Opinion
A148797
12-12-2017
THE PEOPLE, Plaintiff and Respondent, v. RODNEY ONEIL WILLIAMS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SF399267A)
A jury convicted Rodney ONeil Williams of second degree murder (Pen. Code, § 187, subd. (a)) and found true the allegation he personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)). The trial court found Williams's prior convictions true, struck one prior, and sentenced Williams to 31 years to life in state prison.
Undesignated statutory references are to the Penal Code.
Williams appeals. He contends the court erred by: (1) failing to sua sponte instruct the jury on the right to self-defense: mutual combat or initial aggressor (CALCRIM No. 3471); (2) failing to sua sponte instruct the jury on the heat of passion theory of voluntary manslaughter; and (3) admitting the victim's hearsay statements. He also seeks reversal based on cumulative error.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged Williams with murder (§ 187, subd. (a)) and alleged he personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)) and personally inflicted great bodily injury (§ 1203.075, subd. (a)). The operative information alleged Williams had two prior strike convictions (§ 1170.12, subd. (c)(2)).
Prosecution Evidence
Williams worked with Neil Lewis. In early June 2015, Lewis was shot and his left leg was "completely shattered." After about two weeks, Lewis returned to work, but he walked with a limp and "it was hard for him to put pressure on" his left leg. Lewis was "in constant pain" after the shooting.
On July 7, 2015, Victor A., his wife, and his daughter arrived at an office building in Burlingame. Before going inside, Victor smoked a cigarette behind the building. As Victor smoked, his wife called to him, saying two people were fighting. Victor came to the lobby and saw two men fighting in front of the building. Victor's daughter also witnessed the fight. A taller, heavier man—later identified as Williams—was "dominating" Lewis, "trying to force him to the ground." With his palms facing out, Lewis tried, unsuccessfully, "to defend himself." Williams punched Lewis, who tried to "cover his face to not get . . . hit." Williams forcefully lifted Lewis in the air and threw him, causing Lewis to fall to the ground. Then Williams hit Lewis four or five times.
Lewis did not punch Williams, and he did not put his hands around Williams's neck. Instead, Lewis tried to back away from Williams, to avoid getting hit. Eventually, Lewis was unable to get up. Williams got into a car and drove to a nearby parking lot, where he told a man he had been "jumped" by "some of his co-workers." Williams's T-shirt was bloody, and he had blood on his hand. The man asked Williams whether he needed an ambulance or the police, and William said "no." Williams went into the bathroom, took off his T-shirt, and wiped off the blood. The man could see Williams's face and torso; there were no cuts, injuries, scratches, or blood.
Shortly after Williams left, Lewis lost consciousness. He died from "complications of multiple sharp force injuries." Lewis had "seven stab wounds and four cuts." One of the wounds—which was four inches deep—entered Lewis's chest and penetrated his left lung. Another "extremely serious" wound penetrated Lewis's heart and by itself would have been fatal. Another wound would have disabled the use of Lewis's hand "very significantly" and was consistent with Lewis "grasp[ing] a knife blade in trying to defend [him]self against it." The majority of Williams's wounds were consistent with defensive wounds.
Williams was arrested in Sacramento in late July 2015. When he was arrested, Williams did not have any injuries or scars.
Defense Evidence
Williams testified that he began working with Lewis in July 2014. They had a cordial relationship. In 2015, Williams was dating two women, including K.M., who had previously worked with Lewis. In May 2015, Williams was having "trust issues" with K.M. and saw "a number calling her phone consistently." Williams learned it was Lewis who had been calling K.M., so he asked Lewis, " 'What's going on here? Is there anything I need to know about?' " Lewis told Williams he was just checking in with K.M. A few days later, Williams sent Lewis a text saying "Bruh, I'm all ears" because Lewis had indicated he wanted to talk. The two men talked and Lewis assured Williams there was nothing to worry about. Williams felt the issue was resolved.
In June 2015, Williams learned Lewis had been shot. After Lewis returned to work, Williams approached him, to "see how he was doing." Lewis was sitting in the passenger seat of a car; the "driver had a gun on his lap." William asked Lewis, " 'How are you doing?' " Lewis responded by asking Williams if he still associated with a street gang called the 500 Boys. Williams said no, but he interpreted the question as an accusation that he "had some type of involvement with [Lewis's] shooting."
