Opinion
D073025
11-28-2018
THE PEOPLE, Plaintiff and Respondent, v. RAUL B. VARGAS, Defendant and Appellant.
David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Livingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCS286199) APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed. David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine Livingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Raul B. Vargas of second degree murder (Pen. Code, § 187, subd. (a)), rejecting the prosecution's theory of first degree murder and the defense theory of self-defense. The jury also found true the allegation that Vargas personally used a deadly weapon, a knife (§ 12022, subd. (b)(1)). In a bifurcated trial, the trial court found true two prior strike allegations. (§§ 667, subds. (b)-(i), 1170.12.)
Statutory references are to the Penal Code unless otherwise specified.
The court sentenced Vargas to prison for 46 years to life.
Vargas appeals, contending the trial court made several instructional errors. In addition, he claims his counsel was constitutionally ineffective because he did not impeach a certain witness during trial. Further, Vargas maintains the court erred in using two juvenile adjudications as prior strikes for sentencing purposes. Finally, Vargas asserts cumulative error necessitates reversal. We conclude Vargas's claims lack merit. As such, we affirm.
FACTUAL BACKGROUND
Prosecution
Roberto Banuelos and his girlfriend, Christina Vega, lived in a second floor apartment on Granger Street, around the corner from Fenton Place. Banuelos was a drug addict, who, in 2016, was working at a restaurant, but also sold drugs out of the apartment. Vega was a heroin and methamphetamine dealer. Vega had grown up with Jose Estrada, Jr., and she often sold him drugs. Estrada lived around the corner from Vega and Banuelos on Fenton Place.
Banuelos and Vargas were friends. Vargas often went to Banuelos and Vega's apartment to buy drugs.
On February 26, 2016, Vargas went to Banuelos and Vega's apartment. Estrada, who was at that apartment to buy methamphetamine, opened the door and asked Vargas where he was from. Estrada and Vargas's interaction turned physical with both men falling down the stairs. After the men got up, Estrada pulled out a gun and shot at Vargas as he ran toward his car, which was parked on the street. As Vargas was leaving, he warned Estrada that he was going to come back and get him.
Around midnight, Vargas, accompanied by two of his brothers and several nephews, returned to the apartment looking for Estrada. They demanded to know where Estrada lived. Vega lied and said that she did not know. She did not tell the Vargases where Estrada lived because she "didn't want anything to happen to [him]." When they left, Vargas promised he would be back to get Estrada and said, "I'm going to fuck him up." Vargas sent texts to Banuelos a few times after that night, asking if Estrada had been by Banuelos's apartment.
About a month and a half later, on the night of April 16, Estrada burst into Banuelos and Vega's apartment with a gun, looking for Vargas and his brothers. After Estrada left, Vega sent Vargas a text, warning that Estrada had a gun and was looking for him.
Early in the morning on April 17, Estrada returned to the apartment with some sort of metal object. He struck the security screen door, damaging it, making it difficult to open. As he was hitting the door, Estrada yelled at Banuelos, "come outside" and "I told you, motherfucker, about the Vargases, about them being at your house." About a half hour to an hour later, Vargas arrived at Banuelos's apartment to buy methamphetamine from Vega and to drive Banuelos to his Narcotics Anonymous meeting. Banuelos told Vargas that Estrada was there earlier and was "acting all crazy."
Vargas suggested that they go talk to Estrada. Banuelos thought they were going to "rough up" Estrada. Banuelos and Vargas walked toward Estrada's house. They walked up Granger Avenue, and turned left on Fenton Place. As they walked up Fenton Place, they split up and walked on opposite sides of the street to keep Estrada from getting away. Estrada was standing in the street arguing with his friend, Michael Dexter. When Estrada noticed Vargas and Banuelos approaching, he ran. With Vargas and Banuelos in pursuit, Estrada jumped over a wall at Ed Black's residence, ran along the side of the house and through the backyard. The chase continued into the backyard of the neighboring property to the north and proceeded through a second backyard before ending in a vacant lot.
Black lived in the house next door to Estrada. Juan and Carmen Richards lived behind Black, and to the west of the Richards's house was a vacant lot. The Richards's property was about three or four feet lower than Black's property, and there was no impediment that would prevent a person from dropping down into the Richards's backyard from Black's backyard.
Vargas initially stabbed Estrada in the southeast corner of the Richards's property, near a shed in the backyard. However, Estrada was able to leave the Richards's property and travel to the adjacent vacant lot. Vargas and Banuelos also left the Richards's property, and the confrontation continued in the vacant lot. Banuelos, who was closer to Estrada, grabbed Estrada's shoulder and spun him around. Estrada, who at some point had picked up a shovel, swung it at Banuelos but Banuelos ducked, avoiding the blow. Vargas, however, was hit in the chest. Estrada then jabbed at Vargas with the shovel. Vargas grabbed Estrada and got on top of him. He stabbed Estrada until he was no longer moving and there was blood coming out of his mouth.
As Estrada lay on the ground bleeding, Vargas and Banuelos fled. Vargas, who had lost his phone, told Banuelos to call Vega and tell her to pick them up in Vargas's car.
Meanwhile, Dexter ran down to the vacant lot to help Estrada. Two nearby residents, who heard the fighting from inside of their house, went down to help, and they sent Dexter to a nearby fire station. The two others moved Estrada away from a wood pile, and after laying him on the ground, attempted to stop the bleeding. Medical personnel arrived and transported Estrada to the hospital, where he died during emergency surgery.
