Filed 12/17/18 P. v. Walker CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Following a jury trial, defendant Tracey Renee Walker was convicted of assault with a deadly weapon (a knife) and was found to have personally inflicted great bodily injury upon the victim during the commission of the offense. Defendant was sentenced to six years in state prison. On appeal, she contends the mutual combat jury instruction given was not supported by the evidence, the trial court failed to address the jury’s request for clarification on the mutual combat instruction, the prosecutor engaged in prosecutorial misconduct by misrepresenting the evidence and misstating the law during closing arguments, and the accumulation of these errors amounted to ineffective assistance of counsel. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A night that ended in violence began peacefully when Lariesha Glover, Ladawn Blessett, Lawanna Davis, and defendant arrived together after 11:00 p.m. at Davis’s apartment, with liquor purchased en route. Two of Davis’s children, 22-year-old Tiana Buchanan and a nine-year-old daughter, were already at the apartment when the women arrived.

A pleasant evening of conversation, drinking, and listening to music ensued but the peace ended when defendant told Davis that she thought her daughter should be in bed because it was so late. This upset both the nine year old, who came inside from the front porch crying, and her mother, who followed her upstairs. Glover asked Davis what happened. Davis repeated defendant’s criticism and explained why she allowed her daughter to be up late, which led Glover to go outside and voice her opinion “that it’s not anybody’s business on what [Davis] does with her child.” Defendant started “chuckling.” Glover asked defendant why she was laughing. Glover then asked defendant “what is it your business to tell [Davis] how to raise her child?” Defendant responded: “I’m gonna say what I think is best. Three o’clock in the morning a nine year old should not be outside around grown people drinking.”

An exchange of insults and profanities followed. The verbal battle turned physical and what began as an exchange of insults became an exchange of punches between the two women. Accounts differ as to who threw the first punch, but witnesses agreed punches were thrown by both.

Defendant testified that Glover punched first and hit defendant in the face. Defendant then punched Glover back at which point she “thought [it] was going to be over.” Having come to the gathering from San Jose with plans to visit her nephew who was coming to pick her up, she had a suitcase in hand and was preparing to walk away but could not because Glover and Blessett “ran up on her.” Defendant recalled fighting both Glover and Blessett, with Blessett holding her hair. Glover hit her a lot. She fought back but couldn’t see what she was doing. During the altercation, defendant reached into her purse and grabbed a knife to defend herself. Upon pulling the knife from her purse, she immediately began swinging without giving a warning.

Glover told a different story. She testified that defendant punched first by attempting to swing her arm over Blessett who stood between them; then, although defendant failed to make contact with Glover, Glover swung back. She recalled feeling her punches make contact with defendant. Though defendant punched, Glover did not feel any of defendant’s punches landing on her. Glover did not see a knife during the fight, but felt a “surge” of pain in her face, then later discovered multiple lacerations on her body. Glover recalled the fight was between only herself and defendant, but remembered someone pulling them apart and grabbing defendant, at which point Glover stopped swinging. The fist fight was over quickly, “a minute and-a-half max.”

Davis did not see the fight start, but saw both women punching each other. Davis recalled the exchange of punches lasted five or six minutes with the fight ending when Glover stopped fighting and walked away.

Buchanan, who calls Glover her aunt and considers defendant her “God mom” saw the fight start but could not remember who threw the first punch. Buchanan recalled they were throwing punches for a couple of minutes and then defendant used what Buchannan thought was a knife to cut Glover during the fight. Buchanan never saw the knife blade, but saw a black handle. Buchanan recalled the fight ending when Blessett separated the two women, holding defendant by the hair, and Glover walked away. At the time Blessett pulled defendant’s hair, Glover was not punching defendant; the fight was over. Blessett was trying to keep defendant away from Glover.