When Williams saw Lewis in early July 2015, Lewis was not friendly: he "turned up his lip . . . like, I'm not cool." The two men got into a "kind of heated" argument. On July 7, 2015, Williams and Lewis worked together. At the end of the evening, when Williams said goodbye, Lewis "mugg[ed]" him, as if to tell Williams he was "not cool." The two men exchanged words, and Williams asked Lewis, " 'You know, what is this going to come to? . . . What is going to be the end of this?' " In response, Lewis said: " 'Go around the corner and handle it now.' " Williams thought Lewis meant they "were going to go around the corner, maybe a fistfight, argue or something." Williams's "perception" of the comment was: "let's go around the corner and fight it out." Williams thought there "was going to be a fight."
Williams followed Lewis's car toward an office building in Burlingame. Lewis got out of the car "aggressively" and then "grabbed at his waist a little bit." Williams—who thought Lewis might have "had a weapon, a gun or something"—kept driving. As Williams drove, Lewis "threw something at the car." Williams stopped driving, got out of the car, and said, " 'What's up?' " Lewis came toward Williams "at a fast pace, and he raised his hand," which held a knife. Williams was scared.
Over Williams's hearsay objection, the court allowed several prosecution witnesses to testify on rebuttal regarding statements Lewis made before the incident. Lewis's brother, and his best friend, testified Lewis did not carry a knife. The day before he died, Lewis told his best friend that he had "some problems with a guy at work" over a girl, and that the "guy called his phone a lot, . . . threatening him," but that Lewis "wasn't worried about it." Lewis's girlfriend testified on rebuttal that Lewis said he had an issue "with a guy at work" and that when he returned to work after the shooting, the two had a confrontation and they had "squared up." Lewis called the guy a "fuckboy" and a "little, short, ugly guy." Lewis also said, " 'I'll fuck his little ass up.' "
Williams grabbed Lewis's "hand with the knife" and the two men began to "tussle." The knife fell to the ground and Williams and Lewis fought "over possession" of it. Williams picked up the knife, and Lewis "rushed back in at [him]," trying to swat the knife from Williams's hand. Then Lewis "wrapped his hands around [Williams's] neck and started to choke" him. At that point, Williams tried to stab Lewis's arm so Lewis would release the choke hold. When this was unsuccessful, Williams swung the knife wildly to "save" himself. Somehow, Lewis "ripped" the knife out of Williams's hand; then the knife "ended up . . . in front of the building." The two men "pull[ed] at each other, trying to keep each other away from the knife."
Williams retrieved the knife and put it in his pocket. As Williams approached his car, Lewis "snatched . . . back" at him. Ultimately, Lewis told Williams he did not want to fight anymore. Lewis appeared tired, but not injured. Williams left, but he did not call the police. Williams did not know he stabbed Lewis 11 times. Jury Instructions, Verdict, and Sentence
The court instructed the jury on first and second degree murder, and with voluntary manslaughter based on imperfect self-defense (CALCRIM Nos. 500, 520, 521, 571). Additionally, the court instructed the jury on self-defense (CALCRIM No. 505), i.e. that a defendant can act in lawful self-defense if "[t]he defendant used no more force than was reasonably necessary to defend against that danger." It further instructed the jury that "[t]he defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the killing was not justified," and that "[a] defendant is not required to retreat. He . . . is entitled to stand his . . . ground and defend himself . . . and, if reasonably necessary, to pursue an assailant until the danger of death or great bodily injury has passed. This is so even if safety could have been achieved by retreating."
The court also instructed the jury with CALCRIM No. 3472, that "[a] person does not have the right to self-defense if he . . . provokes a fight or quarrel with the intent to create an excuse to use force." (CALCRIM No. 3472.) Finally, the court instructed the jury with CALCRIM No. 3474, which provides: "The right to use force in self-defense continues only as long as the danger exists or reasonably appears to exist. When the attacker no longer appears capable of inflicting any injury, then the right to use force ends."
