Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA071730. Richard R. Romero, Judge.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
A jury convicted Israel Ramirez (appellant) of one count of first degree murder (Pen. Code, § 187, subd. (a)) and found true the allegation that he personally used a deadly and dangerous weapon, a knife (§ 12022, subd. (b)(1)). The trial court sentenced appellant to 26 years to life. The sentence consisted of 25 years to life for the murder and a consecutive one-year term for the weapon allegation.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals on the grounds that (1) the trial court committed prejudicial error in excluding evidence of the victim’s character for violence; (2) the trial court committed prejudicial error in failing to instruct sua sponte that the jury must determine whether premeditated murder, and not just murder, was a natural and probable consequence of assault with a deadly weapon; (3) the trial court committed prejudicial error in instructing the jury that it could not consider voluntary intoxication in determining appellant’s guilt under the doctrine of natural and probable consequences; (4) remand for resentencing is required because the trial court erroneously believed it did not have discretion to strike the deadly-weapon enhancement; (5) the trial court erred in failing to award full presentence credits; and (6) the abstract of judgment should be corrected to delete an inconsistency. We affirm with directions.
FACTS
Prosecution Evidence
On September 4, 2006, Rosaura Gutierrez (Rosaura) heard her son, Randolfo Gutierrez (Gutierrez), arguing with someone outside their Long Beach apartment. She went outside and saw that Gutierrez was arguing with Cesar Villagrana (Villagrana) in the alley. Rosaura heard her son say, “If you’re going to stab me, do it already.” Appellant and a girl were also in the alley. Rosaura saw that Villagrana was angry, and she asked what was going on, but no one paid attention to her. Rosaura saw appellant throw something to Villagrana. Rosaura stepped in between Villagrana and her son, and Villagrana pushed her aside. The girl with Villagrana spoke, and when Gutierrez turned to her, Villagrana attacked him. Villagrana reached over Rosaura’s shoulder and hit Gutierrez with something shiny. Villagrana then grabbed Gutierrez by the neck with the help of appellant and the girl. Rosaura saw appellant doing something to her son, but she could not see his hands because her head was behind her son’s back. Rosaura tried to grab her son by the arm, but he kept slipping away because there was so much blood on his arm. As Villagrana held Gutierrez in a headlock with his right hand, he rained blows upon him with his left hand. Rosaura could feel the blows because she was trying to pull Gutierrez away from Villagrana by holding onto Gutierrez’s stomach. Rosaura did not know if Villagrana was hitting Gutierrez or cutting him, but she herself was cut in the arms.
Villagrana was tried along with appellant, but the two defendants had separate juries.
The fight moved over toward a red car, and appellant helped Villagrana move Gutierrez. Rosaura saw a wound on her son’s neck. Rosaura was continually hitting Villagrana in an attempt to stop him, and she finally grabbed his private parts. Rosaura was being dragged by Villagrana as she held onto him, and she received leg and foot injuries before she finally fell. Villagrana, appellant, and the girl released Gutierrez and ran toward a silver car, and Gutierrez left the scene. Appellant, Villagrana and the girl drove away. Rosaura ran to look for her son, and she found him in a nearby apartment, close to death.
Paul Gliniecki, a medical examiner for the Department of the Coroner in Los Angeles, performed an autopsy on Gutierrez, who died as a result of multiple stab wounds. The stab wound to Gutierrez’s neck was the most rapidly fatal of his injuries, having cut both the jugular vein and the carotid artery. The knife-wound pattern was suggestive of a serrated knife. Gutierrez also suffered stab wounds in his back and on his ear. The other wounds may have been caused by a different knife, but it was impossible to determine. All his wounds were potentially fatal. There were superficial incised wounds on the chest and on the arm. The alcohol level in Gutierrez’s femoral blood was 0.14 percent. There were also traces of marijuana in the blood.
Detective Matthew Stolarski responded to the area of Virginia Court and Melrose Way where the stabbing occurred at approximately 10:38 p.m. He saw Gutierrez with multiple stab wounds lying between the entryway and the living room of an apartment unit. Gutierrez’s neck wound was spurting blood. Officer Edmund Moscoso also responded and searched the area for evidence. Under a broken car mirror he found a lighter, some business cards, and a traffic citation.
Alejandra Luna’s (Luna) apartment overlooks the alley where the stabbing occurred. She saw a car arrive and park in the alley. She identified appellant and Villagrana in court as the two men with the woman driver. She recognized appellant when he was in the alley because he had formerly been her neighbor. She recognized Villagrana also, since he used to visit her neighbor. Villagrana and appellant got out of the car, and Villagrana knocked on the door of the apartment upstairs. Villagrana was yelling out a name, which Luna understood as “Boss.” Luna had identified photographs of appellant and Villagrana for police. Appellant wore a baggy T-shirt that went down to his mid-thigh.