When Vega arrived, Vargas got into the backseat, and Banuelos got into the front passenger seat. After seeing a lot of blood on Vargas, Vega asked them what they had done. Banuelos also asked Vargas, "What was that about?" Vargas responded, "What did you think was going to happen?" Banuelos replied, "Not that." Vargas also said, "I got him. I got him good." Vargas also advised Banuelos and Vega not to talk about what happened. Before dropping Banuelos off at his Narcotics Anonymous meeting, the group stopped at a methadone clinic for Vargas. Vargas took off his bloody sweatshirt before going into the clinic. Later that day, when Vega met Vargas to drop off his car, Vargas asked her to look for a knife that he had dropped across the street from the vacant lot where the stabbing took place.
Vargas had stabbed Estrada in his right side, near his back, lacerating his diaphragm, liver, and kidney. Estrada also suffered two incised wounds, which were caused by a knife or sharp object, but the wounds were longer whereas a stab wound was deeper in the body. One of the incised wounds was on his right back side, and the other was on his right elbow area. Estrada also had bruising and contusions on his face and head. There were also multiple abrasions on his hands and arms and bruising and abrasions on his legs.
Vargas sustained a small scratch on his chest, a couple of abrasions on his legs, and some small abrasions on his hands.
Vargas's cell phone was found in a pool of blood near where he left Estrada. DNA found under Estrada's fingernails was consistent with Vargas's DNA.
The day after the killing, Vargas's brothers went to Banuelos and Vega's apartment and asked them questions about Dexter. The Vargases believed that Dexter was talking to someone about the killing, and they wanted to find Dexter and give him a "hot shot," which was a lethal dose of heroin or similar type of drug.
During a recorded jailhouse phone call, Vargas told his brother that "they" were saying he committed first degree murder, but that he was not in town on the day the murder was committed—he was in Norwalk with his brother.
Defense
Vargas testified in his own defense. He stated that on an evening in February 2016, he went to Banuelos' apartment, only to be met at the door by Estrada, a stranger, not Banuelos. Confronting Vargas at the door, Estrada asked, "Who the fuck are you?" Estrada then blocked the door and pushed Vargas backwards. Vargas turned and ran down the stairs, Estrada chasing after him. As Vargas was fleeing, he heard a shot from behind, quickly got into his car, and left.
Later that evening, Vargas returned to Banuelos's apartment, seeking to find out why Estrada was hostile toward him. Vargas emphasized that he made no threats, did not attempt to go to Estrada's home, and did not try to contact Estrada.
Several weeks later, on the evening of April 16, 2016, Vargas received a text from Vega, relaying to him what Estrada had done in her apartment. She said Estrada had shown up, asking about Vargas's family. She told Vargas that Estrada had a gun, and she warned Vargas to be careful.
The next morning, Vargas went to Banuelos's apartment to take him to his Narcotics Anonymous meeting. He claimed to have no intent of harming Estrada that day. When he arrived at the apartment, he noticed the apartment door had been damaged. Banuelos told him Estrada had just been there and had smashed in the door. Banuelos said he needed "to go get at this dude," and Vargas indicated his willingness to go "along with him." They started walking off in search of Estrada.
Vargas believed Banuelos was going to get into a fist fight with Estrada. As they were walking down Fenton Place, they separated and walked on separate sides of the street. Vargas saw Estrada and Dexter arguing in the street ahead. When they got within about 15 feet of Estrada, Estrada started running. Banuelos ran after him, running from across the street, following Estrada into the yard of the Black's residence on Fenton Place. Vargas followed some five or six feet behind Banuelos.
As Vargas jumped over the backyard fence of that home into the backyard of the Richards's residence, he saw Estrada reaching down for something. Vargas landed between Banuelos and Estrada, at which point Estrada came at him with a shovel. Vargas jumped back as Estrada swung at him. Estrada swung the shovel again, hitting Vargas in the shoulder. When he saw Estrada with the shovel, Vargas pulled out his knife, which he carried as a tool required for his job, "doing demolition." Vargas stabbed Estrada one time. Vargas and Banuelos eventually left the corner of the backyard and headed out on a "little sidewalk[.]" They followed the sidewalk to a vacant lot. Banuelos arrived first at the vacant lot, followed by Vargas with Estrada six or seven feet away from Vargas.
He insisted he did not take out his knife until Estrada swung the shovel at him.
Estrada was still holding the shovel when they got to the vacant dirt lot. He was holding it like a baseball bat. Estrada then rushed at Vargas, swinging the shovel, and hitting him in the chest with it. Because he jumped back, he did not receive the full impact of the hit, but he fell to the ground. On the ground, Vargas protected himself by raising his legs to block Estrada's strikes with the shovel. He used his knife again, believing that if he did not use it, Estrada "was going to end up getting [him] good with that shovel." After Estrada swung the shovel a third time, Vargas was able to get up and "hit [Estrada] again" with his knife, and Estrada backed up and fell down. Vargas then walked away. He explained that he did not stay to describe to the police what had happened because he did not think the police were going to believe him.
