Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF133411. Kenneth G. Ziebarth, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant Israel Rea appeals from judgment entered following a jury conviction for willfully inflicting corporal injury on a cohabitant, resulting in a traumatic condition. (Pen. Code, § 273.5, subd. (a).) The trial court granted defendant three years of formal probation and ordered him to serve 180 days in jail.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the trial court committed instructional error by (1) refusing to give instructions on the definitions of “traumatic condition” and “mutual combat”; (2) instructing on flight but refusing to instruct on the absence of flight; and (3) instructing the jury that defendant’s right to self-defense was restricted if he had engaged in “mutual combat” or was the “initial aggressor.” Defendant also argues the prosecutor committed misconduct by incorrectly telling the jury that defendant had the burden of proving he acted in self-defense.
We conclude there was no prejudicial error, either individually or cumulatively, and accordingly affirm the judgment.
1. Facts
At the time of the charged offense, defendant was living with Belen Contreras and Belen’s daughter, A.M., who was 10 years old. During the late afternoon on October 28, 2006, Belen and defendant arrived home from work. Belen saw defendant checking his phone and suspected he was erasing phone calls from other women.
At trial, Belen testified she became angry and grabbed defendant’s phone. After hitting defendant with the phone, she threw it and it broke into pieces. Belen and defendant began pulling each other. Belen did not recall who began pulling the other first. Defendant grabbed Belen by the wrists and forced her down on her back, with her hands above her head. Defendant squatted over her, holding her arms down. Belen screamed and swore at defendant. Belen told defendant she wished she could stab him with a knife. Defendant “slapped” her face twice. Defendant told her he did it because she was “out of control.” While slapping Belen, defendant grabbed her chin because she was screaming.
Belen testified that she threw a remote control at defendant. The remote missed defendant, hit the wall, and broke. Belen then went to the kitchen to get a pan to throw at defendant because he had hit her. Belen conceded that she had told the police that defendant had punched her in the face a few times, but stated on cross-examination that he slapped her. The slapping caused the bruises on her lips. Belen claimed defendant did not cause her eye injury. It happened when she slipped and hit her head on the doorknob and cut her eyebrow. On redirect, Belen said she did not remember if defendant punched her but did remember “two big blows.” She also said her jaw hurt for two days as a result of defendant punching her. Belen denied telling the officer that defendant had pushed her, causing her to hit her head on the wall.
By the time A.M. came home, the fight was over. Belen was crying. Belen asked A.M. to call the police because she was not sure how serious her wound was and she was angry that defendant had hit her. Defendant told her not to call the police because he did not want to be taken away and punished. Defendant tried to flee through the window and the front door, but did not succeed because Belen stopped him. Also, everything was locked and it was too late to leave because the police had arrived. Belen testified she had noticed scratches on defendant’s arms but did not see any other injuries.
Police Officer Fishell arrived at the scene at 4:31 p.m., a couple of minutes after A.M. had called the police. Officer Fishell testified that when he arrived Belen was crying and shaking. She had a bleeding cut above her right eye and a swollen lip. Belen told Officer Fishell that she and defendant had been arguing but would not tell him what they were arguing about. She said the argument escalated into a physical fight. Defendant punched her three to five times and pushed her to the ground. As defendant was pushing Belen down, he pushed her into a wall and hurt her head. Belen refused any medical aid. Officer Fishell did not see any bruises or injuries on defendant’s arms or hands.
Defendant was arrested and incarcerated. At Belen’s request, her sister posted bail for him.
At the preliminary hearing in April 2007, Belen blamed herself for the incident. She testified during the hearing that defendant did not hurt her, and that she was crazy and out of control at the time. Belen said she asked A.M. to call the police solely so that Belen could get medical treatment for her wound.
At trial, Belen testified that two days before the preliminary hearing defendant had asked her “not to say anything so he would not be affected,” and not to say that defendant had hit her because defendant did not want to do community service. At the time of the preliminary hearing, defendant and Belen were no longer living together but were still intimate about once a month, according to Belen.
Although Belen denied that defendant had made any threats to her regarding her testimony, she said that defendant had told her that, if her testimony affected him, “life takes a lot of turns. And you pay whatever you do in this life.” Belen said this made her feel “[l]ike something could happen to me.” Defendant told her to “be careful what [she] was about to do because [she] had daughters.” Because of defendant’s statement, she sent A.M. to live with her father. Belen said that both she and defendant were responsible for the fight.