Ashonnette Akens’s (Akens) mother heard screaming and asked Akens to go outside. Akens saw his friend Daze fighting with two men and a woman. He then saw Daze getting jabbed in his neck and side. Akens identified a picture of Gutierrez (People’s exh. No. 1) as Daze. Akens’s mother went outside and yelled out at the attackers. The attackers stopped, got in a car, and left. Akens identified Villagrana in court as one of the attackers. Akens had seen him two or three times before the attack and knew him as “Orange County.” He was stabbing Gutierrez while the other man and the woman held Gutierrez by his arms. The knife the stabber used was about eight inches long. When the attackers fled, Akens helped Gutierrez walk to his apartment where Akens’s sister called 911. Akens identified Villagrana’s photograph to police. Akens was not able to identify appellant. Akens did not see Gutierrez’s mother in the alley. When Akens looked for her, he found Gutierrez’s mother in her apartment sitting on the couch.
Before the stabbing incident, Akens had seen Gutierrez become involved in a fight between Villagrana and his girlfriend. Gutierrez told Villagrana, “That’s not how you treat a female.” Akens heard Villagrana threaten Gutierrez by saying, “I got you, Ese.” Akens testified that “Ese” is a derogatory term.
Elena Segarra (Segarra) heard screaming in the alley and went outside with her son, Akens. She saw two men and a lady, and one of the two men was stabbing Gutierrez. The one doing the stabbing was someone she had seen before, and she identified him in court as Villagrana. She did not see the other man’s face. She saw Villagrana slit Gutierrez’s throat. Gutierrez fell to the ground. She saw the other individual “poking him with the knife and everything on the side.” She later said she did not see a weapon in that person’s hand. Gutierrez ran toward the middle of the alley holding his neck with both hands. Segarra screamed out, “Daze, ” and Gutierrez walked towards her and her son before collapsing. Segarra took Gutierrez to her house where he bled heavily. Segarra did not see Gutierrez ’s mother in the alley.
Natividad Marroquin (Marroquin) lived near Melrose Way and Virginia Court, and she heard screaming and fighting on the night of September 4, 2006. She heard both men’s and women’s voices, and someone saying, “Come, son.” That person was pulling on Gutierrez. Marroquin’s car alarm was sounding because someone had broken the outside mirror. A gray car was also in the alley, blocking the way. Two men were grabbing one man. While one was holding the victim, the other one was hitting him with a jabbing motion. She identified Villagrana in court as one of the men. She had seen Villagrana about two months’ earlier when he entered her open garage and asked her to tell the police she was his mother if they asked. Someone had called the police because Villagrana had been screaming and “saying things.”
Mayte Zamora (Zamora) is Villagrana’s girlfriend and the mother of his child. She identified appellant as Villagrana’s stepbrother. Villagrana’s father’s name is Rigoberto Villagrana (Rigo). Zamora told police in her recorded interview that Rigo used to live in Long Beach near 4th Avenue and Virginia Court. She visited Villagrana in his home there two or three times. One day Zamora and Villagrana were arguing in the alley and Gutierrez “just got into it.” Then Gutierrez and Villagrana began arguing. Zamora was arguing with Villagrana because he had called Angela Estrada (Estrada) to pick him up, and when Estrada arrived she kissed Villagrana in front of Zamora. Estrada told Zamora that she had had sex with Villagrana. Villagrana left with Estrada, and Gutierrez then took Zamora to a place where she could use the telephone. Villagrana made no threat to Gutierrez. Zamora knew someone named Voss who lived on the alley near Villagrana’s father. Villagrana and Voss worked together.
Detective Scott Lasch investigated Gutierrez’s homicide. The name on the citation found in the alley was Villagrana’s. Detective Lasch showed Luna single photographs of two men-appellant and Villagrana-because she said she knew who the men were due to their having previously lived in that apartment complex. Rosaura was shown a six-pack in which appellant’s picture appeared, but she did not identify him. Detective Lasch wrote in his report that the second suspect (appellant) did not get involved in the fight.
Several months after the stabbing, Detective Lasch saw Segarra and asked if she would talk to him. Segarra told Detective Lasch that she was scared people would come and do something to her and her family. Segarra was still scared at the time of trial. About a week before the stabbing, Gutierrez brought a girl to Segarra’s home. The girl was “slapped up” and crying, and Segarra told her and Gutierrez to leave her home. On that day, Segarra saw Villagrana outside “all drunk and mad.” Segarra heard Villagrana tell Gutierrez that “he is gonna get his for getting involved.” Villagrana said “he was gonna get him and kill him” Segarra had identified Villagrana’s photograph and a photograph of the girl Gutierrez brought to her home.
Rosaura selected a photograph of Villagrana as one of the stabbers from photographs shown her by police. She told police the second man looked husky, but it could have been because of his loose clothing. She identified appellant and Villagrana as the attackers at the preliminary hearing. She also identified appellant at trial. She had seen both men a little over a week before the stabbing. On the day of the stabbing, both men had been in the alley all day. Rosaura identified the girl in the alley with the two men as Estrada when Estrada was presented to Rosaura at trial.
