Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCE265328, Larrie R. Brainard, Judge.
Benke, Acting P. J.
A jury convicted defendant Artemis Lamont Whalum of assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (c)) and two counts of resisting an officer by force or violence (§ 69). In a bifurcated bench trial, the court found true that Whalum had suffered three prison priors (§ 667.5, subd. (b)), a serious felony prior (§ 667, subd. (a)(1)) and a strike prior (§ 667, subds. (b)-(i)). The court sentenced Whalum to 17 years 4 months in prison.
All further statutory references are to the Penal Code unless otherwise specified.
The jury hung on all counts at Whalum's first trial.
On appeal, Whalum raises two issues. First, he claims the trial court abused its discretion when it permitted him to be impeached with prior felony convictions because the prior convictions were not crimes of moral turpitude, were too remote in time from the charged offenses and were unduly prejudicial. Second, Whalum claims the trial court erred in failing to instruct sua sponte on the defenses of unconsciousness and accident. For the reasons discussed below, we reject Whalum's claims and affirm the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
We view the evidence in the light most favorable to the judgment of conviction. (People v. Gaut (2002) 95 Cal.App.4th 1425, 1427.) Certain portions of the factual and procedural history related to Whalum's claims of error are discussed post, in connection with those issues.
A. Prosecution Case
In early October 2006 at around 12:30 p.m., El Cajon Police Officers Brian Ehlers and Darren Ehlers responded to a domestic disturbance call at the Villa Serena motel, located on El Cajon Boulevard in El Cajon, California. The officers contacted Charlene Lizamo outside the motel. Lizamo explained she was having a dispute with Whalum, who was in one of the motel rooms. Officer Brian knocked on Whalum's door, located on the second floor of the motel. Whalum identified himself to the officer as "Travis DuJuan Johnson." The officers instructed Lizamo to leave the motel area and left without making an arrest.
Officers Brian and Darren Ehlers are brothers. For clarity, we refer to them as "Officer Brian" and "Officer Darren."
About an hour later, there was a second domestic disturbance call from the same location. Officers Brian and Darren again responded, this time accompanied by a third officer, Officer Jacob Cutting, and a psychiatric nurse who had been assigned to ride as an observer with Officer Darren. Officer Brian knocked on the door of Whalum's motel room and obtained his permission to enter the room.
Officer Cutting recognized Whalum from a previous encounter. In 2005 Officer Cutting and his partner responded to a call involving, among others, Whalum. In that incident, Whalum ran from the officers. After catching up with Whalum, Officer Cutting's partner tasered Whalum three times and Officer Cutting kicked Whalum once.
When the officers arrived at the motel a second time, Whalum repeated the name "Travis Johnson" he had given them earlier that day. In response, Officer Cutting told Whalum that was not his real name. Undeterred, Whalum reiterated his name was Travis Johnson. To jog his memory, Officer Cutting reminded Whalum of the 2005 tasing incident, told Whalum he knew he was on parole and that Travis Johnson was not his real name.
Officer Cutting observed Whalum's demeanor change. The officer told Whalum to sit down on the bed, and then ran records checks of Whalum. Police dispatch told the officers Whalum was a "parolee at large" and considered "armed and dangerous." The officers also confirmed Whalum's identity with dispatch by comparing his tattoos with documented tattoos of Whalum.
As Whalum sat on the bed, he began to tremble; he clenched his fists and began looking around at the officers and doorway. Despite the officers' orders that he remain seated, Whalum stood up several times. Whalum told the officers they were making him nervous and that he did not want to go back to prison. The officers attempted to calm Whalum. Officer Cutting told Whalum not to fight back or else Whalum would be tasered.
Because Whalum was a parolee at large and considered "armed and dangerous," the officers began to handcuff Whalum. While Whalum was sitting on the corner of the motel bed, Officer Brian approached Whalum's left arm and Officer Cutting approached his right arm. Whalum tensed his arm and prevented Officer Brian from handcuffing him. Officer Brian told Whalum not to resist or tense up. Officer Brian again attempted to place Whalum in handcuffs. Whalum, who is approximately six feet, three inches tall and of a muscular build, stood up quickly, pulled his arms away from the officers and ran for the door.
