Opinion
A165419
10-31-2023
THE PEOPLE, Plaintiff and Respondent, v. JAMES NIX, Defendant and Appellant.
NOT TO BE PUBLISHED
Mendocino County Super. Ct. No. SCUK CRCR 2018947681
BROWN, P.J.
A jury convicted James Nix of assault with a firearm and found true a firearm use allegation after Nix trespassed onto the property of David H. and pointed a gun at him. Nix appeals, arguing the trial court improperly excluded evidence that David H. was engaged in unpermitted construction work on the property when the incident occurred. He further argues that the trial court erred by omitting from the self-defense instruction a paragraph stating that Nix did not have a duty to retreat and that the court committed cumulative error. If the exclusion of the permitting evidence was error, it was harmless, and there was no instructional or cumulative error. We will therefore affirm the judgment.
BACKGROUND
Nix and David H. own properties in a subdivision in the hills west of Ukiah. Janix Drive passes through multiple properties in the subdivision, and each owner has an easement to use it solely for residential purposes, not for the purpose of developing any adjoining properties.
Nix and David H. had once been friends, but their relationship had deteriorated and the two had not communicated in many years. In late 2017, Nix left an angry voice message for David H. complaining about how a 15-year-old employee of David H.'s was clearing the road of rocks by rolling them off the side of the road down a steep hillside. And in late May or early June 2018, Nix had alleged to authorities that David H. was committing a grading violation while working on a neighbor's property.
A couple weeks after that complaint, Nix saw signs that he believed showed that a truck had damaged Janix Drive while accessing a neighboring property. Nix rode his all-terrain vehicle (ATV) onto his neighbors' property to investigate. Nix was shocked to see a newly cut dirt road because he knew there had not been anything permitted in the area. Nix took photographs of construction equipment and the new road. He later claimed he did not know the property he was on belonged to David H. As Nix continued east down the new road, he encountered a pickup driven by Pete V. Accounts of what transpired next differed.
According to Pete V., he was coming west up the dirt road from Redwood Avenue, driving on David H.'s property, when he saw Nix traveling on his ATV down the center of the road and making no effort to weave out of the way. Pete V. had no way to get by so he stopped his pickup to avoid running over Nix. Nix's ATV rolled up to rest against the pickup's bumper. Pete V. thought Nix wanted to have a conversation so he got out of his pickup. Pete V. had been warned that Nix could be problematic. Nix stayed on his ATV and aggressively accused Pete V. of trespassing. Nix took out his camera to take a picture of the license plate of the pickup and then tried to take a picture of Pete V. Pete V. smiled for the photo, at which point Nix tapped him on the face with his phone. Pete V. shooed or slapped the phone to knock it away without knocking it out of Nix's hand. The phone was no longer an issue after that.
At that point, which was about a minute and a half after Pete V. first saw Nix, David H. drove up on his own ATV. David H. had seen Nix drive by and followed him, believing Nix was about to "stir the pot" or try to get David H. in more trouble. Although David H. had been following Nix, David H. circled around Nix and drove faster so that he approached Nix heading west, just as Pete V. had. David H. parked alongside the passenger side of Pete V.'s pickup, pointing in the same direction with the front bumpers about even. A photo taken later documented the relative positions of the three vehicles.
According to David H., when he arrived Pete V. was standing near the front left corner of the pickup and the right front fender of Nix's ATV, with Nix seated on the ATV directly in front of the pickup. David H. got off his ATV and stood near the front right corner of Pete V.'s pickup. Contrary to Pete V.'s testimony that he simply slapped Nix's phone, David H. said the two were struggling over something over the handlebars of Nix's ATV, with both men having a hold on it and tugging. Nix was in a rage and screaming at David H., "Get him away from me. Get him away from me." David H. knew Nix had a concealed weapon permit. Seeing how upset Nix was and fearing he and Pete V. were struggling over a gun, David H. called 911 and put the call on speakerphone.