Detective Lasch interviewed appellant on September 16, 2006. Appellant was advised of his Miranda rights and said he wanted to talk to the detective and his partner. Appellant admitted stabbing Gutierrez in the back with a knife. He said Villagrana also had a knife and Gutierrez did not. The recording of appellant’s interview was played for the jury. Appellant identified photographs of Villagrana and Estrada during the interview.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Defense Evidence
Officer Fernando Jimenez of the Long Beach Police Department responded to the stabbing scene and spoke with Segarra. She described only one suspect who was cursing and stabbing Gutierrez.
Officer David Collazo spoke with Marroquin, who told him that she was asleep in her bedroom and did not see or hear anything. Officer Richard Weldin spoke with Akens, who said he was asleep at home and his mother woke him up. He went outside with her and saw a female holding back a male as if they were struggling. The male broke free from the female’s grasp and began to stab another male. He did not know who the female was and he did not remember what the male looked like. He could not identify any suspects.
Officer Luis Ramirez interviewed Rosaura two times on the day of the stabbing. Rosaura said she would not be able to identify the female with the two men. She did not see the first suspect with a weapon. She said her son threw a punch at the first suspect and hit him. She said she had never seen any of the suspects before. Rosaura never told Officer Ramirez that her son said, “If you’re gonna stab me, do it now.” On cross-examination, Officer Ramirez acknowledged that Rosaura told him the second suspect grabbed Gutierrez at one point.
Appellant took the stand in his defense. He had never been convicted of any crimes. Appellant was in custody at the time of trial and was afraid of being labeled a “snitch.” On the day of the stabbing, his stepfather had kicked him out of the house. He had nowhere to go. Villagrana arrived, and appellant went with Villagrana and Estrada in Estrada’s car to the liquor store. They bought 40-ounce bottles of beer, and appellant drank one or two of them. Appellant used to do drugs at the time and had “probably” done drugs on that day. Villagrana was also drinking and doing drugs. Villagrana was appellant’s stepfather’s son, but they had very little contact with each other.
When appellant’s mother told him that the police were looking for him, appellant telephoned the police and went to the station voluntarily. Before the interview, appellant believed Gutierrez had a knife and that is why he told the police that. After he gave his story, the detectives told him they did not believe Gutierrez had a knife. Appellant thought they must not have found a knife on Gutierrez, and so he just agreed with them. He thought he must have been mistaken, and he was trying to cooperate. At the time of the stabbing, appellant believed that Gutierrez had a knife because otherwise Gutierrez would not have attacked him “out of nowhere.” Also, he heard Gutierrez’s mother say, “My son, don’t do it.”
Appellant lied when he told police he took the knife from Gutierrez. Appellant had a knife in his pocket. He swung the knife at Gutierrez after Gutierrez attacked him. Appellant thought his life was in danger. Appellant never intended to kill Gutierrez, he just wanted to “get him away.” He aimed at the stomach, and he did not see the knife enter Gutierrez. He had no recollection of hitting Gutierrez, but he could have. He told the detectives he stabbed Gutierrez in the back because they told him where the wounds were. At the beginning of the interview, Detective Lasch told appellant that Gutierrez had one wound on the neck and two in the back. The knife appellant had was a kitchen knife. Appellant testified that he did not see Villagrana stab Gutierrez, and he did not remember telling Detective Lasch that he saw Villagrana with a knife. Appellant acknowledged that he and Villagrana threw the clothes they wore during the stabbing in the trash.
Appellant, Villagrana, and Estrada were in the alley that day because they had gone to Voss’s house at 4th and Magnolia to borrow money. Villagrana was yelling for Voss, and they finally met with him. The four of them then went driving down the alley. Estrada saw Gutierrez, leaned her head out the window, and said, “What are you looking at?” Appellant, Villagrana and Voss got out of the car, and Voss walked away. Gutierrez asked appellant if he was from C.K. When asked about his various statements on the recorded interview, appellant said he did not remember saying those things.
DISCUSSION
I. Exclusion of Testimony of Pablo Soler
A. Appellant’s Argument
Appellant contends that the trial court prejudicially abused its discretion when it excluded the testimony of Pablo Soler (Soler), a man who had an altercation with Gutierrez several months prior to the stabbing. According to appellant, Soler’s testimony was relevant to Gutierrez’s character or propensity for violence and was admissible with respect to appellant’s claim of imperfect or perfect self-defense. Appellant argues that his federal constitutional rights to trial by jury, to present a defense, to confrontation, to compulsory process, and to due process under the Fifth, Sixth, and Fourteenth Amendments were violated, and the conviction must be reversed.
B. Proceedings Below
The people raised an objection under Evidence Code section 352 to the defense proposal to present evidence regarding Gutierrez’s propensity for violence, as demonstrated by an attack on Soler. A lawyer had been appointed to represent Soler, and the lawyer informed the court that Soler believed there were three incidences in which he might incriminate himself on the stand, one of which was the falling out he had with Gutierrez in which there was some physical violence, and the others were an arrest for public drunkenness and an incident of domestic violence between him and his female companion.