Blessett’s recollection of events was “kind of foggy.” She remembered going outside and the first thing she saw was Glover and defendant arguing. She did nothing to stop the argument. She remembered they fought; they were hitting each other. She didn’t remember when it first turned physical. She could not remember who threw the first punch. She is the person who ended the fight; she “just pushed them apart.” Glover had been winning the fight. Blessett was not sure whether she saw a knife. Blessett threw no punches at defendant, nor was she ever involved in the physical altercation at all except to separate the parties.

Buchanan called 911 around 2:00 a.m. and officers arrived soon after. Defendant also called 911 saying she had been jumped by multiple women. When officers investigated the scene, a kitchen knife was found in defendant’s purse. Officers reported defendant had swelling on the right side of her forehead and bruising on her left shoulder and the left side of her chest. Officers put defendant in the patrol car around 2:30 a.m.

Glover suffered multiple lacerations on her body, including a laceration on her breast which punctured her lung, lacerations on her hands that required surgery, and lacerations on her head, chest, and arm.

Defendant was charged with assault with a deadly weapon, a knife, and with a great bodily injury enhancement, in violation of Penal Code sections 245, subdivision (a)(1), and 12022.7, subdivision (a). The jury found defendant guilty as charged. The court sentenced defendant to six years in state prison.

DISCUSSION

Defendant contends:

1) The trial court erred by giving CALCRIM No. 3471, a mutual combat instruction; the instruction was not supported by the evidence and improperly relieved the prosecution of its burden of proof while imposing a greater burden on defendant to prove self-defense.

2) The prosecutor committed misconduct during closing argument by misrepresenting the evidence and misstating the law on mutual combat.

3) The trial court failed to meaningfully address the jury’s confusion regarding the meaning of mutual combat, a confusion arising from the prosecutor’s misstatements during closing argument.

4) At to each of her contentions, defendant argues the asserted error is prejudicial. As to the second and third, defendant argues the issues are preserved for appeal notwithstanding defendant’s failure to object, and any such failure deprived defendant of the effective assistance of counsel. Defendant also argues that cumulatively these errors invoke Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705], thus that in assessing prejudice reversal is required unless they are determined to be harmless beyond a reasonable doubt.

I

Instructional Error—Mutual Combat

“The trial court is charged with instructing upon every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant's theory of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) “When an appellate court addresses a claim of jury misinstruction, it must assess the instructions as a whole, viewing the challenged instruction in context with other instructions, in order to determine if there was a reasonable likelihood the jury applied the challenged instruction in an impermissible manner.” (People v. Wilson (2008) 44 Cal.4th 758, 803.) We also consider counsel’s arguments “in assessing the probable impact of the instruction on the jury.” (People v. Young (2005) 34 Cal.4th 1149, 1202.)

The trial court gave CALCRIM No. 3470 on self-defense as follows:

“Self-defense is a defense to assault with a deadly weapon. The defendant is not guilty of the crime if she used force against the other person in lawful self-defense.

“The defendant acted in lawful self-defense if:

“1. The defendant reasonably believed that she was [in] imminent danger of suffering bodily injury.

“2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; and

“3. The defendant used no more force than was reasonably necessary to defend against that danger.

“Belief in future harm is not sufficient no matter how great or how likely the harm is believed to be.

“The defendant must have believed there was imminent danger of bodily injury to herself.

“Defendant's belief must have been and, she must have acted because of that belief.

“The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation.

“If the defendant used more force than was reasonable, the defendant did not act in lawful self-defense.

“When deciding whether the defendant's beliefs were reasonable, consider all of the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed.

“If the defendant's beliefs were reasonable, the danger does not need to have actually existed.

“The slightest touching can be unlawful if it is done in a rude or angry way.

“Making contact with another person, including through her clothing, is enough.

“The touching does not have to cause pain or injury of any kind.

“The defendant's belief that she was threatened may be reasonable even if she relied on information that was not true; however, the defendant must actually and reasonably have believed that the information was true.