When David H. saw that the two were tussling over a phone, he told Pete V. several times to "stand down," "let it go," and let the police handle matters. By "stand down," David H. meant Pete V. should be quiet and stop talking to Nix. David H. also told Pete V. that Nix might have a gun. Pete V. had backed up to around the left front tire of the pickup and David H. backed up to the right front fender. Nix got off his ATV and pulled his gun. Nix charged towards Pete V. with his gun extended in front of him in his right hand and shoved the gun hard into Pete V.'s chest twice. Photos taken afterwards showed two bruises on Pete V.'s chest. David H. yelled at Nix, "Don't do it."
Nix backed away. Pete V. remembered only that Nix was pointing the gun at him. David H. said that Nix waved his gun at both of them when he first drew it, held it on both of them for a few minutes after charging Pete V., and told them they would be his first victims. Nix eventually lowered the gun to his side. Nix lowered his gun a few minutes after David H. placed the call to 911, and the police arrived 28 minutes after the initiation of the call.
Nix testified at trial. He told the jury that when he encountered Pete V.'s pickup, he drove his ATV as far on the right on the road as he could, up against the bank on that side of the road. Pete V. turned his pickup towards Nix and rammed the front of Nix's ATV. Pete V. got out and became aggressive.
Nix was 63 years old, about to get a hip replacement, and had a bad back, so he wanted to leave rather than get in a physical altercation. But he wanted to find out who Pete V. was, so Nix decided to take a photo of the pickup's license plate. He did not try to take a picture of Pete V., wave the phone in his face, or tap his face with it. Pete V. leaned over the handlebars of the ATV, put Nix in a headlock, and tried to take away Nix's phone. Each of the men had a hand on the phone, and the phone was damaged in the struggle. The struggle lasted about a minute, and Pete V. would put his fist in Nix's face, saying, "I'm going to give you some of this." At that time, Nix was not worried about his gun or thinking about using it because Pete V. had not hit him. Nix thought the headlock was as far as it would go.
Pete V. let go and the two quarreled over whether Pete V. had hauled equipment across Nix's property and whether Pete V. or Nix had any right to be on David H.'s property. When they heard David H.'s ATV approaching, Pete V. grabbed Nix again and wrestled with him until David H. arrived.
After David H. warned Pete V. three times that Nix might have a gun, Pete V. let go of Nix's left hand that was holding the phone and reached for Nix's hip. Nix had been told in his concealed carry permit classes that the two reasons to take out a gun were to use it or try to keep it away from an assailant who was overpowering him. Nix was afraid for his life, because his worst fear was that someone would take his gun and use it against him. So Nix drew his gun and told Pete V. to get away from him. The two were in close proximity, so the gun made contact with Pete V.'s chest. Pete V. backed up, and Nix got off his ATV and backed up. Nix kept his gun on Pete V. and at no point put the gun on anyone else or waved it at anyone. David H. then called 911.
Nix provided photos of him reenacting the struggle, with a friend posing as Pete V. He also provided a picture of the handlebars of his ATV showing a rectangular brake reservoir that Nix believed was close to Pete V.'s chest during the struggle. Nix believed that Pete V. bruised his chest by pushing it against the brake reservoir.
A recording of David H.'s 911 call captured David H. telling Pete V. five times some variant of "stand down." David H. told the 911 operator that Nix had just pulled a gun on them and had the gun on them at that moment. David H. told Nix at one point, "Do not point that at me." A little later, David H. told the operator that Nix had lowered the gun to his side. David H. then said, apparently to Nix, "You got no call. Pulling a gun on people? For what?" Nix responded, "Fear of my life." David H. replied, "Fear of your life? The way you were acting? Are you out of your mind?"
David H. gave the operator directions for the police to get to their location via Janix Drive and an ATV ride with one of David H.'s employees, even though it would have been faster to come up heading west via Redwood Avenue. David H. explained that he did this because he thought Nix might try to leave by going back to Janix Drive.
Trial
In preparation for trial, the prosecution moved in limine to exclude on relevance grounds the testimony of Lisa Washburn, an official from the Mendocino County Code Enforcement office. Nix offered that Washburn would testify that the day after the incident, the county red-tagged David H.'s property, meaning it issued him a stop-work order telling him to stop doing work without a permit. Nix argued that this evidence was relevant both to explain why Nix investigated and to suggest Pete V. and David H. fabricated the accusation of assault against Nix because he caught them red-handed working without a permit.