Appellant’s attorney, Mr. Herzstein, informed the court that the evidence he sought to introduce was that of Gutierrez’s attack on Soler with a pipe, which occurred as Soler was throwing out some trash on November 24, 2005. A few weeks before the attack, Soler had accused Gutierrez of providing marijuana to his 13-year-old daughter and taking liberties with her. Gutierrez admitted to police that he hit Soler and showed the police the location of the pipe. Gutierrez made threats that were heard by Soler’s female companion. Also, after the pipe incident, Gutierrez told the woman, “I told you I was going to get him.”
Soler took the stand at the Evidence Code section 402 hearing. He stated that on November 24, 2005, Gutierrez came out from behind the trash dump and hit him on the head with a pipe that was in the trash. When questioned by the district attorney as to whether Soler had brandished a fork at Gutierrez a few days before and threatened him with it, Soler invoked the Fifth Amendment. The prosecutor next asked Soler if he had not scratched his wife on the back on June 11, 2009, and Soler invoked the Fifth Amendment.
Mr. Herzstein informed the court that he wished to ask Soler about the precedent to the fork incident. In the prior incident, Gutierrez became angry with Soler because Soler told Gutierrez to stop bothering his daughter. Gutierrez and four other people approached Soler, and Soler ran back to his house. Soler came out of his house with a fork and waved it at Gutierrez and the four other men. Upon inquiry from the trial court, Soler’s attorney stated that Soler had a valid Fifth Amendment privilege to the fork incident, since he came outside with the fork after having gone back to his home where he was safe.
Mr. Herzstein stated he was satisfied to inquire only about the incident where Gutierrez attacked Soler with the pipe. The prosecutor argued that, since the defense wished to put on evidence that Gutierrez was violent with Soler, the prosecutor should be allowed to put on evidence that Soler was violent as well, and there was more than one incident of that. Since Soler would not testify to those things, it was not fair to the prosecution. Defense counsel stated that the prosecutor could introduce the matter of the scratching incident, and the defense might even join in a stipulation that Soler was charged in that incident, although the case was later dismissed.
The trial court ruled that the probative value of the pipe incident was substantially outweighed by the danger of undue consumption of time, confusion of interests, and prejudice in that Soler could not be properly cross-examined. The trial court believed there would be a mini-trial regarding whether Soler had a character for violence or peacefulness, and the jury would be sidetracked into determining Soler’s character, which was not relevant in the case. Moreover, the probative value of the evidence was minimal and weak with respect to Gutierrez’s character for violence.
After Soler was excused, Mr. Herzstein stated he would like to call Segarra, who was Soler’s female companion. She would testify that Gutierrez made a threat after the “daughter dispute” that he was going to get Soler. Later, after the pipe incident, Gutierrez said to Segarra, “I told you earlier I was going to get him.” Segarra would describe how Soler was “bleeding all over” and the fact that police were called. Officer Valencia, who arrested Gutierrez, would testify that Gutierrez told a lady in passing that, “If he [the officer] lets me go, I’m gonna fuck him up.” As Gutierrez passed by Soler, who had just identified him, Gutierrez stated, “Fuck, yeah, I did it, homie.” Gutierrez took Officer Valencia to the place he had hidden the pipe. Officer Harris would testify that Soler had a laceration to his head that was approximately two inches long and a quarter-inch wide, and he was bleeding profusely from his head and onto his face.
The prosecutor argued that all of this testimony was hearsay. The prosecutor also pointed out that if one looked at the entirety of Gutierrez’s statement about this incident, one would see that Gutierrez said Soler had previously tried to “shank” him. This referred to the incident about which Soler refused to testify and led to the area of Soler’s character for violence and the reasons the pipe incident occurred. Another portion of Gutierrez’s statement to the police included the information that Soler was always fighting with his wife, and that Gutierrez said to Segarra, “why are you protecting him?” Soler denied attacking his wife to police. The prosecutor stated, “So we just get into this huge thicket that has really nothing to do with this case.” The prosecutor argued that under Evidence Code section 352, the testimony of the proposed witnesses should be excluded as foreign to what was really at issue in the case.
The court ruled that the evidence of Segarra and the officers was inadmissible and found that this evidence would involve even more of a mini-trial, involving issues of Soler’s character and Gutierrez’s knowledge of Soler’s character for violence, such as his knowledge about Soler’s prior violence against Segarra. All of this would turn into “a messy mini trial, confusing the jury as well as the judge, perhaps.” The jury would have to unravel all the witnesses and determine who was the more violent person. It was a tangled web that would result in only minimal probative evidence of possible extenuating violence by Gutierrez under circumstances where he was accused of “horrible things with a minor child, ” and it was very different from the instant case.
C. Relevant Authority
A trial court “in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
The trial court’s exercise of its broad discretion to exclude evidence under Evidence Code section 352 “will not be disturbed on appeal absent a clear abuse; i.e., unless the prejudicial effect of the evidence clearly outweighs its probative value.” (People v. Karis (1988) 46 Cal.3d 612, 637.) The trial court’s ruling will be disturbed only if it “exceeds the bounds of reason, all circumstances being considered.” (In re Lawanda L. (1986) 178 Cal.App.3d 423, 428.)