A.M. testified at the trial that when she tried to enter the apartment, the front door was locked. She heard her mother screaming at her to call the police and heard her mother crying. Belen told A.M. three times to call the police and said she was hurt and bleeding. A.M. heard defendant say he had to leave before the police arrived. A.M. called 911. After the police arrived, she saw her mother and she looked “[b]ad.”
Defendant testified at trial that the fight started because Belen believed he was calling other women. Defendant denied hitting Belen first. He claimed that instead he tried to restrain her and calm her down. Belen made the first strike. She hit him repeatedly with the phone. Then she said she wished she had a knife to stab him. Defendant feared she would. Because Belen was kicking and punching defendant, he restrained her by getting on top of her and holding her arms. He also grabbed her chin.
When defendant thought Belen had calmed down, they got up, but then Belen continued to punch and kick him. Defendant tried to restrain Belen from behind. As she swung at defendant, she slipped and fell to the floor, hitting her head on the front door. Belen bruised and bit defendant while he was trying to restrain her. Defendant photographed his injuries, but Belen took away his cell phone with the photographs.
Defendant denied slapping or punching Belen and denied threatening her after the fight. Defendant told Belen he did not want to do community service if convicted, but also told her to tell the truth. Defendant testified he was scared for his safety during the fight. He feared Belen would hurt him. Defendant acknowledged he had been an amateur boxer, but said he did not offensively use any of his boxing skills when fighting Belen.
Defendant testified he tried to leave before the police arrived because he feared the police would jump to conclusions when they saw Belen bleeding. After Belen blocked the door and told him he was going to jail, defendant decided to stay and tell his side of the story.
Defendant’s mother, Elisa Andrade, testified she saw defendant and Belen the day after defendant was released from jail. Belen apologized for the incident and said she had been jealous. Elisa noticed that defendant had many bruises, a scratch on his lips, and bite marks on his arms. Belen had a Band-Aid on her face. Elisa did not notice Belen had any other wounds.
2. Instruction on the Term “Traumatic Condition”
Defendant contends the trial court erred in rejecting his proposed jury instruction defining the term “traumatic condition.” He argues the instruction provided by the court, Judicial Council of California Criminal Jury Instructions, CALCRIM No. 840, was too vague and broad to guide the jury adequately on the meaning of the term. Defendant asserts that further amplification on the term was required and his proposed instruction was proper.
During the trial, defendant argued that Belen did not suffer an injury resulting in a traumatic condition. He claimed slapping Belen twice, injuring her lip, and causing her to suffer jaw pain did not constitute a traumatic condition. Defendant also claimed that he did not cause Belen’s eye injury. She caused it when she tripped and hit her head on the doorknob. Defendant argues that his proposed instruction clarifying the meaning of the term “traumatic condition” would have resulted in the jury finding there was no traumatic condition.
When instructing on the crime of inflicting an injury on a cohabitant, resulting in a traumatic condition (§ 273.5, subd. (a)), the trial court explained to the jury that the People must prove, “one, the defendant willfully and unlawfully inflicted physical injury on his former cohabitant and, two, the injury inflicted by the defendant resulted in a traumatic condition and, three, the defendant did not act in self-defense.” (CALCRIM No. 840.)
The court further defined the term “traumatic condition” as “a wound or other bodily injury, whether minor or serious, caused by the direct application of physical force.” (CALCRIM No. 840.)
This definition of traumatic condition tracks the statutory definition stated in section 273.5, subdivision (c), which states: “‘[T]raumatic condition’ means a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force.”
Defendant urged the trial court to modify CALCRIM No. 840 by adding specific examples of types of injuries that qualified as traumatic conditions, as well as examples of injuries that did not qualify. Defendant’s proposed instruction stated: “A traumatic condition is a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force. For example, a black eye, bruise, or scar, is sufficient. However, a slap, soreness, tenderness, or emotional upset, is insufficient.”
During a discussion of the instructions, the trial court noted that the first sentence of defendant’s proposed instruction appeared to be identical to CALCRIM No. 840. Defense counsel agreed, but noted that the next two sentences in his instruction clarified or amplified what a traumatic condition is based on case law. The trial court said it would not deviate from the CALCRIM instruction. The court concluded the CALCRIM instruction was sufficient and defendant’s proposed instruction contained statements that were “a matter of argument.” The trial court rejected defense counsel’s argument and limited instruction on the definition of “traumatic condition” to CALCRIM No. 840.