The trial court ruled that Nix could go into his reasons for investigating and his state of mind. But it found David H.'s lack of a permit and Washburn's testimony about what happened subsequent to the incident did not add much to that story, was not relevant, and was more time-consuming than probative. However, the court said it would revisit the issue if the evidence at trial warranted it.
During Nix's cross-examination of David H., David H. testified that he was worried that Nix would "stir the pot" even though he had nothing to hide. Nix's counsel asked, "So if you had nothing to hide, everything you were doing there was legal?" David H. responded, "That is correct." In a bench conference shortly afterwards, Nix's counsel asked to revisit the permit-related evidentiary ruling in light of David H.'s testimony that all the work happening on his land was legal. Nix emphasized that the lack of a permit related both to Nix's theory that David H. and Pete V. wanted to conceal the lack of a permit and to David H.'s credibility, given his statement that everything he was doing was legal. The court stood by its ruling that the lack of a permit was "an irrelevant, red herring kind of issue that would take too much court time" and was "not particularly relevant as to whether Mr. Nix committed the acts" alleged. The court acknowledged that David H.'s credibility was relevant but did not allow Nix to delve into the permit issue.
The jury could not agree on count one of the information, the charge of assaulting Pete V. with a semiautomatic firearm (Pen. Code, § 245, subd. (b)), deadlocking with seven voting for guilt and five voting against. But the jury convicted Nix of count two, assaulting David H., and found true the special allegation that he personally used a firearm. (Pen. Code, § 12022.5, subd. (a).)
On the prosecution's motion, the trial court dismissed count one and the related special allegation with a stipulation that if Nix were successful in an appeal from his conviction on count two, the dismissed count would be reinstated. The trial court denied Nix's motion for a new trial. The court suspended imposition of sentence and placed Nix on probation for three years, under the condition that he serve 90 days in jail, with another 110 days suspended, and complete 200 hours of community service.
DISCUSSION
I. Exclusion of permitting evidence
Nix contends the trial court erred in excluding his evidence about David H.'s lack of a permit for work on his property. He argues the trial court erred when it granted the prosecution's motion in limine and compounded its error when it continued to exclude mention of David H.'s permitting violation even after David H. testified that all of his work on the day of the incident was legal. The thrust of Nix's argument is that the exclusion of the permitting evidence prevented him from showing David H. had a bias or motive to fabricate his account of the assault and from attacking David H.'s credibility. We need not delve into the particulars of Nix's argument because even if we assume the trial court erred, such error was not prejudicial.
Nix also argues that the trial court erred by excluding evidence that Pete V. was not properly licensed and was under investigation for contracting without a license. This evidence was relevant only to the charge of assaulting Pete V., since it related only to Pete V.'s possible motive for instigating the altercation with Nix. The trial court dismissed that charge unless Nix succeeds in reversing his conviction for assaulting David H. Because we affirm Nix's conviction, the count relating to Pete V. remains dismissed. We need not discuss whether evidence relating only to Pete V. was properly excluded.
"[A]n appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion." (People v. Alvarez (1996) 14 Cal.4th 155, 201.)" 'We will not disturb a trial court's exercise of discretion under Evidence Code section 352" 'except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.'" '" (People v. Mora and Rangel (2018) 5 Cal.5th 442, 480, italics omitted.)" '[A] "miscarriage of justice" should be declared only when the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'" (People v. Richardson (2008) 43 Cal.4th 959, 1001.)
Nix briefly mentions the federal standard for prejudice. However, he does not present a separate argument that exclusion of the permitting evidence, on its own, constituted a constitutional violation (cf. People v. Castaneda-Prado (2023) 94 Cal.App.5th 1260, 1291-1293 [applying harmless beyond a reasonable doubt standard to Confrontation Clause violation]), so there is no reason to apply the federal standard of prejudice here.