Absent specified exceptions, character evidence is generally inadmissible to prove conduct on a specified occasion. (Evid. Code, § 1101, subd. (a).) Evidence Code section 1103 creates such an exception, providing that evidence of a crime victim’s character is not inadmissible when offered by the defendant to prove the conduct of the victim in conformity with the character or trait of character. (Evid. Code, § 1103, subd. (a).)
“‘It has long been recognized that where self-defense is raised in a homicide case, evidence of the aggressive and violent character of the victim is admissible.’... Under Evidence Code section 1103, such character traits can be shown by evidence of specific acts of the victim on third persons as well as by general reputation evidence.” (People v. Wright (1985) 39 Cal.3d 576, 587, citations omitted.)
“There are... exceptionally few caveats to the proposition that the right to introduce evidence necessarily implicates the responsibility to permit [that evidence] to be fairly tested.” (Fost v. Superior Court (2000) 80 Cal.App.4th 724, 736.) Where a witness refuses to undergo proper cross-examination with respect to material issues and thereby precludes the prosecutor from adequately testing the defendant’s direct testimony, “the striking out or partial striking out of direct testimony is common, and has been allowed even where the result was to deprive a criminal defendant of the fundamental constitutional right to testify in his own behalf.” (Ibid; see People v. Price (1991) 1 Cal.4th 324, 421 [“If a witness frustrates cross-examination by declining to answer some or all of the questions, the court may strike all or part of the witness’s testimony”]; see also People v. Reynolds (1984) 152 Cal.App.3d 42, 47 [trial court did not abuse its discretion in striking criminal defendant’s testimony in its entirety after defendant refused to answer cross-examination questions directed to the identity of his accomplices in the crime; such refusal effectively denied the prosecution opportunity for effective cross-examination].)
D. No Abuse of Discretion
We conclude the trial court did not abuse its discretion in excluding Soler’s testimony. We disagree with appellant’s assertions that the proffered evidence to substantiate Gutierrez’s violent character was not weak and minimal, that the evidence would not involve undue consumption of time or confusion of the issues, and that allowing Soler’s testimony would not have involved prejudice to the People.
Soler would have testified only that appellant attacked him with a pipe as Soler was emptying his trash. By Soler’s invocation of his Fifth Amendment right, the prosecutor would have been prohibited from questioning Soler as to the background to Gutierrez’s and Soler’s conflict. The jury would have been left with the impression that Soler was an innocent victim of a random attack by Gutierrez. (See Denham v. Deeds (9th Cir. 1992) 954 F.2d 1501, 1503 [testimony properly excluded where defense witness said thieves gave stolen items to defendant, but witness refused to explain his own relationship to the thieves or how he introduced them to defendant].)
Moreover, the proffered evidence would have necessarily involved a mini-trial if defense counsel had been permitted to call Soler and/or Segarra and two police officers to testify about Gutierrez’s alleged threats to Soler. This latter testimony would also have excluded any input that tended to show that Soler may have provoked the incidents with Gutierrez. Although appellant insists that Soler’s character was not at issue, the prosecutor was entitled to explore the background of Soler’s relationship with Gutierrez in order to contrast that circumstance with the absence of any relationship at all with appellant. Otherwise, the jury would have been misled. “Counsel often cannot know in advance what pertinent facts may be elicited on cross-examination. For that reason it is necessarily exploratory; and the rule that the examiner must indicate the purpose of his inquiry does not, in general, apply. [Citations.] It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what fact a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. [Citations.]” (Alford v. United States (1931) 282 U.S. 687, 691–692.)
Finally, appellant argues that hitting Soler over the head with a pipe was less inflammatory than the knife assault that led to Gutierrez’s death. Evidence of Gutierrez striking a blow to a person’s head with a three foot pipe with right angle fittings that caused profuse bleeding was inflammatory enough, especially since the jury would be given no context for the attack. Contrary to appellant’s assertions, Soler was not invoking his privilege as to mere collateral matters. Rather, the matters he did not wish to discuss related to the reasons for his feud with Gutierrez, which included Soler’s abuse of Segarra.
Moreover, the probative value of the evidence was not enormous, as appellant claims. The jury was undoubtedly aware that Gutierrez was not a model young man, as appellant alleges. The coroner testified about the levels of alcohol and marijuana in his blood. There was evidence that he was a willing participant in the argument with Villagrana, Estrada, and appellant, and that he ignored his mother’s entreaties to leave the matter alone and return home. Appellant testified that Gutierrez was “mad-dogging” Villagrana and Estrada as they drove down the alley.
In addition, as the trial court stated, the pipe incident was very different from the confrontation that led to the stabbing. The incident with Soler would have shown only that Gutierrez engaged in a planned attack on a neighbor for some reason (of which the jury would not have been apprised), whereas in the instant case, Gutierrez was merely standing unarmed in the alley when four people got out of a car and challenged him, two of them armed with knives. The incident between Soler and Gutierrez had weak probative value of Gutierrez’s violence against a challenger like appellant, even if it showed that Gutierrez could be violent. Moreover, the incident with Soler occurred approximately nine months before the stabbing, and there were no other incidents of Gutierrez’s violent character to report. This one incident, therefore, had minimal probative value, as the trial court found.