This court is required to instruct on the “principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty ‘to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.’ [Citation.]” (People v. Saddler (1979) 24 Cal.3d 671, 681.)
In determining whether the trial court committed error in giving or not giving an instruction, we must consider the instructions as a whole and assume the jurors are intelligent persons capable of understanding and correlating all the jury instructions given. (People v. Kegler (1987) 197 Cal.App.3d 72, 80.) “[T]he proper test for judging the adequacy of instructions is to decide whether the jury was fully and fairly instructed on the applicable law....” (People v. Partlow (1978) 84 Cal.App.3d 540, 558.)
Here CALCRIM No. 840 provided adequate instruction on the meaning of the term “traumatic condition.” Therefore no other instruction was necessary. “There is no requirement that the jury be instructed in the precise language requested by a party.” (People v. Kegler, supra, 197 Cal.App.3d at p. 80.) The first sentence of defendant’s proposed instruction essentially duplicated CALCRIM No. 840. The remainder of the instruction provided examples, which were not necessary to defining the term. Furthermore, the statement that “a slap, soreness, tenderness, or emotional upset, is insufficient,” had the effect of declaring to the jury that Belen’s injuries were not traumatic conditions, which was a factual issue for the jury to decide. As the trial court noted, such instruction was argumentative and subject to dispute.
The jury was fully and fairly instructed on the applicable law. The trial court was not required to add defendant’s proposed statements giving specific examples of injuries falling within the definition of “traumatic condition” provided in section 273.5. CALCRIM No. 840, given to the jury, tracks the statutory definition stated in section 273.5 and this was sufficient for purposes of instructing the jury on the meaning of the term. Further clarification of the term by giving specific examples, as proposed by defendant, was unnecessary and inappropriate.
Defendant argues that, based on People v. Abrego (1993) 21 Cal.App.4th 133 [Fourth Dist., Div. Two] and People v. Beasley (2003) 105 Cal.App.4th 1078, his proposed modified instruction on the definition of “traumatic condition” was proper and should have been used since his instruction provided guidance and amplification under the law as stated in Abrego and Beasley. But Abrego and Beasley do not address the issue of whether the trial court is required to provide further guidance and amplification, in addition to that provided in CALCRIM No. 840, by stating specific examples of what does and does not constitute a traumatic condition. Abrego and Beasley only address whether there was sufficient evidence of a traumatic condition. Here, the standard CALCRIM No. 840 instruction was adequate.
3. Flight Instruction
Defendant contends the trial court erred in rejecting his proposed modified flight instruction, which added to the standard flight instruction, CALCRIM No. 372, language stating that the jury could infer consciousness of innocence based on defendant’s ultimate decision not to flee from the crime scene.
Belen testified defendant attempted to flee out the front door or through a window, but everything was locked and Belen stopped him by blocking the door. Before defendant had a chance to leave, the police arrived. Defendant acknowledged at trial that he initially attempted to flee. Defendant said he decided not to leave because he feared the police would “jump to conclusions” when they saw Belen bleeding, and he wanted to tell his side of the story.
Defendant requested the trial court to give the following modified flight instruction, CALCRIM No. 372: “If you find that Mr. Rea fled or tried to flee immediately after a crime was committed, that conduct may show that he was aware of his guilt. Or, if you find that Mr. Rea did not flee or try to flee immediately after a crime was committed, that conduct may show that he was not aware of his guilt. It is up to you to decide the meaning and importance of Mr. Rea’s conduct immediately after a crime, if any, was committed. Regardless, if you find that Mr. Rea fled or tried to flee immediately after a crime was committed, that conduct cannot prove guilt by itself.” The modified portion of CALCRIM No. 372 is in italics.
The trial court rejected defendant’s proposed modified instruction and gave the following standard flight instruction, CALCRIM No. 372: “If the defendant tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant tried to flee cannot prove guilt by itself.”