“A defendant is not required to retreat. She is entitled to stand her ground and defend herself and if reasonably necessary to pursue an assailant until the danger of bodily injury has passed. This is so even if safety could have been achieved by retreating.

“The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. If the People have not met this burden, you must find the defendant not guilty of assault with a deadly weapon.” (CALCRIM No. 3470, as given.)

The court instructed on mutual combat in the language of CALCRIM No. 3471, as follows:

“A person who engages in mutual combat or who starts a fight has a right to self-defense only if:

“1. She actually and in good faith tried to stop fighting.

“2 She indicated by word or by conduct to her opponent in a way that a reasonable person would understand that she wanted to stop fighting and that she had stopped fighting; and

“3. She gave her opponent a chance to stop fighting.

“If the defendant meets these requirements, she then had a right to self-defense if the opponent continued to fight; however, if the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend herself with deadly force and was not required to try to stop fighting or communicate the desire to stop to the opponent or to give the opponent a chance to stop fighting.

“A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose.” (CALCRIM No. 3471, as given.)

Defendant complains that the instruction was not supported by evidence of an express or implied agreement to fight or continue fighting. In evaluating whether there was sufficient evidence, defendant instructs that we must review the evidence in the light most favorable to the defense version of the facts, a principle purportedly based on Masterson v. Ward (1958) 157 Cal.App.2d 142, 147, and Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 655, civil cases where it was claimed that the court erroneously refused an instruction, and People v. Mil (2012) 53 Cal.4th 400, 418, involving the standard that applies in determining prejudice where a court omits an element of an offense in an instruction.

The Evidence

All of the witnesses agree that the conflict between defendant and Glover started with a disagreement between them over defendant’s critical remarks about the presence of Davis’s child at the late-night gathering. The verbal argument quickly escalated. After defendant laughed at Glover’s disapproving comments, the two women fought for several minutes; the fighting ended either when Blessett pushed them apart or when Glover walked away, the victim of defendant’s knife.

But in defendant’s account of the evening’s events, an account that she insists we must accept, Glover “flew into a rage” when defendant laughed at her comments, a rage fueled both by defendant’s laughter and by Glover’s perception that defendant earlier had made seductive advances toward Glover’s partner. After Glover initiated the fight, there was a brief exchange of punches and then defendant walked away, but Glover, who outweighed defendant by 100 pounds, with the assistance of Blessett, reengaged and punched defendant repeatedly; defendant fought back in self-defense. Following these events, defendant herself called 911 and reported the attack.

Surely, “[i]t is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case.” (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) As expressed in People v. Ross (2007) 155 Cal.App.4th 1033, a case cited with approval by defendant, an instruction must be supported by substantial evidence. “Evidence is ‘[s]ubstantial’ for this purpose if it is ‘sufficient to “deserve consideration by the jury,” that is, evidence that a reasonable jury could find persuasive.’ ” (Id. at pp. 1049-1050.)

Measured by this standard, the jury was free to accept defendant’s version of events that Glover initiated the fight, there was a brief exchange of punches, and then defendant walked away only to be attacked anew by Glover and Blessett as she tried to leave Davis’s home. The jury was also free to reject it, in light of countervailing evidence. While the account of events by separate witnesses differed, none of the witnesses offered a version of events that aligned with defendant’s. There was ample evidence from which a reasonable jury could have found CALCRIM No. 3471 applied by its terms because, as Glover insists, defendant started the fight. The jury was no more compelled to accept defendant’s testimony that Glover threw the first punch than it was to accept Glover’s testimony that defendant hit first. Because a reasonable jury could find that defendant initiated the fight, the court did not err in giving CALCRIM No. 3471, whether or not there was an express or implied agreement to fight.

Moreover, while there was no evidence of an express agreement, there was evidence of an implied agreement. This was not a spontaneous outpouring of violence by one person against another. The fight was preceded by an escalating exchange of insults and a jury could conclude from their actions prior to the exchange of blows that the two parties ultimately decided to address the matter with their fists.

