Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCD206571, Bradford L. Andrews, Judge. (Retired judge of the Los Angeles S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Calif. Const.) Affirmed.
HUFFMAN, Acting P. J.
A jury convicted James Tillory of one count of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), and one count of felony vandalism (§ 594, subds. (a)(b)(1)). The jury also found that Tillory personally used a firearm within the meaning of section 12022.5, subdivision (a). The court sentenced Tillory to a seven-year prison term, but suspended the execution of the sentence and granted him formal probation.
All further statutory references are to the Penal Code unless otherwise specified.
Tillory appeals alleging prejudicial instructional error regarding the principles of self-defense and the burden of proof. We will find no error and affirm.
STATEMENT OF FACTS
On May 12, 2007, Tillory's neighbors held a large party for their daughter. There were numerous guests in attendance and the party, held in the carport and driveway, lasted from around 6:00 p.m. until sometime around 11:00 p.m. The neighbor's family member, Roberto Barragan, Sr., provided the music for the event using a laptop computer and speakers.
Around 7:00 p.m. that night Tillory asked Barragan's son to turn down the music and the son complied with the request. There was an exchange between Tillory and one of the guests in which the guest told Tillory to call the police if he did not like the music. Tillory said he did not need the police and he could take care of the problem himself.
Around 9:00 p.m. Tillory again went to the neighbor's house to complain about the loud music. He was carrying a bottle of water when he arrived. He asked Barragan to turn down the music and Barragan complied. Tillory then poured the bottle of water onto the laptop computer. Barragan pushed Tillory away and Barragan's sister, Norma, went to get napkins to soak up the water.
When Norma handed the napkins to her brother, Tillory pushed her in the chest causing her to stumble back. Barragan and Tillory then pushed each other, Barragan was shoved to the ground and Tillory landed on top of him.
Some of the guests pulled Tillory off of Barragan. When Tillory stood up he pulled out a revolver and pointed it in the air. He then pointed the gun at Barragan's head. He told Barragan "you are in a problem" and told Barragan there would be no more problems with the music. Tillory then left.
Before he was arrested, Tillory told police that he had been "jumped" before he pulled out the gun. He told police that Barragan had held him in a headlock and that people had punched and kicked him.
DISCUSSION
Tillory raises three challenges to jury instructions given at trial. He contends the trial court did not adequately instruct on self-defense, that the court should have defined the term "mutual combat" without request, and that the court failed to adequately inform the jury as to the prosecution's burden to prove each element of each offense beyond a reasonable doubt. None of these issues was raised in the trial court. Defense counsel did not object to any of the instructions at issue and specifically declined to request any modification of the self-defense instructions.
Tillory excuses trial counsel's failure to request the inclusion of language he now contends was essential based on the argument that the prosecutor somehow misled defense counsel. He claims the prosecutor failed to give him or the court "notice" that a bracketed portion of an instruction was omitted. He argues that this court should assume that defense counsel believed the bracketed paragraph was included in the instruction offered by the prosecutor. We address this issue first because there is absolutely no basis in this record to support a finding that defense counsel or the court was misled. Certainly defense counsel at trial had the opportunity at the jury instruction conference to raise the issue of the defense desire to rely on the principles in the omitted portion of the jury instruction. If not at the conference, counsel was present when the instructions were read to the jury and never objected. Nor did the defense raise any of these issues by way of a motion for new trial.
Tillory's entire argument on the question of why the current challenge to the self-defense instructions was not raised at trial is based on a few remarks at the jury instruction conference. Defense counsel said he had not received self-defense instructions in the "packet." The trial judge said he had them. The prosecutor said: "Should be there. Not at the very end of the jury instructions. No, they're not there. Here."
The court then said to defense counsel:
"The Court: You now have a copy of the instructions having to do with self-defense?
"[Defense Counsel]: Yes.
"The Court: Okay. That's 347. 3471, 3472, and 3474. Do we need to make any additions, deletions, or modifications to those?
"[Defense Counsel]: I don't think so."