Defendant argues that since the court instructed on flight as showing consciousness of guilt, defendant had a reciprocal right to instruction on the absence of flight as showing a lack of guilt. Our high court in People v. Staten (2000) 24 Cal.4th 434, 459 (Staten) rejected this argument, holding that there is no reciprocal duty to instruct on the absence of flight, even on request. The Staten court explained that in People v. Green (1980) 27 Cal.3d 1, 39 and 40 (Green), the California Supreme Court “held that refusal of an instruction on absence of flight was proper and was not unfair in light of Penal Code section 1127c. We observed that such an instruction would invite speculation; there are plausible reasons why a guilty person might refrain from flight. [Citation.] Our conclusion therein also forecloses any federal or state constitutional challenge based on due process.” (Staten, supra, at p. 459; see also People v. Williams (1997) 55 Cal.App.4th 648, 652 (Williams).)
Section 1127c explains that: “In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. [¶] No further instruction on the subject of flight need be given.” There is no similar statutory requirement that the court must instruct the jury on the absence of flight.
Defendant argues Green, supra, 27 Cal.3d 1and Staten, supra, 24 Cal.4th 434are distinguishable, because in those cases there was no evidence the defendant ultimately decided not to flee or any explanation by the defendant why he did not leave. Here, there was no risk of speculation because defendant testified he decided not to leave because he wanted to tell his side of the story. Defendant also argues that, because the People raised the issue of defendant’s consciousness of guilt, defendant was entitled to an instruction allowing the jury to make a contrary inference where there was evidence defendant did not flee.
In Green, supra, 27 Cal.3d 1, one of the reasons why the court rejected instruction on the absence of flight was that there was inadequate evidence of absence of flight by the defendant. (Id. at p. 36.) Even though in the instant case defendant testified as to why he did not ultimately leave, such testimony was not conclusive and there remained other plausible reasons why he did not leave: “[E]vidence that a suspect did not flee when he had the chance was of little value as tending to prove innocence because there are plausible reasons why a guilty person might also refrain from flight: ‘He may very naturally have been deterred from making an effort to escape from a fear that he would be recaptured, and that his fruitless attempt to escape would be evidence of guilt; or he may have felt so strong a confidence of his acquittal, for want of the requisite proof of his guilt, that he deemed it unnecessary to flee.’” (Id. at p. 37, fn. omitted, quoting People v. Montgomery (1879) 53 Cal. 576, 577-578.)
In Green, supra, 27 Cal.3d 1, the court also noted that evidence of the absence of flight has been held to be inadmissible under Evidence Code section 352 as so ambiguous and laden with conflicting interpretations that its probative value on the issue of innocence is slight. (Id. at p. 39.) The Green court concluded that, even though there was evidence presented to show the absence of flight, the court was not required to instruct on the absence of flight because “the instruction would have injected a new issue into the jury’s deliberations and invited the kind of speculation that the Montgomery rule seeks to avoid. We conclude that the trial court did not err in refusing to give the proffered instruction.” (Ibid., fn. omitted.)
The court in Green further noted that, although many of the same criticisms raised in excluding instruction on the absence of guilt equally apply to instruction on flight, the prosecution is entitled to a flight instruction, not merely because evidence of flight is free of ambiguities or will not confuse the jury, but under statutory law, section 1127c, a flight instruction, is mandatory when supported by the record. Such is not the case with regard to the absence of flight. (Green, supra, 27 Cal.3d at pp. 39-40, fn. 26.)
In Williams, the court held that the failure to give sua sponte an instruction on the absence of flight was not error. (Williams, supra, 55 Cal.App.4that p. 653.) It was uncontested at trial that the defendant did not try to flee when an arresting officer approached him in connection with the burglary of a vehicle and requested the defendant to open the gate to the garage area where the stolen car was located. (Id. at p. 650.)
The court in Williams discussed the issue of whether the trial court’s failure to give an absence of flight instruction sua sponte violated the defendant’s due process and equal protection rights and concluded there was no such constitutional rights violation. The Williams court rejected the defendant’s contention that a sense of balance and reciprocal parity constitutionally required an instruction on the absence of flight. (Williams, supra, 55 Cal.App.4that p. 651.)
The Williams court noted that Green, supra, 27 Cal.3d 1 did not address this constitutional claim, but concluded the analysis in Green was instructive on the issue. In discussing the issue, the Williams court explained: “The absence of flight is of such marginal relevance that such evidence is often not even admissible.... The Montgomery court ‘held in effect that evidence that a suspect did not flee when he had the chance was of little value as tending to prove innocence because there are plausible reasons why a guilty person might also refrain from flight.’ [Citation.]” (Williams, supra, 55 Cal.App.4that p. 652, quoting Green, supra, at p. 37.)