With his fists swinging, Whalum charged towards Officer Darren, who was standing in the doorway holding his taser gun. Because Whalum was so close to Officer Darren when he fired his taser, the tasing wires did not completely attach to Whalum. Using his forearm, Whalum pushed Officer Darren into the railing outside the motel room. The railing flexed and Officer Darren feared he could fall over the railing and down two stories to the cement floor below. Whalum ran down the stairs. Officer Cutting and Officer Brian pursued Whalum on foot. Officer Darren, entangled in his taser gun wires, followed from a distance.
Whalum ran onto El Cajon Boulevard. Officer Cutting followed approximately 10 feet behind and Officer Brian followed both of them. As Whalum and Officer Cutting turned left onto Wilson Street, Officer Cutting caught Whalum and pulled out his baton. Whalum approached a pickup truck stopped at an intersection, turned towards Officer Cutting and put up his fists in a fighting posture. Officer Cutting caught up to Whalum and struck Whalum with the baton several times in the legs and lower torso.
Whalum jumped into the bed of the truck. Whalum banged on the roof of the truck and yelled at the driver to "fucking drive" in an attempt to get the driver to accelerate. Officer Cutting continued to swing his baton, landing some hits on Whalum. Whalum ripped the baton from Officer Cutting's hands, raised it up and began bringing the heavy end of the baton down, towards Officer Cutting's head. Officer Cutting immediately drew his service weapon and shot Whalum twice in the chest. Simultaneously, Officer Brian, standing on the opposite side of the truck, tasered Whalum.
B. Defense Case
Whalum testified at trial that once Officer Cutting reminded him of the 2005 incident, he immediately remembered Officer Cutting. In 2005, while visiting at a friend's house, a fight broke out that did not involve Whalum. When police responded, Whalum ran from the house because he was on parole and he did not want to undergo a parole search. An officer pursued Whalum and tasered him three times. Whalum fell to the ground from the taser shots and Officer Cutting, one of the officers who had responded to the fight, kicked him in the face. During the 2005 incident, Whalum also told police his name was "Travis Johnson" because he was a parolee.
Whalum testified Officers Brian, Darren and Cutting contacted him at his Villa Serena motel room after his former girlfriend started banging (for a second time) on his front door and windows, screaming and yelling at Whalum because he refused to take her to get something to eat. Whalum sometimes uses his cousin's name "Travis Johnson" to avoid parole searches. Because two of the officers had already been called to the motel earlier that day, they mentioned in front of Officer Cutting that Whalum's name was Travis Johnson. When Whalum confirmed to them that was in fact his name, Officer Cutting said he had arrested Whalum about a year earlier and that Travis Johnson was not Whalum's true name.
The officers told Whalum to sit on the motel bed and place his hands behind his back so they could handcuff him while they determined his true identity. Whalum testified he sat on the bed and put his hands behind his back as instructed.
Despite his compliance, Whalum testified one of the officers unexpectedly put his hands on Whalum's shoulders and forcibly tried to put Whalum's hand in a "wrist lock," which surprised Whalum and caused him to stand up. Whalum testified he also was concerned about Officer Cutting, now that he remembered him. Although Whalum claimed he was doing everything the officers asked of him, when Whalum stood up Officer Darren shot Whalum in the chest with the taser. However, the taser did not work. Whalum testified he ran towards the door where Officer Darren was standing, but neither hit or pushed the officer, nor did he try to push him over the railing.
Whalum ran onto the street. Eventually, Officer Cutting caught up to Whalum and struck Whalum with a baton in the head, back and ribs. Whalum testified he stopped running and put his hands up to surrender, but Officer Cutting continued to strike him with the baton. Whalum used his hands to block Officer Cutting's swings but did not try to take the baton from the officer.
Because Officer Cutting continued to strike Whalum with the baton even after Whalum stopped running, Whalum jumped into the bed of a pickup truck that was stopped at an intersection and yelled to the driver "go, go, go." Officer Cutting continued to strike Whalum as he lay in the bed of the pickup truck, which remained stopped. At some point, however, Officer Cutting dropped the baton into the bed of the truck. Whalum testified he quickly grabbed the baton, came to his knees and lifted the baton in a nonthreatening manner, explaining he had no intention of striking Officer Cutting with it.