On this record we cannot assume trial counsel did not read the instructions or was in any way misled. It seems clear that trial counsel simply did not deem it appropriate to raise the issues now pressed by appellate counsel. That said, the parties here agree the trial court is obliged to correctly instruct the jury on the law. (People v. Breverman (1998) 19 Cal.4th 142, 154.) Accordingly we will address the claims Tillory now makes on appeal.
1. The right of self defense by the aggressor.
At issue at trial was whether Tillory lawfully acted in self-defense. His version was that he was attacked by the party guests. The prosecution's version was that Tillory started the fight, was the aggressor, and did not have the right to threaten deadly force by pointing the gun at Barragan.
The jury instruction dealing with self-defense during a fight is CALCRIM No. 3471. That instruction provides:
"A person who engages in mutual combat or who is the initial aggressor has a right to self-defense only if:
"1. He actually and in good faith tries to stop fighting;
"[AND]
"2. He indicates, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wants to stop fighting and that he has stopped fighting.
"If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight.
"[If you decide that the defendant started the fight using nondeadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting.]"
The instruction as given in this case did not include the last bracketed paragraph. Tillory now contends the failure to include that paragraph was prejudicial error.
Relying on People v. Quach (2004) 116 Cal.App.4th 294, 301-303 (Quach), Tillory contends he was entitled to self-defense because even if he was the aggressor, the guests attacked him by punching and kicking him. He notes that although he was not subjected to deadly force from the guests, the jury could have found that the guests responded with "excessive" force and that he could not withdraw from the fight. Quach does not assist Tillory on this record.
In Quach, supra, 116 Cal.App.4th at pages 297 through 298, 303, the court dealt with a case where the appellant had been engaged in mutual combat with a rival gang member. The defense was that before the defendant could pull out his gun, the opponent had taken out a gun and fired it at the defendant. Under those circumstances the court held that the defendant was entitled to an instruction similar to the bracketed paragraph at issue here.
This case is much different. There is no evidence of the use of deadly force by the guests against Tillory. There is a legitimate dispute as to how the guests responded to Tillory's actions, but there appears to be no evidence which could rise to the level of deadly force under circumstances in which Tillory could not have withdrawn from the fight. In his reply brief, Tillory shifts his position somewhat to argue that even if the force used by the guests was not "deadly force," it could have been found to be "excessive" and thus within the principles set out in Quach, supra, 116 Cal.App.4th 294 . Of course, the bracketed paragraph, which Tillory argues should have been given to the jury, does not include a reference to "excessive force." Thus giving the instructions as he now suggests should have been given would not have addressed the problem Tillory raises on appeal.
In a case such as this where the court has given comprehensive instructions on the defense, the nuanced change that Tillory now advances should have been raised as a request to modify the pattern instructions. Those instructions were otherwise correct statements of the law and it was incumbent on Tillory to request any modifications that might have clarified his defense position. Failure to make an appropriate request forfeits the claim that the otherwise correct instructions should have been modified. (People v.Young (2005) 34 Cal.4th 1149, 1202.) Tillory's efforts to place responsibility for his failure to raise this issue at trial onto the prosecutor is simply not supported by the record. He has not raised any claim of ineffective assistance of counsel in this appeal, thus we find no basis to relieve Tillory of the forfeiture by failure to request a modification of the instructions that were given.
2. Failure to define "mutual combat."
CALCRIM No. 3471 as given to the jury limits the ability of one who engages in mutual combat to rely on self-defense unless the person has taken the necessary measures to stop the fighting. Once again, Tillory did not object to this portion of the instruction, nor did he make any request for the court to further define any of the terms.
Tillory relies on People v. Ross (2007) 155 Cal.App.4th 1033, for the proposition that the court has a duty to define "mutual combat" beyond the language of the jury instruction. The Ross case does not require a trial court to further define that term in the absence of a jury request or some demonstrated need for clarification. In Ross, the court dealt with a case in which there really was no substantial evidence of mutual combat. The trial court there had initially refused to give such an instruction, but the prosecution insisted for "tactical reasons." The appellate court found there was no basis in that case to give the mutual combat instruction limiting the defendant's access to self-defense. (Id. at pp. 1052, 1054.) While it is true the court in Ross engaged in a lengthy discussion of the term and its meaning in the self-defense context, it did not conclude there was any suasponte duty to instruct in the absence of a request. In Ross the jury asked for further definition of the term in a case where the court later concluded the instruction should not have been given. The trial judge's failure to further define the term in that case simply made the problem worse.