It is true that a trial court “should... consider if less severe remedies are available before employing the ‘drastic solution’ of striking the witness’s entire testimony. [Citation.] These include striking part of the testimony or allowing the trier of fact to consider the witness’s failure to answer in evaluating his credibility.” (People v. Seminoff (2008) 159 Cal.App.4th 518, 526.) However, appellant does not suggest what less drastic remedy the trial court should have applied. In any event, we cannot see any other feasible remedy. Had Soler testified, he would have presumably given only his side of the story, devoid of any meaningful context.
In any event, appellant was not prejudiced by the exclusion of Soler’s limited testimony under any standard. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) The jury was instructed that self-defense required the defendant to use no more force than is reasonably necessary to defend against the danger of being killed or suffering great bodily injury. Appellant admitted to detectives that Gutierrez had no knife and that he and Villagrana had knives. Appellant claimed that Gutierrez attacked him but did not explain the nature of the purported attack. Gutierrez was already turned away from appellant when appellant stabbed Gutierrez in the back, by appellant’s own admission.
Finally, the testimony of the various witnesses was not so widely discrepant that it aided appellant’s claim of self-defense, as he claims. Although there were different accounts as to how many people were involved in the stabbing incident, there was no testimony that directly supported appellant’s self-defense claim. And although the jury members were sympathetic to appellant, it may have been because of his demeanor and young age, and/or their perception of Villagrana, who appeared to be the leader in the activities that day.
The jury sent the trial court a note asking, “Is there such a thing as a verdict of guilty of 1st degree murder with a recommendation for leniency? If so how do we write this up?” The trial court replied, “No. You must reach your verdict without any consideration of punishment.”
In sum, the trial court did not abuse its discretion in excluding Soler’s testimony, and appellant suffered no violation of his federal constitutional rights to trial by jury, to present a defense, to confrontation, to compulsory process, and to due process under the Fifth, Sixth, and Fourteenth Amendments.
II. Instruction on Doctrine of Natural and Probable Consequences
A. Appellant’s Argument
Relying on People v. Hart (2009) 176 Cal.App.4th 662 (Hart), appellant contends that the trial court erred by not instructing sua sponte that appellant was guilty of premeditated murder only if the jury found that premeditated murder, and not merely murder, was the natural and probable consequence of the target crime. According to appellant, insofar as the jury based its verdict on the doctrine of natural and probable consequences-and it is reasonably likely that it did so-the error was prejudicial on the degree of murder found by the jury. Appellant claims that the erroneous instruction violated his federal constitutional right to trial by jury and to due process under the Sixth and Fourteenth Amendments, and reversal of the premeditation finding is required.
B. Proceedings Below
The trial court instructed the jury on the concept of natural and probable consequences with CALCRIM No. 403 as follows: “To prove that the defendant is guilty of murder, the People must prove either that the defendant committed murder, that the defendant aided and abetted murder, or that: 1, the defendant is guilty of committing, or aiding and abetting the commission of, assault with a deadly weapon; 2, During the commission of assault with a deadly weapon, a coparticipant in that assault with a deadly weapon committed the crime of murder; and 3, Under all the circumstances, a reasonable person in the defendant’s position would have known that the commission of the murder was a natural and probable consequence of the commission of the assault with a deadly weapon. A coparticipant in a crime is the perpetrator or anyone who aided and abetted the perpetrator. It does not include a victim or innocent bystander. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence. If the murder was committed for a reason independent of the common plan to commit the assault with a deadly weapon, then the commission of murder was not a natural and probable consequence of assault with a deadly weapon. To decide whether the crimes of murder and assault with a deadly weapon were committed, please refer to the separate instructions that I will give you on those crimes.”
C. Relevant Authority
In criminal cases “‘[a] trial court has a duty to instruct the jury “sua sponte on general principles which are closely and openly connected with the facts before the court.”’” (People v. Gutierrez (2009) 45 Cal.4th 789, 824; see People v. Breverman (1998) 19 Cal.4th 142, 154.) We review de novo a claim that the trial court failed to properly instruct the jury on the applicable principles of law. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)
D. No Prejudicial Error in Instruction on Doctrine of Natural and Probable Consequences
In Hart, defendant Hart and an accomplice, Rayford, attempted an armed robbery of a liquor store. Hart shot the owner of the liquor store, and he and Rayford were convicted of, inter alia, attempted robbery and premeditated attempted murder. (Hart, supra, 176 Cal.App.4th at p. 665.) The jury was given instructions that it could find both men guilty of attempted murder if it found that attempted murder was a natural and probable consequence of attempted robbery. (Id. at p. 669.) On appeal, Rayford argued that the instructions erroneously precluded the jury from finding him guilty of unpremeditated attempted murder. (Id. at p. 668.)
