Opinion Bank # O-254 NOTE: The text of the footnotes appears at the end of the document.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
THE PEOPLE, B 120694
Plaintiff and Respondent, (Super. Ct. No. BA153673)
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Peter Espinoza, Judge. Reversed in part with directions.
Tamara P. Holland, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Kyle S. Brodie, Christina Russotto and Renee Rich, Deputy Attorneys General, for Plaintiff and Respondent.
Rafael Reyes appeals from the judgment entered following a jury trial that resulted in his conviction of assault with a deadly weapon with the finding that he personally inflicted great bodily injury upon Hector, Melendez and possession of a knife. (Pen. Code, §§ 245, subd. (a)(1); 12022.7, subd. (a); 12020, subd. (a).) The court sentenced him to five years. We reverse in part and remand the matter for a new trial.
On the evening of July 19, 1997, as appellant attempted to pull into his driveway, he drove the front end of his van into the side of Josue Garcia’s van. Appellant did not stop. Instead, he attempted to go forward and created a dent in Garcia’s vehicle. An argument between Garcia and appellant ensued, which drew the attention of Garcia’s brother (Hector Melendez), Garcia’s cousin (Orlando Orlano), and Melendez’s friend, Alberto Lopez. The men were at a nearby marketplace.
Melendez confronted appellant and asked him what his problem was. Appellant replied in Spanish. His speech was slurred. Melendez followed appellant to the driveway and again asked what his problem was and why he hit Garcia’s van. Appellant reached into his van and took out a can of oil. He also took out a penknife from his pocket, Appellant sprayed oil in Melendez’s face who in turn, shoved appellant, Appellant then slashed at Melendez, hitting his wrist. Melendez cried out that he had been stabbed.
Appellant ran away, chased by Melendez, Lopez and Orlano, As appellant tried to scale a wall, Melendez and Lopez caught up with him. Melendez field onto appellant while Lopez punched him two or three times in the face. [Footnote 1] Appellant then stabbed Melendez in the neck, causing Melendez to back off. Appellant jumped the wall and continued to run, eventually finding his way to a restaurant. There, he was stopped and detained by a restaurant security guard. Moments later, the police arrived and arrested appellant.
Melendez underwent surgery for his neck wound. Hospital records indicated that Melendez had the odor of alcohol on his breath. Melendez, however, claimed that he drank only one beer that day some three hours before the incident.
The record also revealed that both Melendez and Garcia were six feet tall and weighed approximately 215 pounds, [Footnote 2] while Orlano was five feet eight inches tall and weighed approximately 180 pounds. Lopez testified that he was five feet nine inches tall and weighed 260 pounds.
In defense, appellant testified that he accidentally ran into Garcia’s van when his gear shift failed. [Footnote 3] He offered to pay for the damages several times; however, Garcia yelled at him in English. [Footnote 4] Suddenly, three men appeared. Melendez approached appellant while Garcia backed off. Appellant again offered to pay for the damages. Melendez, speaking in English, sounded angry.
Scared, appellant got a can of oil out of his van and threatened the men. They did not back off. He then ran toward his home, but Melendez followed. When he felt Melendez’s hand on his face, appellant changed directions. Still, Melendez pursued him. Appellant the sprayed Melendez’s face with oil. He took out his penknife and wielded it. Melendez, however, slugged him. Appellant waived his knife, but Melendez continued to hit appellant, cutting his hand in the process.
Appellant ran toward a wall as he was chased by all four men. When they caught up with him, they threw him to the ground. Appellant was certain they were going to beat him up. He managed to get free, though, and tried to scale the wall. However, Melendez grabbed his shirt, causing him to fall down. He accidentally stabbed Melendez when he fell. Appellant claimed that he never intended to hurt Melendez or any of the men and that he would not have used his knife if they had not come after him.
Appellant contends that the trial court erred in denying his requests that the jury be instructed (1) that the physical characteristics of the victim and his cohorts were relevant factors to his claim of self-defense and (2) on viewing the testimony of a witness who gave false testimony. Appellant further contends that (3) the prosecutor’s assertion that he was representing the People of the State of California denied him due process and (4) the cumulative effect of the errors requires reversal. Respondent requests that we impose a parole revocation fine, a state penalty assessment and county penalty assessment.
1. