas, although he said appellant did play with it when he first gave it to him. He also denied hearing appellant tell Casillas, "I got to get at you," and said he did not recall stating that appellant was holding the knife when he walked into Casillas's bedroom.
On November 22, 2005, while appellant was in custody, the police photographed his tattoos. Appellant's arms are tattooed with upside-down crosses, devils, and occult imagery. The "SSCH13" on his neck and the "Dirty 13" on his back both stand for SouthSide Chiques in Southern California.
Defense
Appellant testified in his own defense. He admitted he was a daily methamphetamine user and had been arrested many times for drug-related offenses. Appellant met Casillas while they were in jail together, and the friendship continued after their release. The night before the killing, appellant got high with Casillas in Casillas's room. Appellant's girlfriend, Anna, drove him to the condominium the following afternoon because Salomon had invited him to a wedding. Appellant was not dressed for the wedding because he was going to borrow clothes from Casillas or Salomon. Anna was going to drive them to the wedding, so she waited in her car in the alley behind the building. Appellant went inside and saw Orosco, whom he had just met, and introduced himself to Alejo and his girlfriend. Appellant told Salomon to hurry because Anna was waiting. When he came out of Salomon's room, he learned that Orosco had told Anna to leave so she could go to work.
When appellant returned to Salomon's bedroom, Salomon was holding his knife and handed it to appellant. The knife was always being passed around and held by several people, and appellant had often told Salomon that he wanted it. Appellant went into the living room with the knife and sat on the couch. Casillas later came out of his room with his girlfriend and sat next to appellant. The two of them shook hands. Then, for reasons unknown to appellant, he said to Casillas, "Tony, you fucked up. You fucked up, dog." He noted that he had been evaluated for hallucinations, and had once been stopped by the police for going to the Girls Club to get his sister, even though he does not have a sister. Casillas got up from the couch, got in appellant's face, pushed him, and asked, "What are you talking about?" When appellant again told Casillas that he had "fucked up," Casillas replied, "Let's go to my room, Weasel." Appellant followed Casillas to his room and Casillas locked the door behind them. A girl was on the bed. Appellant sat on a chair while Casillas sat at the end of his bed. After the two of them repeated variations of their previous remarks, appellant said, "You know what, Tony, just don't do it again dog." Appellant had no idea what he meant by this. Casillas became more aggressive and eventually grabbed appellant's wrist where he was holding the knife and began to fight with him. Casillas hit appellant on the top of his head, so he pushed him onto the bed. As he did so, he accidentally stabbed him. Appellant had no reason to harm Casillas and never intended to do so.
When appellant saw the knife sticking out of Casillas, he opened the door, and ran outside. He went back inside and saw Casillas standing next to the couch, then went outside again and ran around the building a few times. When he entered the condominium again to use the phone, Orosco also told him to "[g]o to the fuckin' sink, go wash yourself." After appellant washed the blood off of his hands and face in the kitchen sink, Orosco said, "We need to get the fuck out of here." Appellant wanted to stay and help Casillas, but Orosco led him out of the condominium and took him to Villareal's house. Appellant "was in shock" and "didn't have nothing to say to nobody." Orosco and Villareal gave appellant a change of clothes, put his bloody clothes in a plastic bag, and then told him, "We are leaving." Appellant laid down in the back seat of Villareal's Bronco as he drove to the Target store in Ventura. After Villareal parked, he and Orosco got out of the vehicle with the bag of appellant's clothing. Appellant got out and followed them until they walked to a place where he could not see them. When Orosco and Villareal returned, they walked appellant back to the Bronco and told him to "[l]ay down again." Appellant complied.
Villareal drove to Diaz's house. Appellant sat in the living room with Diaz's parents while she and Orosco talked in her bedroom. Diaz later drove appellant to a Holiday Inn. No rooms were available, so Diaz drove to appellant's house. After they took methamphetamine in the car, appellant and Orosco went inside.
Appellant denied that Marshall ever said anything to him about Casillas and Diaz. The first time he heard the allegation that he had attacked Casillas on Marshall's orders was when his attorney read him Orosco's statements to that effect.
Dr. Donald Montgomery, a physician who lost his license due to substance abuse, testified on behalf of appellant as an expert medical witness. Dr. Montgomery opined that appellant did not inflict a fatal injury when he stabbed Casillas in the bedroom. Rather, the initial stab wound merely pierced Casillas's right lung. According to Dr. Montgomery, Casillas's fatal injuries - a punctured heart, a lacerated left lung, and pierced esophagus - were inflicted when he ran into the living room and collapsed face-first on the sofa, thereby impaling himself with the knife that was protruding from his chest.