People v. Montgomery, supra, 53 Cal. 576.
In contrast to the absence of flight, “the same cannot be said when a suspect flees the scene of a crime or flees after being accused of a crime. Although flight may also be subject to arguably innocent interpretation in certain contexts, and CALJIC No. 2.52 permits the jury to accord it appropriate weight under the circumstances, flight is significantly different than the absence of flight. Flight is by its nature an active, conscious activity which readily and logically tends to support the inference of consciousness of guilt, as described in CALJIC No. 2.52. Indeed, the inference of consciousness of guilt from flight is one of the simplest, most compelling and universal in human experience. [Citation.] The absence of flight, on the other hand, is far less relevant, more inherently ambiguous and ‘often feigned and artificial.’ [Citation.]” (Williams, supra, 55 Cal.App.4that p. 652.)
The Williams court noted that it did not “proscribe the broad discretion of the trial court in giving an appropriate instruction on the absence of flight when supported by the evidence and of sufficient relevance in the context of the case.” (Williams, supra, 55 Cal.App.4th at p. 652.) The Williams court did, however, conclude that due process did not require such instruction: “In contrast to the notion of reciprocal discovery rights, there is no fundamental unfairness in not requiring an instruction on the absence of flight. As previously discussed, unlike the flight of an accused from the scene of a crime or after accusation of a crime, the absence of flight presents such marginal relevance it is usually not even admissible. [Citation.] Since flight and the absence of flight are not on similar logical or legal footings, the due process notions of fairness and parity in Wardius [v. Oregon (1973) 412 U.S. 470] are inapplicable.” (Id. at p. 653.)
Here, we likewise conclude there was no due process requirement that the court instruct the jury on the absence of flight. Nor did the trial court abuse its discretion in rejecting defendant’s proposed instruction. And even if there was error, it was harmless under People v. Watson (1956) 46 Cal.2d 818. It is not reasonably probable that had the instruction been given the outcome would have been any different. (Id. at pp. 835-836.)
4. Self-Defense Instruction
Defendant contends the trial court erred in giving CALCRIM No. 3471, instructing the jury on the limitations to his right to self-defense, such as when there is “mutual combat” or when defendant is the “initial aggressor.” Defendant claims there was no evidence supporting limiting his right to self-defense.
“The trial court has a duty to instruct the jury on all principles of law relevant to the issues raised by the evidence [citation] and a correlative duty to refrain from instructing on irrelevant and confusing principles of law [citation].” (People v. Andersen (1994) 26 Cal.App.4th 1241, 1250) An instruction must be given only if it is supported by substantial evidence. Instructions on unsupported theories should not be given to the jury. (People v. Marshall (1997) 15 Cal.4th 1, 39-40.) Doubts as to the sufficiency of evidence warranting an instruction should be resolved in favor of the defendant. (People v. Duckett (1984) 162 Cal.App.3d 1115, 1125.)
The record reflects that both defendant and the People requested CALCRIM No. 3471 on self-defense restrictions. During a discussion of the jury instructions, the court stated it would give CALCRIM No. 3471, as well as the general self-defense instruction, CALCRIM No. 3470. Defense counsel requested that the proposed CALCRIM No. 3471 instruction state, “he or she,” rather than just “he,” since there was evidence that Belen was an additional aggressor. Over the prosecutor’s objection, the trial court agreed that “she” would be added to the instruction since it was disputed as to who was the initial aggressor.
The instruction given to the jury states:
The People argue defendant forfeited his objection to CALCRIM No. 3471 because he did not raise it in the trial court. In addition, the error was invited. We agree in both regards.
Generally, an appellant forfeits claims of error through inaction that prevent the trial court from avoiding or curing the error. (Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1117.) This general forfeiture rule is “grounded on principles of waiver and estoppel, and is a matter of judicial economy and fairness to opposing parties. [Citations.]” (Smith v. Commonwealth Land Title Ins. Co. (1986) 177 Cal.App.3d 625, 629.) This court will not reverse erroneous rulings that could have been, but were not, challenged below. (Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 546.)
There are, however, exceptions to the general forfeiture rule whereby certain issues may be raised on appeal despite the appellant’s failure to raise them in the trial court. Section 1259 provides this court with discretion to “review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” Here, defendant argues his fundamental constitutional rights to due process and a fair trial were violated by the trial court instructing on restrictions to defendant’s self-defense right, when there was no evidence supporting the restrictions.