Defense counsel objected to the instruction, claiming it was "not based on any evidence presented at the trial." At an unreported conference, the court and the parties discussed jury instructions. Then, at a reported hearing, the court noted the instructions it would deliver, and that CALCRIM No. 3471 was "withdrawn." CALCRIM No. 3471 was not among the jury instructions requested by the prosecutor.
The prosecutor urged the jury to convict Williams of first degree murder. According to the prosecutor, William's version of the incident was that Williams "didn't intend to kill him. He just wanted to settle this thing. That [Lewis] brought the knife, and that . . . [Williams] was able to disarm [Lewis] and things went horribly awry. . . . [¶] But remember this. Again, this is an instruction from the Judge. A person does not have the right to self-defense if he provokes the fight or quarrel with the intent to create an excuse to use force. That's what we have here. [¶] What did . . . Williams do? He stopped, got out of the car, confronted the victim, and now he is saying self-defense. [¶] You do not have a right to provoke a quarrel in order to use that defense." The prosecutor also urged the jury to reject a voluntary manslaughter verdict.
In his closing, defense counsel argued Williams was not guilty because he acted in "legal self-defense." According to counsel, the two men "agreed to meet . . . and when they did Mr. Williams was surprised by the presence of the knife. [¶] . . . [Williams] wasn't expecting to see the knife . . . he wasn't expecting to be accosted with a knife." Counsel argued the evidence supported a "justifiable response to the attack . . . . The choking absolutely put him in imminent peril of death, and he responded with just enough force to escape that death."
On rebuttal, the prosecutor urged the jury to conclude Williams's "story of . . . agreeing to this fight" did not make sense. According to the prosecutor, it "[d]oesn't make sense that these two guys are going to settle their matter with what's pretty serious, getting shot, with fisticuffs. Does that make any sense? And they're going to do it . . . during work hours in broad daylight in a public place where people are going to and from their cars. They're actually planning this. We're going to go around the corner and settle our differences . . . we're going to go do it in front of this commercial building."
The jury convicted Williams of second degree murder (§ 187, subd. (a)) and found true the allegation he personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)). The trial court found Williams's prior convictions true, struck one prior pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and sentenced Williams to 31 years to life in state prison.
DISCUSSION
I.
Any Assumed Failure to Instruct the Jury with CALCRIM No. 3471
Was Not Prejudicial
Williams contends the court erred by failing to sua sponte instruct the jury with CALCRIM No. 3471. That instruction provides: "A person who [engages in mutual combat or who starts a fight] has a right to self-defense only if: [¶] (1) [he] actually and in good faith tried to stop fighting; . . . [¶] (2) [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] (3) [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."
When the person claiming self-defense was engaged in mutual combat, CALCRIM No. 3471 also provides: "[However, if 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[,] 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 claim to self-defense arose.]"
Williams contends he was entitled to CALCRIM No. 3471 because he and Lewis agreed to engage in mutual combat. A trial court must instruct the jury on all general principles of law that are " ' "closely and openly connected to the facts and that are necessary for the jury's understanding of the case," ' " provided the instruction is supported by substantial evidence. (People v. Burney (2009) 47 Cal.4th 203, 246.) We assume for the sake of argument substantial evidence supports the conclusion that Lewis and Williams "consented or intended to fight before the claimed occasion for self-defense arose." (People v. Ross (2007) 155 Cal.App.4th 1033, 1046-1047; People v. Tufunga (1999) 21 Cal.4th 935, 944 [doubts as to sufficiency of evidence warranting an instruction should be resolved in the defendant's favor].)
Williams argues the court's erroneous failure to instruct the jury with CALCRIM No. 3471 "deprived [him] of the right to have the jury correctly evaluate his use of self-defense." According to Williams, the court should have instructed the jury with CALCRIM Nos. 3471 and 3472 "in tandem" because "a person who starts a fight with non-deadly force, as [Williams] did here, does not forfeit the right to self-defense if his opponent is the first person to use deadly force. Instead, if the initial attacker does not start the fight with deadly force, he may regain the right to self-defense, if his opponent is the first to use deadly force and uses it suddenly."