Robert Rowe, Whalum's next-door neighbor at the time of the incident, testified he heard police respond twice to a disturbance outside of Whalum's room when Whalum's then-girlfriend banged on Whalum's door and screamed at him to let her into the room. During the second call, Rowe left to take a walk because he was tired of the commotion. While on his walk, Rowe saw Whalum running from a police officer and jump into the back of a truck that was stopped at an intersection. Rowe, who was about 10 feet away from the truck, heard Whalum yell to the truck driver "go, go, go," saw the officer reaching over the bed and trying to hit Whalum with the baton as Whalum was lying down in the truck's bed and then noticed Whalum with the baton. Rowe saw the police officer that had been striking Whalum take five or six steps backward, out of range of the baton, and draw his weapon. Next, he saw Whalum get to his knees while in the truck and raise the baton in the air. Rowe did not see Whalum swing the baton, however. He heard the officer tell Whalum to stay down, and within a few seconds saw one officer shoot Whalum and another officer taser him.
During cross-examination, Rowe admitted that two or three hours after the initial incident he gave police a written statement where he stated that a "black man grabbed the night stick and was trying to hit the officer when the officer shot him" and that the police officer "kept telling the man to get down, but the man kept fighting him." Rowe also had told investigators that night that at some point while the man was in the bed of the truck, the "guy grabbed the night stick from the cop and went to swing it at him," and that the officer was "real close to the defendant when the defendant was in that motion where he was about to strike." At trial, however, Rowe testified he also could not remember telling investigators the officer was "real close" to the man, because he said the officer had stepped backwards. He also testified that while the man raised the baton in a threatening way, he could not remember the man actually swinging the baton at the police officer. The jury heard this evidence and determined what weight, if any, it should be afforded when it found Whalum guilty of assault with a deadly weapon on a peace officer (§ 245, subd. (c)), and resisting an officer by force or violence (§ 69), findings that have not been directly challenged by Whalum in this appeal. (See People v. Barnes (1986) 42 Cal.3d 284, 303 [it is the jury's role to determine the credibility of witnesses and the truth or falsity of facts upon which a determination depends].)
DISCUSSION
I
Impeachment Evidence of Prior Convictions
Whalum claims the trial court abused its discretion when it permitted Whalum to be impeached with four of his prior convictions. Whalum claims his prior convictions should have been excluded because they were remote, did not constitute crimes of moral turpitude and were unnecessary to prevent giving him an "aura of veracity" in light of his parole status. (See People v. Muldrow (1988) 202 Cal.App.3d 636, 646.) We disagree.
A. Procedural Background
Prior to trial, Whalum requested the trial court exclude his prior convictions in the event Whalum chose to testify. Specifically, Whalum sought to exclude four prior convictions: robbery in 1991, taking a vehicle without consent in 1999, drug sales in 2002 and resisting an officer by force or violence in 2004.
Whalum argued the 1991 robbery conviction should be excluded because he committed the offense as a juvenile. Whalum further argued the 1999 conviction for auto theft should be excluded because of its age and lack of probative value. Whalum made no argument as to the 2002 drug sales conviction and conceded the 2004 resisting an officer would likely be admissible for impeachment purposes.
The prosecutor argued the 1991 robbery conviction should be admissible for impeachment purposes given the seriousness of the offense and because Whalum had used a gun in its commission. The prosecutor conceded the drug sales conviction was not a crime of moral turpitude, but argued that both the taking a vehicle and resisting an officer convictions were such crimes and therefore admissible for impeachment.
The trial court found all four convictions admissible for impeachment, rejecting Whalum's argument that the age of the convictions justified exclusion. The trial court further noted Whalum had not "had a clear period of staying out of trouble" since his prior convictions, which supported their admissibility.
During trial, Whalum once more raised the admissibility of his prior convictions for impeachment. This time, Whalum requested they be sanitized and referred to only as "felonies of moral turpitude," specifically as to the prior conviction for resisting an officer. The trial court ordered the prior conviction for resisting an officer be sanitized but determined the other three convictions would remain admissible and could be referred to explicitly.
At trial, Whalum testified in his own defense. The prosecution impeached Whalum with his 1991 armed robbery conviction, his 1999 vehicle theft conviction and his 2004 resisting an officer conviction, which the prosecution referred to only as a "crime of moral turpitude."
B. Analysis
" 'No witness including a defendant who elects to testify in his own behalf is entitled to a false aura of veracity.' " (People v. Muldrow, supra, 202 Cal.App.3d at p. 646.) Thus in determining the credibility of a witness, the jury may consider any matter that has a tendency to prove or disprove the truthfulness of his or her testimony at the hearing, including his or her character for honesty or veracity. (See Evid. Code, §§ 780, 788; People v. Harris (2005) 37 Cal.4th 310, 337.) Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the court's discretion under Evidence Code section 352. (People v. Wheeler (1992) 4 Cal.4th 284, 295-296.)