DISCUSSION
I
JURY INSTRUCTIONS
A. Vargas's Contentions
Vargas raises several issues regarding the jury instructions. He contends the trial court did not properly instruct the jury that it could find him guilty of voluntary manslaughter on a general intent theory. Vargas further maintains that CALCRIM No. 3472 was legally correct, but improper under the facts of the instant action. In making this argument, he urges us to follow People v. Ramirez (2015) 233 Cal.App.4th 940 (Ramirez). Finally, he asserts it was reversible error for the trial court to instruct the jury with CALCRIM No. 3471 because there was no evidence supporting that instruction.
The People counter that Vargas forfeited all his challenges to the jury instructions by failing to object to the instructions or request a different, modifying, or clarifying instruction. In the alternative, the People insist the challenged instructions were correct, and even if incorrect, Vargas was not prejudiced.
B. Standard of Review and Applicable Law
We review a claim of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In determining whether error has been committed in giving jury instructions, we consider the instructions as a whole and assume jurors are intelligent persons, capable of understanding and correlating all jury instructions which are given. (Ibid.) " 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' " (Ibid.) "The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions." (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
If a defendant does not object to or request a specific jury instruction at trial, he forfeits a challenge to the jury instructions on appeal, unless the claimed error affected the defendant's substantial rights. (See § 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.) "Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim—at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)
C. Jury Instructions Involving Voluntary Manslaughter
Vargas was convicted of second degree murder. Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) "Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (§ 188.) Malice is express when a defendant intends to kill unlawfully, i.e., " ' "there is no justification, excuse, or mitigation for the killing recognized by the law." ' " (People v. Elmore (2014) 59 Cal.4th 121, 133 (Elmore).) "Malice is implied when an unlawful killing results from a willful act, the natural and probable consequences of which are dangerous to human life, performed with conscious disregard for that danger." (Ibid.)
Murder is divided into first and second degree. (§ 189.) Second degree murder is the unlawful killing of a human being with malice, but without the additional elements (i.e., willfulness, premeditation, and deliberation) that would support a conviction of first degree murder. (§§ 187, subd. (a), 189; People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.)
Manslaughter is a lesser included offense of murder. (§ 192; People v. Thomas (2012) 53 Cal.4th 771, 813.) Unlike murder, manslaughter lacks the element of malice. (People v. Rios (2000) 23 Cal.4th 450, 460 (Rios).) "Two factors may preclude the formation of malice and reduce murder to voluntary manslaughter: heat of passion and unreasonable self-defense." (Elmore, supra, 59 Cal.4th at p. 133.) Heat of passion "reduce[s] an intentional, unlawful killing from murder to voluntary manslaughter 'by negating the element of malice that otherwise inheres in such a homicide [citation].' " (Rios, supra, at p. 461; italics omitted.) Similarly, unreasonable self-defense " 'preclude[s] the formation of malice and reduce[s] murder to voluntary manslaughter[.]' " (Elmore, supra, at p. 133) " '[O]ne who holds an honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury does not harbor malice and commits no greater offense than manslaughter.' " (Id. at p. 134.) Although voluntary manslaughter can be committed intentionally, specific intent to kill is not always a necessary element of that crime; voluntary manslaughter also is committed when one kills unlawfully, and with conscious disregard for life, but lacks malice because of provocation or imperfect self-defense. (See People v. Blakely (2000) 23 Cal.4th 82, 91 (Blakely); People v. Martinez (2007) 154 Cal.App.4th 314, 336 (Martinez).)
Below, with the agreement of all counsel, the trial court instructed the jury concerning first degree murder and its lesser included offenses. To this end, the court instructed the jury as to murder (CALCRIM No. 520), first degree premeditated and deliberated murder (CALCRIM No. 521), the effect of provocation on murder (CALCRIM No. 522), voluntary manslaughter based on heat of passion or provocation (CALCRIM No. 570), and voluntary manslaughter based on imperfect self-defense (CALCRIM No. 571). Additionally, with the agreement of counsel, the court provided a modified "concurrence instruction" under CALCRIM No. 252. Here, Vargas challenges the giving of CALCRIM Nos. 252 and 571. We will address the latter first.
The trial court instructed the jury under CALCRIM No. 571 as follows:
"A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense or imperfect defense of another. If you conclude that the defendant acted in complete self-defense or defense of another, his actions were lawful, and you must find him not guilty of any crime.
"The [difference] between complete self-defense or defense of another and imperfect self-defense or imperfect defense of another
depends on whether the defendant's belief and the need to use deadly force was reasonable.
"The defendant acted in imperfect self-defense or imperfect defense of another if, one, the defendant actually believed that he or someone else was in imminent danger of being killed or suffering great bodily injury; and, two the defendant actually believed that the immediate use of deadly force was necessary to defend against the danger, but, three, at least one of those beliefs was unreasonable.
"Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. In evaluating the defendant's beliefs, consider all of the circumstances as they were known and appeared to the defendant.
"A danger is imminent if when the fatal wound occurred, the danger actually existed or the defendant believed it existed. The danger must seem immediate and present so that it must be instantly dealt with. It may not be merely prospective or in the near future.
"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.
"If you find Jose Estrada Jr. threatened or harmed the defendant or others in the past, you may consider that information in evaluating the defendant's beliefs. [¶] . . . [¶]
"Great bodily injury means a 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 defendant was not acting in imperfect self-defense or imperfect defense of another. If the People have not met this burden, you must find the defendant not guilty of murder."
Vargas challenges CALCRIM No. 571 here, arguing that the instruction "nowhere makes it clear that voluntary manslaughter can lie even where intent to kill is not present." In other words, Vargas argues that CALCRIM No. 571 should include some statement that informs the jury that a killing in imperfect self-defense, whether intentional or in conscious disregard of life, is voluntary manslaughter.