To determine whether the failure to instruct the jury was prejudicial, we briefly discuss the two jury instructions. Under CALCRIM No. 3471, a defendant who engages in mutual combat, or who starts a fight, ordinarily has a right to self-defense only where three criteria are satisfied: (1) the defendant "actually and in good faith tried to stop fighting;" (2) the defendant communicated to his opponent the intent to cease fighting and that he had stopped fighting; and (3) the defendant gave his "opponent a chance to stop fighting." (CALCRIM No. 3471; see also People v. Ramirez (2015) 233 Cal.App.4th 940, 946, fn. 1 (Ramirez).) But the defendant need not try to stop fighting—or communicate the desire to stop fighting—where the opponent suddenly resorts to deadly force in response to the defendant's nondeadly attack. (Ramirez, at p. 946, fn. 1.) "CALCRIM No. 3471 charges a jury to make a preliminary determination of whether the defendant had the right to use force to defend himself when the defendant and the victim engaged in mutual combat, or when the defendant was the initial aggressor." (People v. Johnson (2009) 180 Cal.App.4th 702, 711 (Johnson).)
CALCRIM No. 3472, entitled "Right to Self-Defense: May Not Be Contrived," states: "A person does not have the right to self-defense if he . . . provokes a fight or quarrel with the intent to create an excuse to use force." The import of this instruction is that " 'self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense.' " (People v. Enraca (2012) 53 Cal.4th 735, 761.) CALCRIM No. 3472 "is a correct statement of law." (People v. Eulian (2016) 247 Cal.App.4th 1324, 1334 (Eulian).)
CALCRIM No. 3472, however, does not apply to every defendant who initiates a fight and subsequently claims self-defense. Instead, CALCRIM No. 3472 "applies to a subset of individuals who not only instigate a fight, but do so with the specific intent that they contrive the necessity for their acting thereafter in 'self-defense,' and thus justify their further violent actions. . . . [T]his instruction applies, and the right to self-defense is lost, only if an initial aggressor commences combat for the intended purpose of provoking a violent reaction so that he or she can then retaliate with further violence, whether deadly force or nondeadly force, under the guise of self-defense. The defendant's intent is measured at the time the fight or quarrel is provoked." (Ramirez, supra, 233 Cal.App.4th at p. 954, italics added (dis. opn. of Fybel, J.).)
In other words, CALCRIM No. 3472 pertains to a situation where the defendant starts a fight with a forbidden purpose: to create an excuse to use force. (Ramirez, supra, 233 Cal.App.4th at p. 955 [CALCRIM No. 3472 contains a "scienter requirement" that the defendant contrived a situation to use force]; People v. Hinshaw (1924) 194 Cal. 1, 26 [instruction recognizes principle that self-defense is " 'not available' " where the defendant " 'has sought a quarrel with the design to force a deadly issue and thus, through his fraud, contrivance or fault, to create a real or apparent necessity for making a felonious assault' "].)
"CALCRIM No. 3472 instructs that even if initial aggressors or mutual combatants satisfy the requirements of CALCRIM No. 3471, they are not permitted to assert the right to self-defense if they initially engaged in that activity for the purpose of contriving the opportunity to engage in further violence in response to their adversary's reaction." The scienter requirement in CALCRIM No. 3472—"with the intent to create an excuse to use force"—distinguishes that instruction "in substance and purpose from CALCRIM No. 3471." (Ramirez, supra, 233 Cal.App.4th at p. 957 (dis. opn. of Fybel, J.).)
Here, the court's failure to instruct the jury with CALCRIM No. 3471 did not—as Williams contends—negate a self-defense theory. The court delivered several self-defense instructions, including justifiable homicide (CALCRIM No. 505), voluntary manslaughter: imperfect self-defense (CALCRIM No. 571), and when the right to use force in self-defense ends (CALCRIM No. 3474). These instructions did not preclude the jury from considering Williams's testimony on his right to self-defense, nor did they prevent the jury from finding Williams acted in perfect or imperfect self-defense. (See Johnson, supra, 180 Cal.App.4th at pp. 708, 711 ["the trial court's instructions assumed that defendant had not lost [the] right" to self-defense, even where the court instructed the jury with CALCRIM No. 3472, but not CALCRIM No. 3471].)