It is also impossible to understand how defendant was disadvantaged by the instruction. Under her version of the facts, regardless of who threw the first punch, she frantically sought to withdraw from the fray almost immediately; Glover was the aggressor when defendant pulled the knife. Consistent with the language of CALCRIM No. 3471, defendant claimed at trial that:

“1. She actually and in good faith tried to stop fighting;

“2. She indicated, by word or by conduct, to her opponent, in a way that a reasonable person would understand, that she wanted to stop fighting and that she had stopped fighting;

“and

“3. She gave her opponent a chance to stop fighting.” (CALCRIM No. 3471.)

Accordingly, “she then had a right to self-defense if the opponent continued to fight.” In light of her argument on the evidence, we cannot comprehend her argument on appeal that the instruction compromised her right to claim self-defense. If the jury believed her version of the events, all of the benefits of the defense of self-defense, as explained by the court, were available to her. There was no incongruity between the instruction and her argument at trial that at the time she inflicted the knife blows, she was at the mercy of an attacking Glover.

We conclude the mutual combat instruction was supported by evidence that defendant was the initial aggressor and by evidence of an implied agreement to fight. The instruction did not reduce the prosecution’s burden of proof nor did it violate defendant’s Sixth and Fourteenth Amendment rights.

Jury Question

“ ‘When the trial court responds to a question from a deliberating jury with a generally correct and pertinent statement of law, a party who believes the court’s response should be modified or clarified must make a contemporaneous request to that effect; failure to object to the trial court’s wording or to request clarification results in forfeiture of the claim on appeal.’ ” (People v. Boyce (2014) 59 Cal.4th 672, 699 (Boyce).) Defendant did not object. However, for purposes of analysis, we will assume without deciding this issue is properly preserved for appeal as defendant contends.

“ ‘The court is under a general obligation to “clear up any instructional confusion expressed by the jury,” but “[w]here . . . the original instructions are themselves full and complete, the court has discretion . . . to determine what additional explanations are sufficient to satisfy the jury’s question for information.” ’ ” (Boyce, supra, 59 Cal.4th at p. 699.) Here, the jury requested “clarification from judge regarding mutual combat. [¶] Are we required to consider a fight mutual combat if both individuals throw a punch? Or, can we consider a thrown punch to be defensive only and, thus, not an indication of a mutual combat situation?” To which the court responded, “Self-defense has been defined for you in Instructions 3470 and 3471. [¶] Mutual combat is defined in Instruction 3471.” As provided to the jurors, CALCRIM No. 3471 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.”

We perceive no abuse of discretion in the court’s decision to refer the jury to the instructions on mutual combat without embellishment. The language of the instruction clearly directs the jury to look to the intent of the parties and determine whether there was an implied agreement to fight each other. Further clarification was unnecessary. And in any event, as we have already noted, the instruction did not compromise the defense offered by defendant at trial.

II

Prosecutorial Misconduct

Generally, a defendant’s failure to object to misconduct by the prosecutor in a timely manner and request the trial judge to admonish the jury precludes the claim on appeal. (People v. Cunningham (2001) 25 Cal.4th 926, 1000.) “If an objection has not been made, ‘ “the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.” ’ ” (Id. at pp. 1000-1001.) For purposes of analysis, we will assume without deciding this issue is preserved for appeal.

“A prosecutor’s conduct violates a defendant’s federal constitutional rights when it comprises a pattern of conduct so egregious that it infects ‘the trial with unfairness as to make the resulting conviction a denial of due process.’ ” (People v. Bennett (2009) 45 Cal.4th 577, 594-595, citing Darden v. Wainwright (1986) 477 U.S. 168, 181 [91 L.Ed.2d 144].) Under state law, “ ‘[c]onduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct . . . if it involves “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” ’ ” (People v. Navarette (2003) 30 Cal.4th 458, 506, citing People v. Samayoa (1997) 15 Cal.4th 795, 841.) Defendant contends the prosecutor committed misconduct by mischaracterizing evidence and misstating the law. We are not convinced.