DISCUSSION
I.
Motion for New Trial - Juror Misconduct
Appellant contends the court abused its discretion in denying his motion for a new trial on the ground of juror misconduct. We disagree.
Background
The jury returned its verdict against appellant on October 25, 2007, and was thereafter excused. On January 22, 2008, appellant moved for a new trial alleging juror misconduct. Appellant alleged that about a month after the verdict was rendered his trial attorney was approached by William Wilkins, a prospective juror who had been excused when the jury was empanelled on October 9. Wilkins had discovered that jury foreperson R.W. (Juror W.), under the pseudonym "The Misanthrope," had discussed the case on an internet "blog" while the trial was in progress, in violation of the court's admonition. Copies of blog entries posted from October 10 through November 19, 2007, were attached as exhibits.
The prosecution initially opposed the motion on the ground that Juror W. had told a district attorney investigator that all the entries were first posted on the internet after the verdict was rendered and had been backdated to correspond with the events they referred to. A supplemental opposition was filed after Juror W. informed the prosecutor that he was "extremely ill" when he spoke to the investigator and was "now not quite sure exactly when he posted the blog information, and he may have posted the information during the pendency of the trial." Juror W. continued to maintain, however, that he never had any outside contact with another juror and had kept an open mind about the case during the trial and going into deliberations. Attached as exhibits to the supplemental opposition were copies of six additional blog entries posted from October 11 through October 26.
At the hearing on the motion, Juror W. testified that he may have backdated some of the entries but was unsure of which ones. He acknowledged that some of the entries may have been posted during the trial. He asserted that he did not intentionally violate the court's admonition. He denied reading any news accounts of the case until after the admonitions were lifted, and also denied discussing the case with fellow jurors. He acknowledged that a blog entry posted on October 15 included cut-and-pasted information from Wikipedia regarding the difference between medical examiners and coroners, but denied that this information led him to form any opinion as to appellant's guilt or innocence. Prior to deliberations, he kept an open mind about the case. During deliberations, he reviewed the evidence along with the rest of the jury, encouraged questions, listened to a readback of testimony, and applied the law as instructed. His impression of appellant's trial attorney played no part in his decision.
The court concluded that although Juror W. had committed misconduct, appellant suffered no prejudice. The court reasoned: "It appears from the blog that although he was talking about the trial, in violation of the court's directive, it appeared also that he was keeping an open mind and he's not discussing the pertinent facts of the case as it went along. [¶] And actually, in deliberations -- of course, this is one of the unusual times when we are able to get into the minds of the juror that we wouldn't ordinarily get into. How they do their business is not something that we can inquire about. But we do know how Juror [W.] approached the deliberations, and that he was leaning toward [appellant's] version of the events and after rereads and speaking with other jurors he was convinced otherwise."
Analysis
Juror W.'s pre-verdict blog entries are essentially a journal of the procedural stages of the trial, peppered with the author's decidedly cynical commentary about the pace of the proceedings and the nature of the jury system in general. The first entry also includes criticisms of the attorneys and certain prospective jurors, while the last pre-verdict entry contains praise for his fellow jurors. The trial court found that although Juror W. had committed misconduct by discussing the case in this manner, appellant had suffered no prejudice. The court reasoned that Juror W.'s comments were not only devoid of any discussion about the particulars of the case, but also demonstrated that he "was keeping an open mind" and was "leaning toward [appellant's] version of the events" when deliberations began.
For example, the October 10 entry states, "It appears that I have made the cut for jury duty on a murder trial. Not that I really wanted to, but on the other hand it does seem interesting. My thoughts thus far and I won't be able to say much once it really gets underway, but I will be taking copious notes." The following day, Juror W. writes, "It's final I am on the jury for a murder case. It took forever and a day to select the jury." In the October 22 entry, it is noted that the jury is about to receive its instructions and will then hear closing arguments. The next entry on October 24 essentially states that deliberations had begun with Juror W. as the foreperson. In the last entry prior to the verdict, Juror W. states, "The first day of deliberation was a productive one" and adds, "We left with a possible verdict, but we are going to discuss again in the morning to finalize. It's possible that by afternoon we will give our verdict to the judge."
Appellant's attorney is described as "into a Columbo detective-style of acting stupid and asking questions in the most condensing and convoluted way that makes many completely confused and not knowing what the hell the question was. However, what he is doing is trying to set the stage and put thoughts into our supposedly Tabula rasa minds." In another entry, Juror W. complains, "We are not getting the eloquence of the attorneys in the movie 'Inherit the Wind'." Regarding prospective jurors who make up excuses to get released from service, he states, "The judge questions these people like the liars and bozos they are and it's no wonder that they talk down to the jurors as if we are simpletons with no education whatsoever." In his final pre-verdict entry, he compliments his fellow jurors, "Spending a day with a group of strangers in a small room trying to come to a consensus could be very difficult, but we have a very nice, considerate, and compassionate coterie that is willing to listen. I am very impressed and feel fortunate."
Appellant claims the court erred in concluding he did not suffer prejudice as a result of Juror W.'s misconduct. He asserts that Juror W.'s demonstrated "cynicism and lack of respect for the entire system would have had a negative effect on [his] approach to the case and deliberations." He also complains the court failed to consider that the responses of other bloggers to Juror W.'s comments "could have encouraged Juror W. to further disregard the court's instructions." According to appellant, Juror W. assumed a "contemptuous posture to play to his audience" that demonstrates a "prejudicial outside influence on him that cannot be rebutted...." He contends the misconduct involves such a probability of prejudice that it amounts to a due process violation warranting per se reversal. (See, e.g., Parker v. Gladden (1966) 385 U.S. 363, 364-365.)
"A juror who 'consciously receives outside information, discusses the case with nonjurors, or shares improper information with other jurors' commits misconduct. [Citation.] Jury misconduct 'raises a rebuttable "presumption" of prejudice.' [Citation.] [¶] On appeal, the determination whether jury misconduct was prejudicial presents a mixed question of law and fact 'subject to an appellate court's independent determination.' [Citation.]" (People v. Tafoya (2007) 42 Cal.4th 147, 192.) "We assess prejudice by a review of the entire record. 'The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. [Citations.] Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. [Citation.] The judgment must be set aside if the court finds prejudice under either test.' [Citation.]" (Ibid.)
Viewed objectively, Juror W.'s blog entries do not give rise to a substantial likelihood that he was biased against appellant. Moreover, the misconduct is not so inherently prejudicial that it constitutes a violation of his due process rights amounting to structural error. Although Juror W. indisputably discussed the case while the matter was pending in violation of the court's admonition, and thereby committed misconduct, none of the discussions were directed at appellant or the substance of the case against him. As appellant's own attorney noted at the hearing on his new trial motion, "There's nothing wrong with jurors coming into the courtroom and seeing and drawing opinions about the accused or the attorneys or the judge or the bailiff.... [I]t would be crazy to assume they don't." Juror W. never mentions appellant by name, nor does he refer to any of the factual allegations, evidence, or legal defenses at issue in the case. The entries are also devoid of any indication that Juror W. had prejudged the case, relied on extraneous materials, or based his verdict on anything other than the evidence and instructions presented at trial. Any stated "cynicism" or "lack of respect" for the legal system in general was not the basis for the finding of misconduct because Juror W. was not admonished to refrain from engaging in that type of discussion.
Appellant correctly notes that Juror W. referred to appellant's trial attorney as engaging in "a Columbo detective-style of acting stupid and asking questions in the most condensing and convoluted way that makes many completely confused and not knowing what the hell the question was," yet he fails to acknowledge Juror W. testified under oath that this impression of appellant's attorney played no part in his decisionmaking. Similarly, the juror's early reference to certain prospective jurors as "liars and bozos" is countered by his post-verdict statements, in which he lauds his fellow jurors as "a very nice, considerate, and compassionate coterie that is willing to listen."
4 For the first time on appeal, appellant asserts that Juror W.'s statements concerning the mental processes by which he reached his verdict were inadmissible under Evidence Code section 1150. This claim is forfeited because it was not raised below. In any event, the statements were admissible to the extent they rebutted appellant's claim that he failed to disclose his bias against appellant and never intended to follow the court's instructions. (See In re Hamilton (1999) 20 Cal.4th 273, 298, fn. 19; People v. Hutchinson (1969) 71 Cal.2d 342, 348.)
Other entries posted after Juror W. was free to comment on the case are similarly devoid of any support for appellant's claim that the juror was biased or prejudged the case against him. On the contrary, the entry posted the morning after the verdict was read states that "[t]hroughout my notes I had written that the murder was an accident that he didn't mean to kill him.... Over the next two days, the evidence and testimony was reviewed. The court reporter came in and read us testimony from the two witnesses and from the defendant. The defendant's story was not adding up and was not credible."