Nix's argument on prejudice rests in part on People v. Rowland (1968) 262 Cal.App.2d 790. There, the outcome of a trial for assault with a deadly weapon hinged on the conflicting testimony of the victim and the defendant. (Id. at pp. 792, 794.) After concluding it was error to exclude evidence that the court believed related to the victim's credibility, the Court of Appeal found the error prejudicial. (Id. at p. 798.) The court explained, "Exclusion of evidence bearing on the credibility of a prosecution witness where only he and the defendant are percipient witnesses has been held to be prejudicial error. [Citation.] There exists here also 'at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error has affected the result. But the fact that there exists at least such an equal balance of reasonable probabilities necessarily means that the court is of the opinion 'that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'" (Ibid.)
Rowland may be correct that when a case turns on the conflicting testimonies of the only two percipient witnesses, improper exclusion of evidence that bears on the credibility of one of the witnesses will likely be prejudicial. However, this principle does not apply here because David H.'s testimony was not the only evidence that Nix pointed his gun at David H. While Pete V. did not remember Nix pointing his gun at David H., the recording of the 911 call captured much of what happened after David H.'s arrival at the scene and corroborated David H.'s testimony.
On the 911 call, David H. told the 911 operator several times that Nix "pulled a gun on us," "he's got a gun holding it out on us right now," and "he's got a gun on us right now." The recording also captured David H. telling someone, apparently Nix, "Do not point that at me." Later in the call, David H. told the operator, "He just said, we're gonna be his first victims." Shortly after that, David H. told the operator that Nix had lowered his gun but had previously "pulled it on us" and "had it out on us."
This corroborating evidence makes this case unlike Rowland. These segments of the 911 call were consistent with David H.'s testimony that Nix pointed the gun at both David H. and Pete V., so the credibility of those two witnesses' trial testimony was not the only determining factor. David H. was describing to the 911 operator Nix's actions apparently in real time, and he said several times that Nix was pointing the gun at "us," meaning David H. and Pete V. Crucially, David H.'s statement to Nix, "Don't point that at me," indicates that Nix was pointing the gun specifically at David H. at that very instant. Even if the court erred in preventing Nix from using the permitting evidence to undermine David H.'s credibility or demonstrate a potential bias, it is not reasonably probable that Nix would have obtained a different outcome on his conviction for assaulting David H., given the contemporaneous record of the events in the 911 call recording.
Nix theorizes that David H. sent the police to the scene via Janix Drive rather than the shorter Redwood Road and lied to them when they arrived about what transpired because he wanted to conceal his unpermitted work. But this does not account for the 911 call. If David H. were lying about Nix pointing the gun at him, he would have had to form that intent before placing the call and then carefully shape his statements to the 911 operator, in real time, to present a misleading picture of what transpired. This strains credulity. Given the significant probative value of the contemporaneous 911 call recording, there is no reasonable possibility that the permit-related evidence would have caused the jury to reach a result more favorable to Nix on the charge of assaulting David H.
Nix cites the jury's deadlock on the charge related to Pete V. as evidence of a reasonable probability that the permitting evidence would have led the jury to a different result on the charge of assaulting David H. But the evidence relating to Pete V. and David H. was not the same. Pete V.'s testimony was inconsistent with David H.'s and not plausible on two key points. Pete V. claimed that Nix was driving down the center of the road and that he had to stop his pickup to avoid running over Nix. But David H. was able to drive up alongside Pete V.'s pickup, so the road must have been wide enough for the pickup and ATV to have passed each other. A photo of the vehicles demonstrated this vividly, showing Pete V. had driven onto Nix's side of the road and blocked his path. When faced with the photo on crossexamination, Pete V. was forced to grudgingly admit that he could have gone past Nix. Pete V. also denied getting into a struggle with Nix over Nix's phone, even though David H. testified that Pete V. had been grabbing at the phone and the phone itself was damaged. This evidence called into question whether Pete V. initiated the altercation and supported Nix's claim that he needed to defend himself against Pete V. But no evidence significantly called into question David H.'s account of Nix's assaulting him, while the 911 call corroborated David H.'s testimony. The weaknesses in the prosecution's case as to Pete V. offer no reason to think the jury would have been similarly deadlocked as to the David H. charge had it heard of his permitting issues.
Nix seeks in several different ways to undermine the significance of the 911 call. He first asserts that he only pulled the gun after Pete V. tried to take it from him. Even if true, this does not answer the question of whether Nix pointed the gun at David H. Nix may be implying it was reasonable for Nix to point his gun at David H. because he was Pete V.'s employer and Nix's right to self-defense extended to David H. Nix's counsel vaguely alluded to this idea at one point in his closing argument, but there was no evidence to support it. In his testimony, Nix never claimed that he needed to defend himself against David H. Instead, he stated unequivocally that he never pointed the gun at David H. Nix only got in a physical altercation with Pete V. By Nix's account, David H. stood back and warned Pete V. that Nix was likely armed. Nix and David H. also agreed that Nix had yelled to David H. to get Pete V. off of him, indicating Nix viewed David H. as a potential ally or at worst a neutral party. Nothing in the record suggests that Nix had any reasonable basis to think David H. was complicit in Pete V.'s alleged attack or any reasonable belief in the need to defend himself against David H.
Second, Nix cites David H.'s testimony that Pete V. was "standing right next" to him while he was telling Pete V. to stand down and stop talking. Nix suggests this explains David H.'s statements that Nix was holding a gun on "us," apparently implying that David H. was mistaken about whom Nix was targeting because the men were so close together. But David H. gave this testimony in the course of explaining why he repeatedly told Pete V. to stand down, seemingly to refute Nix's suggestion that "stand down" was David H.'s way of telling Pete V. to stop attacking Nix. Elsewhere in his testimony, when asked specifically about his location relative to Pete V. and Nix, David was clear that he and Pete V. were standing near different corners of Pete V.'s pickup truck when Nix pulled his gun. Pete V. also testified that he was on a different side of the pickup from David H. It not plausible that David H. was mistaken about Nix's aim.
Third, Nix speculates that his gun wavered inadvertently in David H.'s direction. This theory is speculative and directly contrary to Nix's testimony at trial that he never aimed at David H. And in any event, Nix never raised inadvertence as a defense at trial, so there is no reasonable probability the jury would have credited such a defense had it heard the permitting evidence.
Finally, recognizing that David H.'s statement, "Don't point that at me," on the 911 call is quite damning, Nix suggests the statement is equivocal because it can be construed either as a reaction to having the gun pointed at him or a warning to Nix not to start pointing the gun at him. This is unconvincing. The most obvious interpretation of the statement is the most natural: David H. wanted Nix to stop pointing his gun at him. It is also consistent with David H.'s other descriptions in the call of Nix's actions and his narration of Nix's statement that he and Pete V. would be Nix's first victims.
II. Instruction of no duty to retreat
Nix's second challenge to the judgment concerns the selfdefense instruction. As noted ante, there is no evidence in the record to support Nix's position that he needed to defend himself against David H. Any insufficiencies in the instruction were therefore harmless as it related to the charge of assaulting David H. (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1054 ["the trial court is required to instruct on a defense . . . only if substantial evidence supports the defense"].) Nonetheless, even if we assume for the sake of argument that Nix had the right to a self-defense instruction as to David H., Nix's challenge to that instruction fails.
In his opening brief, Nix argued that the trial court erred by not giving an optional paragraph of the self-defense instruction stating that a defendant has the right not to retreat before defending himself or herself. He argues a defendant has a right to an instruction that pinpoints the theory of the defense and California belongs to the majority of jurisdictions in which the victim of an assault can stand his ground and defend himself without first retreating. In his reply brief, however, Nix admits that when the victim of an assault is a non-felonious trespasser, as he was, the victim must first retreat to avail himself of the right to self-defense. He then proceeds to argue that retreat was impossible. Yet he continues to maintain he never lost his right to self-defense, despite being a trespasser. No matter how we construe these conflicting positions, Nix has not shown instructional error.
The optional paragraph reads, "A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of (death/bodily injury/<insert crime>) has passed. This is so even if safety could have been achieved by retreating." (CALCRIM No. 3470.)