In People v. Genovese (2008) 168 Cal.App.4th 817 (Genovese), the defendant challenged CALCRIM No. 571 in the same fashion Vargas does here. (Genovese, supra, at p. 825.) The jury in Genovese was instructed with the same principles of murder and voluntary manslaughter as Vargas's jury was instructed. The jury in Genovese was told " '[a] killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion.' " (Id. at p. 831; italics omitted.) Based on this language the court explained: "The killing could not 'otherwise be murder' unless the jury found defendant intended to kill the victim or acted with conscious disregard for human life, and the jury was so informed in the instruction defining murder (i.e., that to prove murder, the prosecution must prove defendant acted with malice aforethought, and there are two kinds of malice aforethought—express, which requires intent to kill, and implied, which requires conscious disregard for human life)." (Id. at pp. 831-832.) The court rejected the defendant's argument that, once the jury determined express or implied malice was present, it was not told it could still find the defendant guilty of voluntary manslaughter if it believed he acted in the heat of passion. The court noted the plain language of the instructions informed the jury that a killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant acted on a sudden quarrel or in the heat of passion. (Id. at p. 832.)
As in Genovese, supra, 168 Cal.App.4th 817, the trial court here relied on the appropriate pattern instructions to explain to the jury that a killing "that would otherwise be murder" is reduced to voluntary manslaughter if the defendant killed a person during a sudden quarrel or in the heat of passion and that the killing could not "otherwise be murder" unless the jury found the defendant either had intended to kill the victim or acted with conscious disregard for human life. Further, the jury was told multiple times that the presence of provocation served to reduce murder to voluntary manslaughter. Therefore, the court's instructions correctly informed the jury that a killing on a sudden quarrel or in the heat of passion, is voluntary manslaughter.
We find the reasoning in Genovese, supra, 168 Cal.App.4th 817 persuasive and conclude CALCRIM No. 571 correctly states the law. Thus, we find no error in general in that the trial court provided that instruction.
However, Vargas crafts an additional argument that makes his case somewhat different than what the court addressed in Genovese, supra, 168 Cal.App.4th 817. Here, Vargas complains that the trial court specifically told the jury that voluntary manslaughter is a specific intent crime as part of the modified concurrence instruction (CALCRIM No. 252).
In discussing the potential jury instructions, the trial court pointed out that the crime of manslaughter needed to be added to CALCRIM No. 252 because it was a specific intent crime. Both the prosecutor and defense counsel agreed to modify the instruction. The court thus instructed the jury per CALCRIM No. 252 as follows:
"The crime and other allegations charged in Count 1 require proof of the union or joint operation of act and wrongful intent. The following allegation requires general criminal intent, personal use of a deadly or dangerous weapon, as charged in Count 1. For you to find the allegation true, that person must not only commit the prohibited act, but must do so with wrongful intent.
" A person acts with wrongful intent when he or she intentionally does a prohibited act. However, it is not required that he or she intend to break the law.
"The act required is explained in the instructions for that allegation.
"The following crimes require a specific intent or mental state, murder, as charged in Count 1, and manslaughter, a lesser crime to murder.
"For you to find a person guilty of these crimes, that person must not only intentionally commit the prohibited act, but must do so with a specific intent or mental state. The act and the specific intent or mental state required are explained in the instruction for those crimes."
Vargas claims the modified CALCRIM No. 252 instruction was incorrect because voluntary manslaughter is not only a specific intent crime, but can be committed when the defendant acts with conscious disregard for life. We agree. (See Blakely, supra, 23 Cal.4th at p. 91 ["We conclude that only that a defendant who, with the intent or with conscious disregard for life, unlawfully kills in unreasonable self-defense is guilty of voluntary manslaughter."]; Martinez, supra, 154 Cal.App.4th at p. 336 ["[V]oluntary manslaughter can be committed either with an intent to kill or with conscious disregard for human life-specific intent is not always a required element."].) Therefore, Vargas maintains that the court committed prejudicial error when it improperly instructed the jury under CALCRIM No. 252.
In support of his position, Vargas asserts Martinez, supra, 154 Cal.App.4th 314 is instructive. In that case, the defendant killed a mini-market clerk during a fight. (Id. at pp. 319-321.) He was convicted of second degree murder. On appeal, the defendant argued, among other issues, that the court's reference to voluntary manslaughter as a specific intent crime, within CALCRIM No. 252, was improper. However, the court noted that earlier in the CALCRIM No. 252 instruction, the court has instructed the jury that voluntary manslaughter could be a general intent crime as well if the defendant committed the act without the intent to kill, but with conscious disregard for human life. (Martinez, supra, at p. 336.) The appellate court determined that the modified CALCRIM No. 252 instruction was proper, but stated that even if the instruction could be construed as requiring the jury to find a specific intent to kill for manslaughter, and such instruction was improper, the failure to properly instruct the jury on voluntary manslaughter was not prejudicial error. (Martinez, supra, at p. 337.) In support of its conclusion, the court observed that the trial court properly instructed the jury on the elements of murder, including express and implied malice, and on the elements of voluntary manslaughter under both the theories of heat of passion and imperfect self-defense. Accordingly, the court concluded that any confusion among the jurors as to the differences between murder and voluntary manslaughter was minimal. (Id. at p. 337.)