Appellant's claim that Juror W. was demonstrably influenced by fellow bloggers is also unavailing. He does not offer a single example in which any reference is made to appellant or his guilt or innocence, nor does he offer any support for his claim that Juror W. was induced to disregard any of the jury instructions. He also asserts that Juror W.'s complaints about the length of the trial and taking too many breaks and the comments in response thereto "could have had the effect of encouraging [him] to do what he could to hasten the trial and a verdict," yet the record is devoid of any indication it had such an effect.
Appellant claims for the first time on appeal that Juror W. committed misconduct by eavesdropping on sidebar conferences, which he admitted in one of his entries. This claim is forfeited because it was not raised below. In any event, Juror W. merely stated he had overheard that the jury would be entering the courtroom through the back entrance, and had also "see each attorney get slightly scolded." We do not see how appellant could have been prejudiced by the juror's possession of this knowledge.
For the first time on appeal, appellant asserts that Juror W. committed misconduct by posting a "cut and pasted" article from Wikipedia regarding the difference between medical examiners and coroners. He contends this action violated the court's admonitions to refrain from conducting research, relying on extraneous evidence, and using reference materials. This claim is waived because it was not raised below. In any event, it is not substantially likely that Juror W. was biased as a result of this relatively innocuous conduct. (People v. Tafoya, supra, 42 Cal.4th at p. 192; People v. Hamilton, supra, 20 Cal.4th at pp. 295-296.)
II.
Tattoos
At trial, the prosecution presented photographs depicting appellant's tattoos of an upside-down cross, an upside-down pentagram, the devil, and "666." Appellant argues that these photographs, and the prosecution's questioning of witnesses on the subject of the tattoos, should have been excluded as irrelevant (Evid. Code, § 210), inadmissible character evidence (§ 1101, subd. (a)), and unduly prejudicial (§ 352). We conclude that the evidence was properly admitted.
All statutory references are to the Evidence Code unless otherwise stated.
Because appellant did not object to the evidence under section 352, he forfeited his right to argue on appeal that the evidence should have been excluded under that section. (In re Seaton (2004) 34 Cal.4th 193, 198; see People v. Williams (1997) 16 Cal.4th 153, 250 [claim of error under § 352 not preserved by relevancy objection].) For the same reason, he forfeited his claim that the evidence should have been excluded as improper character evidence under section 1101. (§ 353; People v. Partida (2005) 37 Cal.4th 428, 431.)
While appellant did object on relevance grounds when the prosecution asked witness Orosco if he recalled whether appellant had any tattoos of the devil or occult imagery, he did not object when photographs of the tattoos were subsequently shown to Orosco. The photographs were also presented without objection during the testimony of Detective Jones and Michelle Strosser, and both witnesses were asked and answered questions about the tattoos. Appellant also referred to the tattoos on direct and cross-examination. Moreover, he did not object when the photographs, marked as People's exhibits 12 and 19, were offered into evidence.
When Orosco was shown a photograph of the upside-down cross tattoo, appellant raised a foundational objection, arguing that "[the prosecutor's] not asking if he ever saw it on the person. We all see the picture."
Assuming that appellant's relevance objection to Orosco's testimony regarding his knowledge of appellant's tattoos is sufficient to preserve his claim that the photographs of those tattoos should have been excluded as irrelevant, the claim lacks merit. "Evidence is relevant if it has any tendency in reason to prove or disprove a disputed fact at issue." (People v. Mayfield (1997) 14 Cal.4th 668, 749; § 210.) The trial court exercises broad discretion in determining relevance. (People v. Harris (2005) 37 Cal.4th 310, 337.)
The court did not abuse its discretion in overruling appellant's relevance objection. As the prosecution argued opposing appellant's motion for a new trial on the ground that the evidence of his tattoos was erroneously admitted, the evidence was relevant "to rebut this notion that the defendant was somehow out of his mind as he screamed around the apartment complex talking about God and the devil. And we put those tattoos in evidence to show that the obsession with the occult was not something that was new or startling, but was in fact part of this defendant's psyche." This position is borne out by the record. In his opening statement, appellant's attorney offered that appellant "does say things that he doesn't know why. He will find himself making statements out of the Bible. He will find himself talking about the horrors of the devil." In questioning Orosco, the prosecution asked whether he had ever heard appellant "talk about God and the devil, occult, things like that...." Orosco responded, "Not really, but I know he didn't believe in God. He didn't like God." Appellant himself acknowledged telling his probation officer that the tattoos were "Satanical." Because appellant's tattoos tended to undermine his claim that he committed the crime while in the throes of a delusion, the court did not abuse its discretion in admitting evidence of the tattoos over appellant's relevance objection. In the same vein, the evidence was admissible under section 1101, subdivision (b), to rebut appellant's claim that he did not intend to kill Casillas and that his death was an accident.