In this case we repeat, there was no objection to the instruction and no request by anyone for clarification of the term. Thus we hold there was no duty imposed on the trial court to further amplify the instruction on its own motion. There was no error in this regard.
Further, the instruction at issue does not limit itself to persons who engage in mutual combat. It also refers to persons who are the initial aggressors. Jurors were told they should ignore any instructions they find do not apply to the facts of the case. (CALCRIM No. 200.) It is presumed the jury ignored any irrelevant instructions. (Peoplev. Rollo (1977) 20 Cal.3d 109, 123.) We agree with the respondent that Tillory has failed to show any prejudice from the failure of the trial court to further define the term "mutual combat."
3. The prosecution's burden of proof.
It is undisputed in this appeal that the prosecution has the burden in a criminal case to prove each element of each offense beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 831.) The dispute here is directed to the language of the jury instructions given and whether the court adequately informed the jury of the correct burden of proof.
In his opening brief, Tillory contends CALCRIM No. 220 is defective because it does not specifically include a reference to the burden to prove each element of each offense. He contrasts CALCRIM No. 220 to CALCRIM No. 103 (Jan. 2006 ed.) which provided:
CALCRIM No. 220 as given provides: "The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt [unless I specifically tell you otherwise]. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty."
"I will now explain the presumption of innocence and the People's burden of proof. The defendant has pleaded not guilty to the charge[s]. The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial.
"A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime [and special allegation] beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt [unless I specifically tell you otherwise].
"Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.
"In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty."
CALCRIM No. 103 has since been modified to more closely track CALCRIM No. 220. The explicit reference to proving each element has been omitted. (CALCRIM No. 103, July 2007 Ed.)
Tillory argues that the trial court should have given the CALCRIM No. 103 language at trial. The Attorney General has replied the CALCRIM No. 103 was given and it is to be found at page 26 of the clerk's transcript. Tillory's response in his reply brief is that the Attorney General has not cited to the reporter's transcript and there is no mention of the instruction in the reporter's transcript on appeal. We will first deal with the record issues.
The clerk's transcript includes a number of jury instructions that are designed to be given before the start of trial. (CALCRIM Nos. 100-105 and 121.) They are each marked by the court as "Given." The minute order of April 11, 2008, reflecting the start of the trial and the taking of evidence contains a reference to: "The Court reads selected jury instructions to the jury." It also reflects that both sides made opening statements and then testimony began.
We have reviewed the reporter's transcript of the trial. The in limine motions were transcribed. The opening statements and the court's pre-instructions to the jury were not transcribed and are not part of this record. Understandably then, the Attorney General could not cite to a page in the transcript where such instructions were read. Given that the minutes and the clerk's transcript clearly show the instructions were given to the jury, we are satisfied that CALCRIM No. 103 as contained in the record was indeed read to the jury. Thus we find the factual basis for Tillory's claim is incorrect.
Even assuming CALCRIM No. 103 was not given, and noting the instruction has since been modified, we must comment on the implicit claim that CALCRIM No. 220 is somehow defective. It is not.
Recognizing the duty to advise the jury of the prosecutor's burden of proof as to the elements of the crime, we think the CALCRIM instructions, taken as a whole do exactly that. A key paragraph of CALCRIM No. 220, provides: "A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt[unless I specifically tell youotherwise]." (Italics added)
The instructions on the charged offenses each set forth the elements that must be proved to convict on that offense. For example CALCRIM No. 875 defining the assault crime in this case provides, in part: "To prove the defendant is guilty of this crime, the People mustprove that:..." (Italics added)
The jury is thus instructed, by the combination of CALCRIM 220 and the instruction for each offense that the People must prove (beyond a reasonable doubt) the "following," which are the elements of the offense. Accordingly, we are satisfied that in this case, both before trial and just prior to deliberation the jurors were told of the prosecutor's burden to prove each element of each offense defined by the court, beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McINTYRE, J., IRION, J.