We reject defendant’s request that this court consider, on the merits, his objection to the instruction, even though he did not raise it in the trial court. Defendant had an opportunity to raise the objection in the trial court and failed to do so. Giving CALCRIM No. 3471 did not sufficiently affect defendant’s fundamental constitutional rights, particularly since defendant requested the instruction and there was evidence supporting it. Defendant forfeited the objection.
In addition, this court rejects defendant’s objection to the trial court giving CALCRIM No. 3471 under the doctrine of invited error. “Under the doctrine of invited error, when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error.” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212.) Any error in giving CALCRIM No. 3471, which was requested by both parties, cannot be relied upon by defendant to justify a reversal because, if there was error, it was “invited” by defendant and therefore nonreversible. (People v. Eilers (1991) 231 Cal.App.3d 288, 295-296 [Fourth Dist., Div. Two].)
5. Instruction on Mutual Combat
Defendant contends the trial court erred in failing sua sponte to instruct on the definition of the term “mutual combat,” mentioned in the self-defense instruction, CALCRIM No. 3471. The parties did not request, and the court did not give sua sponte, the optional definition of “mutual combat” included in CALCRIM No. 3471, which states: “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.” (CALCRIM No. 3471.)
A trial court has a sua sponte duty to instruct on all general principles of law that are closely and openly connected with the facts of the case. (People v. Ervin (2000) 22 Cal.4th 48, 90.) In a criminal case, the general principles of the law include all the elements of the charged offense. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) If the elements of the offense include a term that has a technical legal meaning that is different from its common meaning, the court has a sua sponte duty to define that term. (People v. Elam (2001) 91 Cal.App.4th 298, 307.)
Defendant argues that the court was required to define “mutual combat” because the ordinary meaning includes any combat occurring when there is a reciprocal exchange of blows, regardless of whether there was a preexisting agreement to fight. Instruction on the legal definition of the term is required because the technical, legal meaning of “mutual combat” requires a preexisting agreement to fight. (People v. Ross (2007) 155 Cal.App.4th 1033, 1045.) Defendant argues that, because the definition was not given, the jury was essentially compelled to find that any exchange of blows disqualified him from claiming a right of self-defense, whereas under the legal definition of “mutual combat,” defendant did not engage in mutual combat because there was no preexisting agreement to fight.
Defendant’s reliance on People v. Ross, supra, 155 Cal.App.4th 1033is misplaced. The court in Ross did not require the trial court to define further the term “mutual combat” when there was no request by the jury or counsel or any demonstrated need for clarification. In Ross, there was a lack of evidence of mutual combat. Therefore, on appeal, the court in Ross found there was no basis for giving the mutual combat instruction limiting the defendant’s right to self-defense. (Id. at pp. 1052, 1054.) The failure to define mutual combat, after the jury requested a definition, made the problem worse.
Here, there was no objection to the mutual combat instruction. Both parties requested the instruction and neither party nor the jury requested further clarification or definition of the term mutual combat. Under such circumstances, the trial court was not required to provide sua sponte a definition of mutual combat and did not commit reversible error by failing to do so.
We further note CALCRIM No. 3741 was not limited to restriction of self-defense based on mutual combat. The instruction also limits self-defense to those who are initial aggressors. Jurors were instructed to ignore any instructions that were inapplicable. (CALCRIM No. 200.) It is presumed the jury did so. (People v. Rollo (1977) 20 Cal.3d 109, 123.) We thus conclude defendant failed to show he was prejudiced by the trial court not defining the term “mutual combat.”
If there was error in not defining the term, the error was harmless beyond a reasonable doubt. (People v. Flood (1998) 18 Cal.4th 470, 503-504; People v. Feinberg (1997) 51 Cal.App.4th 1566, 1576.) There was strong evidence that defendant had beaten Belen and that he was the aggressor, and thus he was not entitled to rely on self-defense. A.M.’s and Officer Fishell’s testimony supported such findings. Belen’s injuries also confirmed this. Furthermore, there was strong evidence showing that defendant was not acting in self-defense. Defendant, who was an amateur boxer, was bigger, heavier, and presumably stronger than Belen.