The Hart court found that the instructions were insufficient. (Hart, supra, 176 Cal.App.4th at pp. 668, 673.) The jury was not informed that, in order to find the accomplice guilty of attempted premeditated murder, “it was necessary to find that attempted premeditated murder, not just attempted murder, was a natural and probable consequence of the attempted robbery.” (Id. at p. 673.) The evidence in Hart could have supported a finding that attempted unpremeditated murder was a natural and probable consequence of the attempted robbery, but that attempted premeditated murder was not. (Id. at p. 672.) The court reasoned: “The trial court properly instructed the jury concerning premeditation and deliberation, as it relates to attempted murder, stating, in essence, that it is a subjective state of mind. However, in determining whether the premeditation and deliberation element was a natural and probable consequence of the attempted murder, the jury does not look at the aider and abettor’s subjective state of mind. Therefore, the general instruction concerning the premeditation and deliberation element of attempted murder did not properly inform the jury concerning its duty with respect to the natural and probable consequences doctrine.” (Id. at p. 673.)
Hart concluded that, when a defendant’s liability for attempted first degree murder is the result of his being an accomplice under a natural and probable consequences theory, the trial court has a sua sponte duty to instruct the jury that it must determine whether premeditation and deliberation, as it relates to the attempted murder, is a natural and probable consequence of the target crime. (Hart, supra, 176 Cal.App.4th at p. 673.) Attempted premeditated murder is the functional equivalent of a greater offense than unpremeditated attempted murder, and if the trial court fails to so instruct, it leaves the jury with the erroneous impression that it may not find the aider and abettor less culpable than the principle. (Id. at pp. 672, 674.)
Appellant applies the reasoning of Hart to argue that the jury should have been instructed that unpremeditated murder was a natural and probable consequence of the assault with a deadly weapon. Assuming the jury applied the natural and probable consequences doctrine to appellant’s case, Hart is distinguishable because a finding of first degree, premeditated murder was the only natural and probable consequence of the target crime. Appellant got out of the car with three other individuals after heated words were exchanged with the victim. Appellant was armed with a knife. He knew that Villagrana was not only armed, but had taken out his knife and held it in his hand. Appellant also knew the victim was not armed. Under these circumstances, the evidence supported a finding that a reasonable person in appellant’s position would have known that a premeditated murder was likely to occur if nothing unusual intervened. (See CALCRIM No. 403.). In Hart, the target crime was an attempted robbery in which the weapon was incidental to the crime and might never have been fired by Rayford’s coparticipant in the robbery. Here, the target crime was a knife attack by Villagrana and appellant on the unarmed victim. Appellant himself wielded a knife and stabbed the victim. Thus, it was not “theoretically possible for the jury to conclude that [Villagrana] premeditated the [assault with a deadly weapon] but that such premeditation was not a natural and probable consequence of the [assault with a deadly weapon].” (See Hart, supra, 176 Cal.App.4th at p. 672.) In this case, the facts lead “ineluctably” to the conclusion that premeditated murder was the only natural and probable consequence of the assault with a deadly weapon. (See ibid.) There was no violation of appellant’s federal constitutional right to trial by jury and to due process under the Sixth and Fourteenth Amendments.
III. Instruction Regarding Voluntary Intoxication
A. Appellant’s Argument
Appellant contends that the trial court should have instructed the jury that appellant’s voluntary intoxication could negate the specific intent required for aiding and abetting the assault. Instead, the trial court limited its voluntary intoxication instruction to the mental state for commission of the murder, and it specifically ordered the jury not to consider it for any other purpose. Therefore, the trial court prejudicially erred. The error violated appellant’s federal constitutional right to present a defense and to trial by jury and due process under the Sixth and Fourteenth Amendments. If the error is deemed forfeited, appellant argues that his counsel was ineffective for failing to request a correct instruction.
B. Relevant Authority
As we stated previously, a trial court has a sua sponte duty to instruct the jury on general principles that are closely and openly connected with the facts of the case. (People v. Gutierrez, supra, 45 Cal.4th at p. 824.) We review appellant’s claim de novo. (People v. Martin, supra, 78 Cal.App.4th at p. 1111.)
Section 22, subdivision (b) provides that “[e]vidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.” “[T]he intent requirement for aiding and abetting liability is a ‘required specific intent’ for which evidence of voluntary intoxication is admissible under section 22.” (People v. Mendoza (1998) 18 Cal.4th 1114, 1131–1132; see also People v. Curry (2007) 158 Cal.App.4th 766, 786.)
C. Proceedings Below
The trial court instructed the jury on voluntary intoxication with CALCRIM No. 625 as follows: “You may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill, or the defendant acted with deliberation and premeditation. A person is voluntarily intoxicated if he becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. You may not consider evidence of voluntary intoxication for any other purpose.”
D. Appellant Not Prejudiced
At the outset, we conclude that appellant has not forfeited this issue by failing to request further instruction on voluntary intoxication, as respondent argues. It is true that a trial court has no duty to instruct sua sponte on the relevance of voluntary intoxication. (People v. Castillo (1997) 16 Cal.4th 1009, 1014.) Nevertheless, since the trial court did give some instruction on voluntary intoxication, it was obliged to do so correctly. (Id. at p. 1015.) Therefore, we must determine whether the trial court prejudicially erred.