Nor did the court's failure to instruct the jury with CALCRIM No. 3471 lessen the prosecution's burden of proof. The court instructed the jury on malice (CALCRIM No. 520), the presumption of innocence, and the prosecutor's burden of proof (CALCRIM Nos. 103, 220).
Assuming the Chapman standard applies, we are convinced any error in failing to instruct the jury with the following language in CALCRIM No. 3471 was harmless beyond a reasonable doubt: "if the defendant used only non-deadly 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]." Williams testified the two men agreed to have a fist fight, and Lewis rushed at him with a knife. As Williams and Lewis fought for control of the knife, Lewis choked Williams, who tried to "save" himself by stabbing Lewis. In closing argument, defense counsel argued Lewis and Williams agreed to meet, and when they did, Lewis surprised Williams with a knife and a struggle ensued. Counsel argued the stabbing was a "justifiable response to the attack."
Thus, the question presented to the jury was whether Williams exercised his right to self-defense in a reasonable manner when he stabbed Lewis 11 times—that is, whether he reasonably believed he was in danger and that force was necessary to defend himself, and whether he used no more force than reasonably necessary. (See Johnson, supra, 180 Cal.App.4th at p. 711; see also Eulian, supra, 247 Cal.App.4th at pp. 1334-1335.) The court instructed the jury to determine whether Williams acted in reasonable self-defense, just as it would have had the court instructed the jury with CALCRIM No. 3471. (Johnson, at p. 711.) In returning a verdict of second degree murder, the jury rejected Williams's implausible self-defense claim and found beyond a reasonable doubt he did not have even an unreasonable belief in the need for self-defense. Under the circumstances, the court's failure to instruct the jury with CALCRIM No. 3471 was harmless beyond a reasonable doubt. (See People v. Salas (2006) 37 Cal.4th 967, 984, 983 [failing to instruct on an affirmative defense not prejudicial even under the "more rigorous Chapman test" where, "[i]n light of the prosecution's evidence, . . . no reasonable jury would believe [the defendant's] testimony"]; People v. Moon (2005) 37 Cal.4th 1, 32 [assumed error in failing to instruct the jury was harmless under the Watson and Chapman standards].)
Williams's reliance on the majority opinion in Ramirez, supra, 233 Cal.App.4th 940 does not alter our conclusion. In that case, two codefendants provoked a fistfight with rival gang members. (Id. at p. 944.) One defendant testified that during the fight, a rival gang member pulled out what appeared to be a gun, so the defendant pulled out his own gun and shot the rival gang member. (Id. at p. 945.) The trial court instructed the jury with CALCRIM Nos. 3471 and 3472 (Id. at pp. 945, 948) and with a modified version of CALCRIM No. 571, which told the jury the principle of imperfect self-defense could not be invoked if, among other things, a defendant invited " 'a physical assault.' " (Id. at p. 952.) During closing arguments, the prosecutor repeatedly argued, based on the language of CALCRIM No. 3472, that even if the jury believed the defendants sought to provoke only a fistfight, their intent to use force—even a nondeadly fistfight—meant they forfeited any claim of self-defense. (Id. at pp. 943, 945-946.) The jury found the defendants guilty of first degree murder. (Id. at p. 943.)
The Ramirez majority reversed the first degree murder convictions. It determined that giving CALCRIM Nos. 3471 and 3472, in combination with the prosecutor's repeated misstatement of the law in closing arguments, "prevented the jury from considering their self-defense claim." (Ramirez, supra, 233 Cal.App.4th at p. 945.) Ramirez is distinguishable. Here, the court did not give CALCRIM No. 3471, and the prosecutor did not make repeated and "forceful" misstatement about the law of self-defense. (Id. at pp. 952, 950.) Nor did the court deliver a modified version of CALCRIM No. 571. The prosecutor referred to CALCRIM No. 3472 only once during closing argument. Beyond that, the prosecutor did not argue Williams was precluded from claiming self-defense, only that the jury should not interpret the evidence to justify Williams's entitlement to self-defense. And as discussed above, defense counsel argued Williams acted in self-defense. In contrast to Ramirez, the jury was not prevented from considering Williams's self-defense claim.