In insisting that we should follow Martinez, supra, 154 Cal.App.314, Vargas claims that the appellate court there found the instruction was not prejudicial because the trial court also instructed that voluntary manslaughter could be a general intent crime. Vargas misreads Martinez. In that case, the court found the CALCRIM No. 252 instruction was proper. Nevertheless, it assumed the instruction was improper (i.e., instructed the jury that voluntary manslaughter was only a specific intent crime, the same as the court instructed the jury in the instant matter), but determined the error was not prejudicial because: (1) the court properly instructed the jury on the elements of murder and manslaughter in addition to CALCRIM No. 252 and (2) under the evidence presented at trial, it was unlikely the jury would have returned a different verdict had the claimed instructional error not occurred. (Martinez, supra, at p. 337.) In this sense, Martinez is helpful here, just not the way Vargas advocates.
In the instant matter, by instructing the jury that involuntary manslaughter is a specific intent crime, without explaining that it also can be a general intent crime, the court erred. (See Blakely, supra, 23 Cal.4th at p. 91; Martinez, supra, 154 Cal.App.4th at p. 336.) We therefore must determine if the error was prejudicial. To do so, we evaluate the instructional error under the standard set forth in People v. Watson (1956) 46 Cal.2d 818. (Martinez, supra, at p. 337.) A conviction of the charged offense may be reversed in consequence of an instructional error only if it appears more reasonably probable that the defendant would have obtained a more favorable outcome had the error not occurred. (Watson, supra, at p. 836; People v. Lasko (2000) 23 Cal.4th 101, 111.)
In the instant action, like in Martinez, the court properly instructed the jury on the elements of murder, express and implied malice, and the elements of voluntary manslaughter under both theories of heat of passion and imperfect self-defense. Explicitly, the jury was instructed that the prosecution had to prove that Vargas did not kill Estrada in the heat of passion or imperfect self-defense to prove murder. Thus, like the court in Martinez, we too conclude that any confusion caused by the incorrect CALCRIM No. 252 instruction was minimal, and the jury understood the differences between murder and voluntary manslaughter. (Martinez, supra, 154 Cal.App.4th at p. 337.)
Moreover, in the light of the evidence, it is unlikely that the jury would have returned a different verdict had the instructional error not occurred. Vargas accompanied Banuelos in looking for Estrada. After finding Estrada, they chased after him until they cornered him in a backyard where Vargas stabbed Estrada. Then Vargas and Banuelos again fought with Estrada in a nearby vacant lot, and Vargas stabbed Estrada multiple times, ultimately killing him.
The jury also heard evidence after the killing that strongly supported Vargas's conviction for second degree murder. Vargas fled the scene of the crime, got rid of the knife and his bloody sweatshirt, and tried to create an alibi with his brother. In the getaway car, Vargas said, "I got him. I got him good." Vargas also advised Banuelos and Vega not to talk about what happened. And, the day after the killing, Vargas's brothers went to Banuelos and Vega's apartment and asked them questions about Dexter. The Vargases believed that Dexter was talking to someone about the killing, and they wanted to find Dexter and give him a lethal dose of heroin or similar type of drug.
In addition, the jury was instructed that "[t]he People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense or imperfect defense of another. If the People have not met this burden, you must find the defendant not guilty of murder." The jury concluded the prosecutor proved that Vargas was not acting in imperfect self-defense, and thus, convicted him of second degree murder. Against this backdrop, there was ample evidentiary support for the guilty verdict of second degree murder such that it is not reasonably probable that Vargas would have obtained a more favorable outcome had the concurrence instruction included the statement that voluntary manslaughter can be a general intent crime. Therefore, any error in the instruction was harmless.
D. CALCRIM No. 3472
Vargas claims an instructional error with respect to CALCRIM No. 3472 (Right to Self-Defense: May Not Be Contrived). Per that instruction, the jury was told: "A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force." Vargas argues the instruction's categorical language erroneously told the jury that Vargas forfeited his claim to self-defense if he provoked the fight with the intent to create an excuse to use force.
Vargas suggests the instruction foreclosed the jury from considering the following version of events. Vargas accompanied Banuelos in going after Estrada, but he had no intent to kill Estrada. Instead, he was backing up Banuelos, who he believed would get in a fistfight with Estrada. When they caught up to Estrada, however, Estrada attacked them with a shovel. Estrada beat Vargas to the ground, causing Vargas to fear for his life so he took out his work knife that he always carried on his person. In self-defense, Vargas stabbed Estrada with his knife and then stabbed him again after Estrada had him down on the ground and continued to hit him with the shovel. We disagree with Vargas that CALCRIM No. 3472 prevented the jury from considering his version of events.
We recognize that the categorical terms of CALCRIM No. 3472 may not be correct in all circumstances. A defendant may have a claim to self-defense if he provokes a fight using only nondeadly force, and the victim unlawfully responds with deadly force. (People v. Vasquez (2006) 136 Cal.App.4th 1176, 1179-1180.) Alternatively stated, when an adversary suddenly escalates a confrontation to deadly violence in response to a defendant's use of nondeadly force, the defendant may still invoke self-defense. (People v. Frandsen (2011) 196 Cal.App.4th 266, 273 ["Only when the victim resorts to unlawful force does the defendant-aggressor regain the right of self-defense." (Italics omitted.)].) Thus, a defendant does not forfeit his right to self-defense in all cases in which he seeks a fight while intending to create an excuse to use force.