We conclude appellant was not prejudiced by the failure to instruct on the effect of voluntary intoxication on appellant’s intent to aid and abet the assault, the target crime in the instruction on natural and probable consequence. In order to find appellant guilty under the doctrine of natural and probable consequences, the jury was not required to find that appellant aided and abetted the assault. The jury could find that appellant himself committed an assault with a deadly weapon. (See CALCRIM No. 403.) Under the circumstances of the instant case, by appellant’s own admission, this is clearly what occurred. Appellant told Detective Lasch that he had a knife when he got out of the car with Villagrana, who was also armed with a knife. Appellant said that he took out his knife when Gutierrez took a swing at him, and he stabbed Gutierrez three or four times on the right side of Gutierrez’s back. There was testimony that this occurred while Gutierrez was restrained. Therefore, any error in failing to instruct on the effect of voluntary intoxication on the intent required to find appellant aided and abetted the assault was harmless under any standard. (Chapman v. California, supra, 386 U.S. 18; People v. Watson, supra, 46 Cal.2d 818.)
IV. Sentencing on Deadly-Weapon Enhancement
A. Appellant’s Argument
Appellant contends the trial court believed it lacked discretion not to impose sentence on the enhancement under section 12022, subdivision (b), which was based on appellant’s use of a deadly weapon. He argues that the case should be remanded for resentencing so that the trial court can decide whether the enhancement should be stricken under section 1385.
B. Proceedings Below
At the sentencing hearing, the prosecutor stated that the sentence was set by statute at 25 years to life for first-degree murder and an extra year for the knife use. Defense counsel stated to the trial court, “The only thing I’m really arguing with you about is the one year for the use of the knife. I think the court does have the option there to offer the 25 to life, and I would ask the court to consider that Mr. Ramirez was more of a follower. It was a member of his family who he was following. And the jury made its decision as the juries do, and I would ask, though, that-part of their decision was they thought perhaps there should be some leniency. Leave it at that.”
The trial court did not respond to this argument, but merely verified the number of custody credit days with defense counsel. After defense counsel waived formal arraignment and stated there was no legal cause to delay sentencing, the trial court stated, “In this matter, the sentence is prescribed by law. It is the judgment of the court probation is denied. Mr. Ramirez, you are sent to state prison for the term prescribed by law. That is 25 years to life.” The trial court then recited the fees and restitution owed and said, “The jury found personal use. I can’t dispute that. Plus one year for the personal use of the deadly and dangerous weapon, the knife.”
C. Relevant Authority
Section 12022, subdivision (b)(1), provides: “Any person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense.” A trial court retains discretion under section 1385 to strike the one-year deadly weapon enhancement of section 12022, subdivision (b)(1). (People v. Jones (2007) 157 Cal.App.4th 1373, 1380–1383.)
“It has long been settled that the burden is on an appellant to affirmatively show in the record that error was committed by the trial court: ‘[I]t is settled that: “A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.” [Citations.]’ [Citation.]” (People v. Alvarez (1996) 49 Cal.App.4th 679, 694.)
D. Remand Not Required
We believe appellant has failed to affirmatively show that the trial court was unaware of its discretion to strike the weapon enhancement. It is well established that, in the absence of evidence to the contrary, the trial court is presumed to have followed established law. (Ross v. Superior Court (1977) 19 Cal.3d 899, 913.) Although the trial court did not directly respond to defense counsel’s request to strike the enhancement, the trial court’s actions clearly indicate it rejected this request. The trial court’s remark that it could not dispute appellant’s personal use of a knife indicates that it saw no reason to strike the enhancement. There is no indication in the record that the result of a resentencing proceeding would be different, and we will not reverse for further proceedings when to do so would be “a useless and futile act and would be of no benefit to appellant.” (People v. Seldomridge (1984) 154 Cal.App.3d 362, 365.)
V. Presentence Credits
Appellant contends the trial court erred in granting appellant 1, 061 days of actual presentence credit instead of 1, 065 days. We agree with appellant that the record shows he was arrested on September 19, 2006, and was sentenced on August 18, 2009. The number of actual credit days to which he is entitled is therefore 1, 065. The abstract of judgment must be corrected to reflect the correct number of actual credit days.
VI. Errors in Abstract of Judgment
Appellant points out that his sentence of 25 years to life is not correctly reflected in the abstract of judgment. The abstract shows the sentence to be life with the possibility of parole (item No. 5), and it also shows a sentence of 26 years to life (item No. 6c).
We agree with appellant that only item No. 6 should be used to document appellant’s sentence. Specifically, item No. 6b should be checked to indicate a sentence of 25 years to life on count 1. We also note that item No. 2 is not filled out on the abstract of judgment. This requires a listing of the enhancements charged and found to be true and tied to specific counts. This section should be filled out to show appellant’s one-year enhancement in count 1 pursuant to section 12022, subdivision (b)(1).
DISPOSITION
The judgment is affirmed. The superior court is ordered to amend the abstract of judgment to reflect the correct sentence and the correct number of credit days and to forward a copy to the Department of Corrections and Rehabilitation.
We concur: BOREN P. J., CHAVEZ J.