"Crimes of moral turpitude" fall into two groups—crimes in which dishonesty is an element (i.e. fraud, perjury, etc.) and crimes that indicate a " ' "general readiness to do evil," ' " from which a readiness to lie can be inferred. (People v. Chavez (2000) 84 Cal.App.4th 25, 28, quoting People v. Castro (1985) 38 Cal.3d 301, 315.) Crimes in the latter group are acts of "baseness, vileness or depravity in the private and social duties which a [person] owes to [others], or to society in general, contrary to the accepted and customary rule of right and duty between [one person] and [another person]." (In re Craig (1938) 12 Cal.2d 93, 97.)
The admission of a prior felony conviction of moral turpitude to impeach a defendant's testimony is subject to the court's discretion under Evidence Code section 352. (People v. Green (1995) 34 Cal.App.4th 165, 182.) In exercising that discretion, the court is guided by the following factors: whether the prior conviction reflects adversely on the witness's honesty or veracity, its nearness or remoteness in time, its similarity to the present offense, and the potential effect on the defendant's failure to testify. (People v. Clair (1992) 2 Cal.4th 629, 653; People v. Castro, supra, 38 Cal.3d at p. 307.) "The first factor goes to admissibility of the prior convictions, which determination the trial court must reach before exercising its discretion based on the remaining factors. [Citations.]" (People v. Green, supra, 34 Cal.App.4th at p. 182.)
The last factor is irrelevant here because Whalum testified at trial.
The court has broad discretion in determining whether to admit or exclude evidence under Evidence Code section 352 and rulings under this section will not be overturned absent an abuse of discretion. (People v. Ramos (1997) 15 Cal.4th 1133, 1170.) " ' "[D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered." ' " (People v. Green, supra, 34 Cal.App.4th at pp. 182-183.)
"California courts have repeatedly held that prior convictions for burglary, robbery, and other various theft-related crimes are probative on the issue of the defendant's credibility." (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.) "[R]obbery necessarily involves moral turpitude or the ' "readiness to do evil," ' and evinces a character trait which can reasonably be characterized as ' "immoral." ' [Citation.]" (People v. Stewart (1985) 171 Cal.App.3d 59, 64.) Likewise, auto theft "clearly involves intentional dishonesty for the purpose of personal gain" and constitutes a crime of moral turpitude. (People v. Hunt (1985) 169 Cal.App.3d 668, 675; see also People v. Zataray (1985) 173 Cal.App.3d 390, 399.)
In addition to theft-related crimes, " 'moral turpitude' " may involve " 'conduct involving violence, menace, or threat.' " (People v. Williams (1999) 72 Cal.App.4th 1460, 1464, quoting People v. Lepolo (1997) 55 Cal.App.4th 85, 90.) As such, resisting an officer in violation of section 69 is a crime of moral turpitude because it necessarily involves force, menace or threats directed at an executive officer. (Id. at p. 1465.)
Accordingly, Whalum's prior convictions for robbery, auto theft and resisting an officer constituted well-established crimes of moral turpitude and were admissible impeachment evidence subject only to an Evidence Code section 352 analysis.
The trial court also found Whalum's 2002 conviction for drug sales admissible for purposes of impeachment. While the trial court did not err (see People v. Vera (1999) 69 Cal.App.4th 1100, 1103 [drug offenses involving sale are crimes of moral turpitude because they involve an intent to corrupt others]), the prosecution elected not to impeach Whalum with this conviction.
Whalum argues his 1991 robbery conviction was remote and thus should not have been admitted for impeachment. However, "convictions remote in time are not automatically inadmissible for impeachment purposes. Even a fairly remote prior conviction is admissible if the defendant has not led a legally blameless life since the time of the remote prior. [Citations.]" (People v. Mendoza, supra, 78 Cal.App.4th at pp. 925-926; see also People v. Green, supra, 34 Cal.App.4th at p. 183 [a 20-year-old prior conviction was not too remote because the defendant had five convictions between the 20-year-old conviction and the instant charge].)