Although CALCRIM No. 3472 read alone seems to foreclose a claim of self-defense whenever a defendant provokes a fight, we must examine the instructions as a whole and presume the jury correlated the instructions. (People v. Houston (2012) 54 Cal.4th 1186, 1229-1230; People v. Sanchez (2001) 26 Cal.4th 834, 852.) And the court here correctly instructed the jury on when self-defense is still available to a defendant who is the initial aggressor.
The court instructed the jury with CALCRIM No. 3471 (Right to Self-Defense: Mutual Combat or Initial Aggressor), which stated in pertinent part: "[I]f the defendant used only 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, or communicate the desire to stop to the opponent or give the opponent a chance to stop fighting." The jury was therefore aware that if Vargas used only nondeadly force, and Vargas believed Estrada was responding with sudden and deadly force, Vargas could claim he responded with deadly force in self-defense. We do not think there is a reasonable likelihood the jurors applied CALCRIM No. 3472 in an impermissible manner, when read in context with CALCRIM No. 3471. (People v. Houston, supra, 54 Cal.4th at p. 1229.)
Vargas also claims the trial court prejudicially erred by instructing the jury under CALCRIM No. 3471 because that instruction was not supported by substantial evidence. We reject this argument as explained below.
Here, to support his argument, Vargas primarily relies on the majority decision in Ramirez, supra, 233 Cal.App.4th 940, but as we shall explain, his reliance is misplaced. The court in Ramirez acknowledged that "CALCRIM No. 3472 states a correct rule of law in appropriate circumstances." (Ramirez, supra, at p. 947.) But the facts and arguments before the jury in Ramirez erroneously required the jurors to conclude the defendants had entirely forfeited any right to self-defense. (Id. at p. 953.) The evidence established two codefendants had provoked a fistfight with rival gang members. (Id. at p. 944.) One of the defendants testified that he stepped back from the melee and saw a rival walking toward him; he thought the rival had something black in his hand that looked like a gun, and the rival raised his hand. The defendant then drew a gun from his sweatshirt pocket and fatally shot the rival. (Id. at p. 945.) The trial court instructed the jury with both CALCRIM Nos. 3471 and 3472. (Ramirez, supra, at pp. 945-946.)
The court found the prosecutor repeatedly misstated the law of self-defense during closing argument by arguing that, based on CALCRIM No. 3472, the codefendants' use of any force—"even nondeadly fisticuffs"—forfeited any claim of self-defense. (Ramirez, supra, 233 Cal.App.4th at pp. 943, 946, 950, 952.) The prosecutor repeatedly argued " 'it doesn't matter' " whether, under CALCRIM No. 3471, the victim escalated a nondeadly conflict to deadly proportions. (Ramirez, supra, at pp. 943, 946, 950, 952.) And when defense counsel argued in closing that the defendant regained a right to defend himself if he truly believed the gang rival had suddenly escalated the fistfight to a gunfight, the prosecutor responded by invoking CALCRIM No. 3472 and arguing, " '[Y]ou cannot have the princip[le] to mitigate from murder to voluntary manslaughter . . . when you are the one who created the circumstances to begin with. It makes sense. It's fair. It's just. More importantly, it's the law.' " (Ramirez, supra, at pp. 946-947.) The prosecutor argued the categorical terms of CALCRIM No. 3472 trumped the right to self-defense explained in CALCRIM No. 3471. (Ramirez, supra, at p. 948.) The appellate court reiterated the repeated arguments by counsel numerous times, and the prosecutor's closing argument was a substantial factor in the court's holding of prejudicial error. (See id. at pp. 943, 947, 953.)
Ramirez, supra, 233 Cal.App.4th 940 is distinguishable from the instant action. The substantially aggravating factor of the prosecutor repeatedly misleading the jury on the law, that is, telling the jury that it did not matter whether the victim escalated a nondeadly conflict to deadly proportions is not present in the instant action. Here, the prosecutor did argue that based on CALCRIM No. 3472, Vargas was not defending himself because he chased after Estrada, armed with a knife, with the intent to kill Estrada. The prosecutor therefore argued that it was Estrada, not Vargas, who acted in self-defense. He emphasized, "Self-defense does not allow -- does not provide justification for the killer if he intended to kill. . . . [Vargas] went hunting. He brought a deadly weapon. He chased after the victim, and the victim fought for his own life." Accordingly, the prosecutor did not tell the jury that Estrada's conduct did not matter. Instead, he insisted Vargas could not have actually believed in imminent harm from Estrada.
Considering the evidence proffered at trial, the totality of the jury instructions, and the prosecutor's closing argument, there was no instructional error under CALCRIM No. 3472. At trial in the instant matter, the jury was not required to conclude if Vargas sought a nondeadly confrontation with Estrada, he forfeited the right to self-defense even if the victim resorted to deadly force.
E. CALCRIM No. 3471
Vargas's final argument challenging the jury instructions is that substantial evidence did not support the giving of CALCRIM No. 3471. We reject this contention.
At trial, without objection, the trial court instructed the jury under CALCRIM No. 3471 as follows:
"A person who engages in mutual combat or starts a fight has a right to self-defense only if, one, he actually and in good faith tried to stop fighting; and, two, he indicated by word or by conduct to his opponent in a way that a reasonable person would understand that he wanted to stop fighting and that he had stopped fighting; and three, he gave his opponent a chance to stop fighting.