"A trial court must instruct the jury, even without a request, 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." In addition, "a defendant has a right to an instruction that pinpoints the theory of the defense ...."' [Citation.] The court may, however, 'properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence.'" (People v. Burney (2009) 47 Cal.4th 203, 246.) "Even if proper, however, pinpoint instructions 'are not required to be given sua sponte.'" (People v. Hughes (2002) 27 Cal.4th 287, 361.) "We review a claim of instructional error de novo." (People v. Barber (2020) 55 Cal.App.5th 787, 798.)
As Nix and the Attorney General both agree, more than a century ago People v. Hecker (1895) 109 Cal. 451 (Hecker) summarized the principles of self-defense that govern here. Hecker explained, "Where one is the first wrongdoer, but his unlawful act is not felonious, as a simple assault upon the person of another, or a mere trespass upon his property, even though forcible, and this unlawful act is met by a counter assault of a deadly character, the right of self-defense to the first wrongdoer is not lost. For, as his acts did not justify upon the part of the other the use of deadly means for their prevention, his killing by the other would be criminal, and one may always defend himself against a criminal attempt to take his life." (Id. at p. 464.) Nix relies on this passage to support his claim that he did not lose his right to self-defense - which includes the right not to retreat - simply by trespassing on David H.'s land.
Hecker was superseded by statute as it relates to trespassers into a victim's home, but that is irrelevant here. (People v. Hardin (2000) 85 Cal.App.4th 625, 632-634.)
However, in the very next sentence, Hecker declared, "But in contemplation of the weakness and passions of men, and of the provocation, which, though inadequate, was wrongfully put upon the other, it is the duty of the first wrongdoer, before he can avail himself of the plea, to have retreated to the wall, to have declined the strife, and withdrawn from the difficulty, and to have killed his adversary, under necessity, actual or apparent, only after so doing. If, however, the counter assault be so sudden and perilous that no opportunity be given to decline or to make known to his adversary his willingness to decline the strife, if he cannot retreat with safety, then, as the greater wrong of the deadly assault is upon his opponent, he would be justified in slaying forthwith in self-defense." (Hecker, supra, 109 Cal. at p. 464.)
Under his own theory of the case, Nix was a simple trespasser who did not initiate the altercation. Hecker therefore dictates that if David H. met Nix with deadly force, Nix was entitled to defend himself because "one may always defend himself against a criminal attempt to take his life." (Hecker, supra, 109 Cal. at p. 464.) But, before he could take advantage of this right, Nix needed to retreat if he could do so safely. (Ibid.) Accordingly, the trial court correctly deleted the paragraph from the self-defense instruction that would have informed the jury that Nix was not required to retreat and was entitled to stand his ground even if safety could have been achieved by retreating.
Nix's arguments in his reply brief to avoid this result are unavailing. Giving these arguments the most generous construction, Nix's position seems to be that the trial court should have told the jury Nix had a duty to retreat but only if he had a safe opportunity to do so. Of course, Nix never offered such an instruction to the trial court, requesting instead that the trial court give the optional instruction about standing his ground, which, as we have already explained, would have been incorrect. (Cf. People v. Covarrubias (2016) 1 Cal.5th 838, 901 [" '[A] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' "].) Nix therefore forfeited any right to such an instruction.
In any event, the prosecution never elicited testimony that Nix was able to retreat, nor did the prosecution argue in closing that Nix could or should have retreated. Nix's claim of instructional error therefore fails: "No evidence was introduced that appellant considered retreating but chose not to do so or that appellant could have retreated but did not do so. Thus, an instruction on the right not to retreat was not required." (People v. Pruett (1997) 57 Cal.App.4th 77, 89; cf. People v. Rhodes (2005) 129 Cal.App.4th 1339, 1346 [trial court should have given instruction on right not to retreat where defendant testified he intended to drive away from confrontation but was afraid he would be fired upon].)
The instruction given by the trial court properly told the jury that Nix was entitled to self-defense if the jury found the prosecution had failed to disprove its elements beyond a reasonable doubt. The jury thus had no reason to question whether Nix lost the right of self-defense by failing to retreat. And if the jury was not told that Nix had a duty to retreat, it is entirely speculative to suggest that its guilty verdict was based on an improper belief that Nix should have retreated. (Cf. People v. Johnson (2009) 180 Cal.App.4th 702, 711 [where jury instructions assumed that victim was not justified in using force to eject defendant from property and that defendant had not lost the right of self-defense by being the aggressor or engaging in mutual combat, no error in refusing to instruct jury on those points].)