A similar pattern is present here: Whalum suffered three convictions since his 1991 robbery conviction, including one theft-related crime that is in and of itself probative of Whalum's credibility. (See People v. Green, supra, 34 Cal.App.4th at p. 183; see also People v. Mendoza, supra, 78 Cal.App.4th at p. 926 [convictions for theft-related offenses following an old conviction are probative on the issue of the defendant's credibility and thus prevent the remoteness factor from mitigating against admission for impeachment].) In light of these convictions, Whalum has not "led a legally blameless life" since 1991 (see Mendoza, supra, 78 Cal.App.4th at p. 926) and, as a result, his convictions suggest " 'a pattern that [is] relevant to [his] credibility.' " (People v. Green, supra, 34 Cal.App.4th at p. 183, quoting People v. Muldrow, supra, 202 Cal.App.3d at p. 648.) Further, while robbery and the charged crimes of assault with a deadly weapon and resisting an officer share the common element of force, the crimes are not so similar to make its admission unduly prejudicial. (See People v. Castro, supra, 38 Cal.3d at p. 307.)
Whalum's 1999 auto theft conviction is even less similar than the charged offenses. Furthermore, the auto theft conviction is far less remote than his 1991 robbery conviction. Even if the eight-year auto conviction was somewhat remote, Whalum again had a history of intervening convictions, including a 2004 conviction for resisting an officer. (See People v. Green, supra, 34 Cal.App.4th at p. 183.)
Whalum's 2004 conviction for resisting an officer, while not remote, was identical to two of the charged offenses. However, the trial court "sanitized" this conviction by instructing the prosecution to refer to it as a "prior felony." In so doing, the trial court reduced the potential prejudice of the identical prior conviction by "focus[ing] the jury's attention to how those crimes might affect [Whalum's] credibility rather than on how similar those crimes were to the crime for which he was on trial." (See People v. Gray (2007) 158 Cal.App.4th 635, 642.) While "[p]rior convictions for the identical offense are not automatically excluded" (People v. Green, supra, 34 Cal.App.4th at p. 183),and the trial court arguably could have permitted impeachment with the actual prior conviction, the trial court here reduced any risk of undue prejudice by sanitizing the conviction.
Contrary to Whalum's argument, the admission of four prior convictions for impeachment does not constitute error. Courts have placed no arbitrary limits on the number of prior convictions admissible for impeachment, and admission of multiple and identical prior convictions is permitted. (People v. Green, supra, 34 Cal.App.4th at p. 183; People v. Dillingham (1986) 186 Cal.App.3d 688, 695.) Furthermore, any potential prejudice to Whalum from the impeachment evidence was met by the trial court's limiting instruction, which instructed the jury to consider impeachment evidence "in evaluating the credibility of the witness's testimony" only. We presume the jury understood and adhered to the limiting instruction. (People v. Panah (2005) 35 Cal.4th 395, 492.)
In sum, the trial court did not abuse its discretion in permitting impeachment of Whalum with his prior convictions.
II
Failure to Instruct Sua Sponte on Unconsciousness and Accident
Whalum next claims the trial court erred in refusing to instruct sua sponte on the defenses of unconsciousness and accident. Whalum claims unconsciousness and accident were general principles closely connected with the case and thus triggered the court's sua sponte instructional duties. We disagree.
The relevant instruction relating to the unconsciousness defense, CALCRIM No. 3425, provides in pertinent part: "The defendant is not guilty of __________... if (he/she) acted while legally unconscious. Someone is legally unconscious when he or she is not conscious of his or her actions. [Someone may be unconscious even though able to move.] [¶] Unconsciousness may be caused by (a blackout...). [¶] The People must prove beyond a reasonable doubt that the defendant was conscious when (he/she) acted. If there is proof beyond a reasonable doubt that the defendant acted as if (he/she) were conscious, you should conclude that (he/she) was conscious. If, however, based on all the evidence, you have a reasonable doubt that (he/she) was conscious, you must find (him/her) not guilty."
The relevant jury instruction relating to an accident defense, CALCRIM No. 3404, provides in pertinent part: "[The defendant is not guilty of _______... if (he/she) acted [or failed to act] without the intent require for that crime, but acted instead accidentally. You may not find the defendant guilty of________... unless you are convinced beyond a reasonable doubt that (he/she) acted with the required intent.]"
A. The Defense Case
Whalum did not request the court instruct the jury on the affirmative defenses of unconsciousness or accident.