"If the defendant meets these[] requirements, he then had a right to self-defense if the opponent continued to fight.
"However, if the defendant used only nondeadly force and the opponent responded with 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 or 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 claimed self-defense arose."
Here, Vargas argues the above instruction was given in error because there was no substantial evidence that he and Estrada agreed in advance to combat as required by the instruction. To this end, Vargas maintains People v. Ross (2007) 155 Cal.App.4th 1033 (Ross) is dispositive on this issue.
In Ross, supra, 155 Cal.App.4th 1033, the appellate court found reversible error in an instruction that barred self-defense if the parties engaged in "mutual combat" in a case where there was no evidence of mutual combat. There, the court stated, " '[M]utual combat' consists of fighting by mutual intention or consent, as most clearly reflected in an express or implied agreement to fight. . . . [T]here must be evidence from which the jury could reasonably find that both combatants actually consented or intended to fight before the claimed occasion for self-defense arose." (Id. at pp. 1046-1047, italics omitted.) "The mutuality triggering the doctrine inheres not in the combat but in the preexisting intent to engage in it. Old but intact case law confirms that as used in this state's law of self-defense, 'mutual combat' means not merely a reciprocal exchange of blows but one pursuant to mutual intention, consent, or agreement preceding the initiation of hostilities." (Id. at p. 1045, italics omitted.)
The trial court in Ross also had failed to define the term mutual combat when asked for a definition by the jury. The appellate court noted, "This left the jury free to suppose that any exchange of blows disqualifies both participants from claiming a right of self-defense. In fact the doctrine applies only to a violent confrontation conducted pursuant to prearrangement, mutual consent, or an express or implied agreement to fight. Since the evidence here was insufficient to establish any such arrangement or agreement, and there was a substantial basis for the jury to find that defendant may have acted in self-defense when he struck the blow on which the verdict was based, we find it reasonably probable that a properly instructed jury would have returned a verdict more favorable to defendant. We therefore reverse the judgment." (Ross, supra, 155 Cal.App.4th at p. 1036.)
Comparing his case to Ross, supra, 155 Cal.App.4th 1033, Vargas argues "there was no evidence in the instant case that Estrada and Vargas ever expressed an agreement to engage in a fight." Instead, Vargas maintains that there was evidence to support opposing theories regarding who started the fight between the two men. According to Vargas, the prosecution characterized Vargas as the aggressor and the initiator of the physical confrontation. To this end, the prosecutor emphasized that Vargas, armed with a knife, along with Banuelos, hunted for Estrada with the intent to kill him. Indeed, Vargas stabbed Estrada multiple times, including after Vargas would have been able to escape the confrontation. In contrast, Vargas emphasizes Estrada's threatening behavior before the deadly altercation. Accordingly, Vargas mentions the initial interaction between the two men, where Estrada yelled at Vargas, pushed him, and then shot at him. He also points out that Estrada returned to Banuelos's apartment the night before his death, armed with a gun and threatening Vargas, saying he was looking for him. And on the next day, Estrada showed up at Banuelos's apartment and damaged the front door while screaming threats at Vargas. Vargas claims it is within this context, his actions with Banuelos must be viewed, in that, he accompanied Banuelos in seeking Estrada, intending to back up Banuelos as he engaged in a fistfight with him. Thus, according to Vargas, neither the prosecution's version of events nor his own supports the giving of a mutual combat instruction.
However, Vargas's argument limits the jury's function to a binary choice between opposing narratives. In other words, if the jury accepted the prosecution's theory of the case, there was no evidence of mutual combat. If the jury believed the defense, there was no evidence of mutual combat. Yet, the jury was not bound to accept in total either version. Indeed, the jury clearly did not do so as it rejected both the prosecution's theory of first degree murder and defense's theory of self-defense. Moreover, the jury could have accepted portions of the evidence presented, ultimately concluding that Estrada's conduct before his death indicated his desire to engage in combat with Vargas. And, Vargas's decision to look for Estrada with Banuelos underscored his willingness to fight Estrada. The evidence here thus was sufficient to establish an implied agreement to fight, and the trial court did not error in instructing the jury under CALCRIM No. 3471.
Additionally, as the People observe, CALCRIM No. 3471 does not just cover mutual conduct, but addresses the situation where the initial aggressor is not entitled to claim self-defense unless certain conditions are met. Substantial evidence supports the giving of this instruction for this circumstance as well.
F. Conclusion
Here, Vargas did not object to or request additional clarifying instructions for any of the jury instructions he now challenges. As discussed above, we conclude that the trial court did not error in instructing the jury under CALCRIM Nos. 571, 3471, and 3472. In addition, to the extent the court erred in giving the modified CALCRIM No. 252 instruction, such error was harmless. Consequentially, we determine that Vargas's substantial rights were not harmed by the instructions he challenges in the instant matter. Therefore, he has forfeited his jury instruction claims on appeal. (People v. Flood, supra, 18 Cal.4th at p. 482, fn. 7.) To the extent, Vargas tries to avoid forfeiture by arguing his trial counsel was constitutionally ineffective, we need not address that issue because we considered the merits of Vargas's claims. (See People v. Andersen, supra, 26 Cal.App.4th at p. 1249.)