Finally, even assuming the trial court should have delivered an instruction on the right not to retreat, such an error was not prejudicial in this case under either the federal or state standards. (People v. Gonzalez (2018) 5 Cal.5th 186, 199 [California Supreme Court has "yet to determine whether a trial court's failure to instruct on a requested affirmative defense instruction supported by substantial evidence is federal constitutional error or state law error"]; People v. Barber, supra, 55 Cal.App.5th at p. 799 [error in refusing to give a requested pinpoint instruction is reviewed under People v. Watson (1956) 46 Cal.2d 818, 836].)
Nix accuses the prosecution of improperly taking advantage of the lack of a instruction about the right not to retreat by arguing in closing, "A lot of people might have heard about other situations and thought about other cases that they've heard over the years where different self defense principles might apply[.] This is the law that you're given, what are in the four corners of these instructions. So if you have other concepts in your mind like castle doctrine or no duty to retreat, they don't apply. You're not going to see those words in these instructions." The slight implication in the prosecutor's remarks that the duty to retreat rule applied does not sway us. The prosecutor's formulation, with the double negative ("concepts . . . like . . . no duty to retreat . . . don't apply"), was somewhat confusing and oblique. The more direct takeaway from the prosecutor's remarks was that the jury should look at the instructions themselves, which said nothing about a duty to retreat. That instruction gave Nix the benefit of the theory of self-defense and did not give the jury the option of concluding he should have retreated.
Nor did the prosecutor gain any advantage from the remark. As noted ante, there was no evidence that Nix could have retreated or had a duty to do so, and the prosecution never argued he could or should have retreated. (Cf. People v. Rhodes, supra, 129 Cal.App.4th at pp. 1346-1347 [finding prejudice from lack of instruction regarding right not to retreat where prosecutor argued the defendant did not have the right to stand his ground].) It is therefore immaterial whether an instruction would have allowed Nix to tell the jury that he did not need to retreat from Pete V. and David H., as he repeatedly argues. Additionally, as the Attorney General notes, Nix denied even pointing the gun at David H. There is no reasonable probability that an instruction on the lack of a duty to retreat would have swayed any juror who was otherwise convinced of Nix's guilt.
Nix believes an instruction that he had no duty to retreat would have allowed him to argue to the jury that it was reasonable for him to hold his weapon by his side while waiting for the police to arrive. Under the prosecution's theory, the assault was complete when Nix pointed the gun at David H. after charging Pete V. The prosecutor did mention Nix's choice to hold the gun by his side in a summary of the evidence. But Nix ably explained that behavior by arguing the right to self-defense extends until the defendant believes the risk of harm no longer exists. An instruction that Nix did not have a duty to retreat would have added little.
III. Cumulative error
In his final argument, Nix contends that the trial court's errors cumulatively deprived him of his constitutional rights to due process, to present a defense, and to confront the witnesses against him. For this argument, Nix relies on his arguments about the exclusion of the permit-related evidence and the failure to instruct on the duty to retreat, as well as five different evidentiary rulings.
"[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844.) "A claim of cumulative error is in essence a due process claim and is often presented as such [citation]. 'The "litmus test" for cumulative error "is whether defendant received due process and a fair trial." '" (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436.)
We have already concluded that it was at most harmless error to exclude the evidence of David H.'s permit and either not error or harmless error to omit an instruction on the right not to retreat. We need not examine Nix's other evidentiary arguments. Even if the trial court should have allowed the testimony to which it sustained objections, it would not amount to cumulative error. Nix's trial was fair, and he was able to present the substance of his defense to the jury, despite the rulings which Nix challenges. The jury sided with the prosecution over Nix on the charge of assaulting David H., but that verdict means only that Nix failed to persuade them of his defense theory, not that he was prevented from presenting it.
DISPOSITION
The judgment is affirmed.
WE CONCUR: GOLDMAN, J., HIRAMOTO, J. [*]
[*]Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.