Williams's reliance on People v. Vasquez (2006) 136 Cal.App.4th 1176, is also misplaced. In that case, the court refused to instruct the jury on imperfect self-defense. Here, the jury was instructed on imperfect self-defense. --------
II.
No Error in Failing to Instruct on Heat of Passion Voluntary Manslaughter, and Any
Assumed Error Was Harmless
Next, William argues the court erred by failing to instruct the jury on the heat of passion theory of voluntary manslaughter. A trial court has a sua sponte duty to instruct the jury on all lesser included offenses supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 148-149, 162.) Voluntary manslaughter is a lesser included offense of murder. (Id. at p. 154.) " '[W]hen the defendant acts in a "sudden quarrel or heat of passion" (§ 192, subd. (a)),' " the defendant is deemed to have acted without malice, even if he intended to kill. (People v. Blakeley (2000) 23 Cal.4th 82, 87-88.) Thus, a killing " 'upon a sudden quarrel or heat of passion' " can negate the malice element of murder and reduce the offense to voluntary manslaughter. (Breverman, at p. 163.)
"Although section 192, subdivision (a), refers to 'sudden quarrel or heat of passion,' the factor which distinguishes the 'heat of passion' form of voluntary manslaughter from murder is provocation. The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.] 'Heat of passion arises when "at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment." ' " (People v. Lee (1999) 20 Cal.4th 47, 59.)
According to Williams, his trial testimony presented "a classic, textbook example of provocation" warranting the heat of passion instruction. We disagree. Williams testified Lewis "mugg[ed]" him and suggested they "handle" things around the corner. He also testified Lewis got out of his car in an aggressive manner, threw something at Williams's car, and came toward him with a knife. Williams claimed he swung the knife wildly and stabbed Lewis to "save" himself. The thrust of Williams's testimony "was self-defense—both reasonable self-defense (a complete defense to the criminal charges), and unreasonable or imperfect self-defense (a partial defense that reduces murder to manslaughter)." (People v. Moye (2009) 47 Cal.4th 537, 554 (Moye).)
Williams's narrative of the events did not suggest he was under the influence of a strong passion when he killed Lewis. (Moye, supra, 47 Cal.4th at p. 552.) The standard for requiring instruction on heat of passion voluntary manslaughter is not " ' "any evidence, no matter how weak," ' " but evidence " ' "substantial enough to merit consideration" by the jury.' " (Id. at p. 553.) Here, the evidence did not support an instruction on voluntary manslaughter based on heat of passion. (Id. at p. 551.) "In the face of [Williams]'s own testimony, no reasonable juror could conclude [he] acted ' " 'rashly or without due deliberation and reflection, and from this passion rather than from judgment' " ' " when he responded to Lewis approaching him with a knife by stabbing Lewis 11 times. (Id. at p. 553.)
As our high court has explained, "[a] trial court has a duty to instruct on general principles of law that are 'closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case.' [Citation.] But no principle of law required the trial judge below to disregard the evidence in order to find that the jury should consider whether defendant subjectively killed in the heat of passion, when no substantial evidence supported that theory of manslaughter, and the evidence actually introduced on the point—the defendant's own testimony—was to the contrary." (Moye, supra, 47 Cal.4th at p. 554.) Williams's reliance on People v. Barton (1995) 12 Cal.4th 186 does not alter our conclusion. That case—where the victim acted " 'berserk' " and tried to run the defendant's daughter's car off the road—is distinguishable. (Id. at p. 202.)
Assuming the court erred by failing to instruct the jury on a heat of passion theory of voluntary manslaughter, any "such error was harmless as it is not reasonably probable [Williams] would have obtained a more favorable outcome had the jury been so instructed." (Moye, supra, 47 Cal.4th at p. 555-556.) As discussed above, the jury rejected Williams's claim of self-defense, and there was no "independent evidence remaining to support his further claim that he killed in the heat of passion, and no direct testimonial evidence from [Williams] himself to support an inference that he subjectively harbored such strong passion, or acted rashly or impulsively while under its influence for reasons unrelated to his perceived need for self-defense." (Id. at p. 557.)