II
INEFFECTIVE ASSISTANCE OF COUNSEL
A. Vargas's Contention
Vargas maintains his trial counsel was constitutionally ineffective because he failed to impeach Vega during trial with the transcript of her testimony at the preliminary hearing.
B. Background
During her cross-examination, Vega said that she did not remember Banuelos telling her, after the April 17 incident, that Estrada had the upper hand on Vargas. Vega also testified that she did not recall admitting that fact in a prior hearing.
However, Vega testified at the preliminary hearing. As relevant here, Vega testified during that hearing as follows:
"Q. And did he [Banuelos] tell you that Mr. Estrada become violent with him?
"A. Yes, that they had an altercation. They were fighting.
"Q. Did he tell you that Mr. Estrada had swung a shovel at him?
"A. Not that I recall.
"Q. But he did tell you that they -- that Mr. Estrada began to fight with him?
"A. Yes.
"Q. And Mr. Banuelos told you that he, himself, Mr. Banuelos, disengaged or stopped fighting with Mr. Estrada, correct?
"A. Yes.
"Q. And at some point closely around at that same time Mr. Vargas had caught up and engaged with Mr. Estrada?
"A. Correct.
"Q. And he, Mr. Banuelos, actually told you that Mr. Estrada was fighting Mr. Vargas, correct?
"A. Correct.
"Q. And that Mr. Estrada at some point had the upper hand on Mr. Vargas, correct?
"A. Correct.
"Q. And did Mr. Banuelos tell you that he had seen Mr. Estrada with a shovel hitting Mr. Vargas?
"A. Not that I recall.
"Q. Did Mr. Banuelos also tell you [he] had been present the entire time?
"A. Yes."
At trial, defense counsel did not impeach Vega with her preliminary hearing testimony.
C. Analysis
To show that trial counsel's performance was constitutionally defective, an appellant must prove: (1) counsel's performance fell below the standard of reasonableness, and (2) the "deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) It is the defendant's burden to prove the inadequacy of trial counsel, and defendant's burden is difficult to satisfy on direct appeal. Competency is presumed unless the record affirmatively excludes a rational basis for trial counsel's choice. (People v. Ray (1996) 13 Cal.4th 313, 349; People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.)
The United States Supreme Court explained that "[j]udicial scrutiny of counsel's performance must be highly deferential [because] [i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." (Strickland, supra, 466 U.S. at p. 689.) Thus, the court explained, reviewing courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " (Ibid.; see People v. Lucas (1995) 12 Cal.4th 415, 437, quoting Strickland, supra, at p. 689 ["[T]here is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' "].) We reverse on the ground of inadequate assistance only if the record affirmatively discloses no rational tactical purpose for counsel's act or omission. (Lucas, supra, at pp. 436-437.)
Here, the record does not provide us with sufficient information from which we could determine whether Vargas met his burden to show ineffective assistance of counsel. Although Vargas argues "it is inconceivable that counsel would have had any tactical reason for failing to present evidence that Banuelos told . . . Vega Estrada had gotten the upper hand over Vargas[,]" the record is silent as to why defense counsel did not use Vega's preliminary hearing testimony for impeachment. For example, perhaps defense counsel did not use Vega's preliminary hearing testimony because she stated that Banuelos did not tell her Estrada was wielding a shovel during the altercation. We simply do not know on the record before us. Thus, a challenge based on ineffective assistance of counsel might better lie in a petition for a writ of habeas corpus than on direct appeal. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
In addition, even if Vargas could meet the first prong of the test for ineffective assistance of counsel, he cannot meet his burden to show he "suffered prejudice to a reasonable probability." (People v. Johnson (2016) 62 Cal.4th 600, 653.) Vargas insists the result might have been different had the jury heard that Vega testified at the preliminary hearing "that Estrada had gotten the upper hand over Vargas with the shovel[.]" But Vega did not testify that Banuelos told her that Estrada had attacked Vargas with a shovel. Indeed, during the preliminary hearing, she did not recall if Banuelos had told her Estrada was hitting Vargas with a shovel. Thus, Vega's preliminary hearing testimony could not establish the facts necessary to support Vargas's claim of prejudice.
III
PRIOR JUVENILE ADJUDICATIONS AS STRIKES
Citing the Ninth Circuit Court of Appeal's decision in United States v. Tighe (9th Cir. 2001) 266 F.3d 1187 and the United States Supreme Court's decision in Apprendi v. New Jersey (2000) 530 U.S. 466, Vargas contends that the use of two juvenile adjudications as prior strike convictions violated the Sixth, Eighth, and Fourteenth amendments because "a proper interpretation of United States Supreme Court precedent bars using juvenile adjudications to enhance a substantive offense sentence."
However, as Vargas acknowledges, a similar argument was rejected in People v. Nguyen (2009) 46 Cal.4th 1007 at page 1028. Vargas implies Nguyen was wrongly decided and that it cannot be reconciled with In re W.B. (2012) 55 Cal.4th 30. But W.B. did not address using juvenile adjudications as prior strikes. Nor did that case discuss or even mention Nguyen. Nguyen thus remains precedent. We are bound to follow it (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), but note Vargas's preservation of the issue for further review.
IV
CUMULATIVE ERROR
Finally, Vargas argues the cumulative effect of the alleged errors at his trial requires reversal of his conviction, even if none alone were individually prejudicial. As we have found no substantial error in any respect, this argument must be rejected. (People v. Butler (2009) 46 Cal.4th 847, 885.)
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. AARON, J.