There was also evidence that a couple of days before the preliminary hearing, defendant had told Belen “not to say anything so he would not be affected.” As a consequence, Belen testified at the preliminary hearing that defendant did not hit her, but admitted at trial that that was false. Belen also revealed that at the time of the preliminary hearing, she and defendant were still seeing each other and that defendant told her she should “be careful what [she] was about to do because [she] had daughters.” Belen considered this a threat against her daughters and was so concerned she sent A.M. to live with her father.
It is highly probable the jury did not believe defendant and concluded that as the initial aggressor, defendant was not entitled to rely on self-defense or, alternatively, defendant simply did not act in self-defense. If there was error in the trial court not defining the term “mutual combat,” the error was harmless beyond a reasonable doubt since there was no “reasonable possibility” that the jury would have reached a different verdict absent the error. (People v. Ochoa (1998) 19 Cal.4th 353, 479; People v. Jones (2003) 29 Cal.4th 1229, 1264, fn. 11.)
6. Prosecutorial Misconduct
Defendant argues the prosecutor committed misconduct during closing argument by incorrectly telling the jury that defendant had the burden to prove self-defense.
After discussing the first two elements of the offense, the prosecutor stated: “The defendant did not act in self-defense is the final element. Now, let’s talk about what self-defense is and what it’s not. The defendant acted in lawful self-defense if—there are three things that he must meet: The defendant reasonably believed that he was in imminent danger of suffering bodily injury or imminent danger of being touched unlawfully, the defendant believed that the immediate use of force was necessary to defend against that danger, and the defendant used no more force than was reasonably necessary to defend against that danger—imminent danger. [¶]... [¶] The defendant must meet all three elements in order to claim self-defense.” (Italics added.)
Defense counsel objected, stating: “Misstates the law. It’s the prosecution’s burden to prove the lack of self-defense.” On appeal, defendant specifically objects to the italicized portion of the above quote. The trial court overruled defense counsel’s objection.
While the prosecutor’s statement that defendant needed to “meet” three elements in order to claim self-defense was inartfully stated, viewing the record as a whole, we conclude such statement does not constitute reversible error. The trial court clearly instructed the jury that the prosecution had the burden of proving each element of the offense, including the determination that defendant did not act in self-defense. When instructing the jury on self-defense (CALCRIM No. 3470), the court explained that “[t]he People have the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. If the People have not met this burden, you must find the defendant not guilty.” In addition, before discussing each element, the prosecution told the jury it had the burden of proving beyond a reasonable doubt each element of the offense.
Furthermore, the prosecutor did not state defendant had the burden of proving self-defense. Rather, the prosecutor argued that in order to prevail based on self-defense, defendant needed to show that all three elements of self-defense existed. This differed from arguing defendant had the burden of proving the third element of the offense, lack of self-defense.
Under such circumstances there was no reversible error based on prosecutorial misconduct. A prosecutor’s misconduct violates the federal Constitution when it is “‘“so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’” (People v. Gionis (1995) 9 Cal.4th 1196, 1214.) “‘Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’”’” (People v. Ochoa, supra, 19 Cal.4th at p. 427.) Finally, “when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
Here, the prosecutor’s brief reference to defendant needing to “meet” the three elements of self-defense in order to rely on the theory did not constitute an egregious pattern of misconduct and did not infect the trial with unfairness (People v. Gionis, supra, 9 Cal.4th at p. 1214), particularly since both the prosecutor and the trial court told the jury that the prosecution had the burden of proving that defendant did not act in self-defense when committing the charged offense. In addition, the trial court instructed the jury that it must follow the law stated in the jury instructions, and if arguments made by counsel conflicted with the jury instructions, the jury was required to follow the court’s instructions. (CALCRIM No. 200.) (People v. Sisneros (2009) 174 Cal.App.4th 142, 152-153.)
The prosecutor’s statements made during closing argument regarding self-defense do not constitute misconduct requiring reversal.
7. Disposition
The judgment is affirmed.
We concur: Richli, Acting P. J., Miller, J.
“A person who engages in mutual combat or who is the initial aggressor has a right to self-defense only if:
“1. He or she actually and in good faith tries to stop fighting;
“2. He or she indicates, by word or by conduct, to his or her opponent, in a way that a reasonable person would understand, that he or she wants to stop fighting and that he or she has stopped fighting;
“AND
“3. He or she gives his or her opponent a chance to stop fighting.
“If a person meets these requirements, he or she then has a right to self-defense if the opponent continues to fight.” (CALCRIM No. 3471.)