In closing argument, Whalum argued the evidence did not prove Whalum pushed Officer Darren while running out of the motel room, as indicated by the lack of physical harm to Officer Darren and the lack of damage to the outdoor railing. Whalum pointed out that when Whalum allegedly pushed Officer Darren into the railing, Officer Darren was caught up in his taser wires and feeling the electrical effects. Whalum argued it would be unusual for the other officers, including Officer Darren's brother, to remain in the motel room and not take any additional force against Whalum if he was indeed pushing Officer Darren into the railing.
As to the incident on the street, Whalum argued the evidence showed Officer Cutting beat Whalum with the baton until Whalum eventually surrendered. Whalum argued the witnesses disputed whether Whalum held the baton as if he were about to strike Officer Cutting with it and that even if Whalum raised the baton, the motion was a result of the electricity from Officer Brian's taser gun.
B. Analysis
"A court must instruct sua sponte on general principals of law that are closely and openly connected with the facts presented at trial." (People v. Ervin (2000) 22 Cal.4th 48, 90.) A trial court must instruct on an affirmative defense even in the absence of a request, "if it appears the defendant is relying on the defense, or if there is substantial evidence supporting the defense and the defense is not inconsistent with the defendant's theory of the case." (People v. Rogers (2006) 39 Cal.4th 826, 887.)
One such affirmative defense is unconsciousness. " 'Unconsciousness does not mean that the actor lies still and unresponsive. Instead, a person is deemed "unconscious" if he or she committed the act without being conscious thereof. ' " (People v. Rogers (2006) 39 Cal.4th 826, 887, quoting People v. Haley (2004) 34 Cal.4th 283, 313.) Where unconsciousness is not voluntarily induced, it serves a complete defense to a charged crime. (People v. Babbitt (1988) 45 Cal.3d 660, 693.)
Another affirmative defense that may trigger the court's sua sponte duties is accident, which "is a claim that the defendant acted without forming the mental state necessary to make his actions a crime." (People v. Gonzales (1999) 74 Cal.App.4th 382, 390; see also § 26, class Five ["All persons are capable of committing crimes except those... [p]ersons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence"].)
As evident by Whalum's testimony and closing argument at trial, Whalum's theory of the charged crimes was essentially that the crimes did not occur. As to pushing Officer Cutting into the railing, Whalum testified he never touched the officer because he would have had "no need or reason" to use force against a police officer. In closing, Whalum also questioned the accuracy of the officers' testimony and the lack of physical evidence proving Whalum pushed Officer Darren into the railing.
Importantly, however, Whalum presented no evidence at trial that he unconsciously or accidently pushed Officer Darren into the hotel railing or that he unconsciously or accidently raised the baton at Officer Cutting in the truck bed. In fact, arguments relating to these two defenses did not appear until Whalum's appeal to this court, and thus Whalum was not relying on these defenses at trial. In any event, we conclude the defenses of unconsciousness and accident, which concede that Whalum committed the acts but was nevertheless not guilty because of a lack of mens rea, are inconsistent with his theories at trial—that he did not contact Officer Darren at all and did not raise the baton to strike Officer Cutting. We thus conclude the trial court did not have a sua sponte duty to instruct on either affirmative defense. (See People v. Rogers, supra, 39 Cal.4th at p. 887.)
Assuming arguendo the trial court erred when it failed to instruct sua sponte on either defense, we conclude that error was harmless because the "factual question posed by the omitted instruction was necessarily resolved adversely to [Whalum] under other, properly given instructions." (People v. Sedeno (1974) 10 Cal.3d 703, 721, overruled on another ground as stated in People v. Breverman (1998) 19 Cal.4th 142, 149; accord People v. Coffman and Marlow (2004) 34 Cal.4th 1, 96-97 [error in omitting instruction was harmless when factual question posed by that instruction was necessarily resolved adversely to defendant under other, properly given instructions].)
Here, the jury was instructed that to find Whalum guilty of assault with a deadly weapon on a peace officer, it first was required to find Whalum intended to commit the prohibited act, or at least committed the act "on purpose." This finding by the jury necessarily resolved against Whalum the factual issue of whether, in connection with this incident, he was in an unconscious state or whether his conduct was accidental. (See People v. Coffman and Marlow, supra, 34 Cal.4th at pp. 96-97.) Because it is not reasonably probable Whalum would have realized a more favorable verdict had the trial court instructed sua sponte on either affirmative defense, we conclude any such (purported) error by the trial court was harmless beyond a reasonable doubt. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
DISPOSITION
The judgment of conviction is affirmed.
WE CONCUR: NARES, J., McINTYRE, J.