III.
Any Assumed Error in Admitting Prosecution Rebuttal Evidence Pursuant to
Evidence Code Section 1250 Was Harmless
Williams claims the court erred by admitting statements Lewis made to family and friends before the homicide.
A. Background
After the defense completed its case-in-chief, the prosecutor moved to admit statements made by Lewis to two close friends, his girlfriend, and to his brother, pursuant to Evidence Code section 1250. The prosecutor argued Lewis's state of mind, and his attitude toward Williams, were at issue because: (1) Williams claimed he stabbed Lewis in self-defense; and (2) Williams testified he believed Lewis thought he was involved the June 2015 shooting and that Lewis was seeking revenge for that shooting. The prosecutor explained the "point of this testimony" was to show Williams "lied on the stand" about his issue with Lewis and that "the only issue [between the two men] was with the girl at work." Over defense counsel's objection, the court determined the evidence came within Evidence Code section 1250, and was relevant to rebut the defense claim that Lewis's problem with Williams related to the June 2015 shooting.
Lewis's friend, his girlfriend, and his brother testified on rebuttal. Lewis's friend testified Lewis said "he had some problems with a guy at work." Lewis "said the dude don't like him because . . . he [thought] . . . that [Lewis] was talking to a girl that the guy is talking to." Lewis also said "he wasn't worried about it." Lewis's girlfriend testified Lewis said had an issue "with a guy at work," and the issue was about "[a] girl." Lewis and his girlfriend discussed the June 2015 shooting; Lewis never said he suspected the guy at work was involved. Lewis's brother testified Lewis mentioned having an issue "with a guy at work." Lewis's brother understood the issue was "about a girl." When Lewis and his brother discussed the June 2015 shooting, Lewis did not say he was suspicious the guy from work "had anything at all do to with the shooting."
The court instructed the jury that Lewis's statements were not to be considered for their truth, but only as evidence of Lewis's state of mind when he made those statements. The court also instructed the jury on limited purpose evidence (CALCRIM No. 303).
B. Any Assumed Error in Admitting Lewis's Statements Was Harmless
Williams claims the prosecution's rebuttal evidence did not come within Evidence Code section 1250. "Hearsay is a statement made other than while testifying as a witness, which statement is offered in the trial to prove the truth of the matter asserted in the statement." (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 591, italics and fn. omitted.) "Evidence Code section 1250, which authorizes the admission of out-of-court statements to prove the declarant's state of mind, permits the admission of such evidence only if the declarant's state of mind 'is itself an issue in the action' or if the evidence 'is offered to prove or explain acts or conduct of the declarant.' " (People v. Riccardi (2012) 54 Cal.4th 758, 814-815, abrogated on another point in People v. Rangel (2016) 62 Cal.4th 1216.)
We need not decide whether the court properly admitted the testimony under the state of mind hearsay exception, because any assumed error in admitting that testimony was harmless. (People v. Becerrada (2017) 2 Cal.5th 1009, 1027.) The testimony "was minor in light of the case as a whole." (Id. at pp. 1027-1028.) And, as discussed above, the evidence supporting guilt was strong. (People v. O'Malley (2016) 62 Cal.4th 944, 1008-1009 [erroneous admission of evidence under Evidence Code section 1250 "was harmless"]; People v. Jablonski (2006) 37 Cal.4th 774, 821 [evidence erroneously admitted pursuant to Evidence Code section 1250 was harmless "in light of the overwhelming evidence of defendant's guilt"].)
Finally, we reject Williams's cumulative error claim. We have rejected Williams's claims on the merits; when we have assumed error, we have deemed that error harmless. There is no reasonable possibility the jury would have reached a result more favorable to Williams absent a combination of the assumed errors. (People v. Poletti (2015) 240 Cal.App.4th 1191, 1216.)
DISPOSITION
The judgment is affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Bruiniers, J.