In any event, any error in admitting the evidence of appellant's tattoos was harmless. The evidence of his guilt was overwhelming. Appellant confronted Casillas with a knife and provoked him to fight. Appellant's claim that the killing was an accident is undermined by the fact that he plunged the eight-inch blade to the hilt into Casillas's chest, as well as the fact that he returned to the condominium and repeatedly hit Casillas as he lay dying with the knife protruding from his chest. Because it is not reasonably probable that appellant would have achieved a more favorable result had the evidence of his tattoos been excluded, any error in its admission would not entitle him to a new trial. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Boyette (2002) 29 Cal.4th 381, 427-428 [application of ordinary rules of evidence reviewed under Watson standard of harmless error].)
III.
Jury Instruction
At the prosecution's request, the court instructed the jury on imperfect self-defense based on former CALJIC No. 5.17, as follows: "The principle of self-defense or imperfect self-defense is not available, and malice aforethought is not negated, if the defendant, by his unlawful or wrongful conduct, created the circumstances which legally justified his adversary's use of force, attack, or pursuit." Appellant contends the instruction should not have been given because there was no evidence from which the jury could have found he created the circumstances that legally justified Casillas's use of force against him. He argues that the instruction did not apply because he never claimed to have acted in imperfect self-defense or self-defense to homicide.
Substantial evidence supported the giving of the instruction. By appellant's own admission, he confronted Casillas while holding a large knife in his hand. By appellant's account, he was also holding the knife when Casillas grabbed his wrist and punched him. The jury could infer from this evidence that appellant, by brandishing a weapon, had created the circumstances that legally justified Casillas's use of force. Although appellant complains that he never claimed self-defense or imperfect self-defense to homicide, the court correctly gave the instruction over appellant's objection pursuant to its duty to instruct the jury on all principles of law that were relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154 ["[t]he obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given"].)
Appellant also complains "the instruction was vague and confusing, and should have been corrected before it was given." We agree with the People that appellant forfeited this claim by failing to challenge the standardized jury instruction below because he essentially complains that the instruction was incomplete, not incorrect. A "defendant is not entitled to remain mute at trial and scream foul on appeal for the court's failure to expand, modify, and refine standardized jury instructions." (People v. Daya (1994) 29 Cal.App.4th 697, 714.) Appellant's claim that the court should have given different instructions is similarly infirm.
In any event, the claim lacks merit. CALJIC No. 5.17 is a nearly-verbatim reiteration of a passage from In re Christian S. (1994) 7 Cal.4th 768, 773, footnote 1, which states: "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. [Citations.] It follows, a fortiori, that the imperfect self-defense doctrine cannot be invoked in such circumstances. For example, the imperfect self-defense doctrine would not permit a fleeing felon who shoots a pursuing police officer to escape a murder conviction even if the felon killed his pursuer with an actual belief in the need for self-defense." This language has subsequently been cited with approval. (See People v. Randle (2005) 35 Cal.4th 987, 1001, overruled on another point in People v. Chun (2009) 45 Cal.4th 1172, 1201; People v. Seaton (2001) 26 Cal.4th 598, 664 [because "defendant's testimony showed him to be the initial aggressor and the victim's response legally justified, defendant could not rely on unreasonable self-defense as a ground for voluntary manslaughter"]; People v. Hardin (2000) 85 Cal.App.4th 625, 630 & fn. 2, 634 [concluding that the "wrongful conduct" language is "legally correct"].) We are bound to follow the Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
We reject appellant's claim that the "wrongful conduct" in question must be either "the initiation of a physical assault or the commission of a felony." If the court had intended the list to be exhaustive, the offenses would have been preceded by "i.e." instead of "e.g." In any event, the evidence supports a finding that appellant initiated a physical assault.
We also conclude that any error in giving the instruction was harmless. This type of instructional error is akin to error in failing to instruct on a lesser included offense. (See People v. Blakeley (2000) 23 Cal.4th 82, 93.) In noncapital cases, such error is subject to the standard of review enunciated in People v. Watson, supra, 46 Cal.2d, page 836. As we have explained, the evidence of appellant's guilt was overwhelming. Even if the instruction had not been given, it is unlikely the jury would have accepted appellant's claim that he had merely acted in self-defense to Casillas's battery and had accidentally stabbed him. It is therefore not reasonably probable that the result would have been more favorable to appellants had the jury not been given the special instruction. (Ibid.)
The judgment is affirmed.
We concur: YEGAN, Acting P.J. COFFEE, J.