Mischaracterization of Evidence

“While counsel is accorded ‘great latitude at argument to urge whatever conclusions counsel believes can properly be drawn from the evidence [citation],’ counsel may not assume or state facts not in evidence [citation] or mischaracterize the evidence [citation].” (People v. Valdez (2004) 32 Cal.4th 73, 133-134.) Defendant insists the prosecutor mischaracterized the evidence during closing argument by stating to the jury that defendant “willingly engaged in a fist fight” and that using a knife was unreasonable. Not so.

The prosecutor neither assumed nor stated facts not in evidence or mischaracterized the evidence. Defendant was preparing to leave the apartment complex and was standing with her back to Glover prior to the incident, but turned to face Glover when the verbal confrontation started. While it is disputed who initiated the physical fight, defendant acknowledges she engaged in a fight with Glover. However, neither defendant, nor the record, provide evidence that defendant was forced to engage in the fist fight. Thus, the prosecutor’s statement is a permissible conclusion the prosecution may infer during closing.

Additionally, the prosecution’s argument that the use of a knife was unreasonable was again a permissible inference from the evidence. Defendant may assert, as she did at trial and does here, that Glover confronted defendant, was twice defendant’s size, and was in a rage as she repeatedly punched defendant, while defendant was “simply flailing with the knife,” and did not try to stab Glover. But this gloss on the evidence does not demonstrate the prosecutor mischaracterized evidence or stated facts beyond the record. The prosecutor’s insistence that defendant “willingly entered a fist fight” and unreasonably used a knife is not egregious prosecutorial misconduct affecting the fairness of the proceedings. Delivered during closing argument, these statements are neither deceptive nor reprehensible.

Misstatement of Law

Defendant argues the prosecutor misstated the law by not informing the jury of the entire mutual combat jury instruction. However, the jury was provided with the complete instruction and was instructed that opening statements and closing arguments are not evidence. We must presume “the jury treated the court’s instructions as statements of law, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.” (People v. Sanchez (1995) 12 Cal.4th 1, 70, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Thus, we presume that the jury relied on the complete jury instructions, not the arguments.

Defendant also argues the prosecutor’s statement “[y]ou cannot bring a knife to a fist fight” is a misstatement of law. Defense counsel argued in closing that this was not the law. Then, during the prosecution’s rebuttal, defendant contends the prosecutor “discounted counsel’s argument and presented a hypothetical situation which was in no way representative of the altercation,” which mislead and confused the jury, amounting to a misstatement of law. Defendant asserts: “[T]he prosecutor’s argument that the fight between appellant and Ms. Glover was mutual combat . . . was confusing to the jurors. But for the prosecutor’s having misstated the evidence, as well as the law, the jurors would not have been confused, and this Court could be confident that the verdict was based upon a valid theory of guilt.” While it is generally improper for the prosecutor to misstate the law (People v. Hill (1998) 17 Cal.4th 800, 829), we do not find any law was misstated. Thus, we find no prosecutorial misconduct.

III

Ineffective Assistance of Counsel

Defendant contends the cumulative effect of trial counsel’s failure to object to (1) the giving of the mutual combat instruction, (2) the trial court’s failure to clarify the jury’s questions regarding mutual combat, and (3) the prosecution’s misrepresenting evidence and misstating law amounting to prosecutorial misconduct, denied defendant a fair trial, the right to due process, and the right to effective assistance of counsel. We have concluded that the mutual combat instruction was properly given, the trial court did not err in declining to further clarify the mutual combat instruction in response to the jury’s questions, and the prosecution did not misrepresent or misstate the evidence. Accordingly, we reject defendant’s claim of ineffective assistance.

DISPOSITION

We affirm the judgment.

RAYE , P. J.

We concur:

ROBIE , J.

BUTZ , J.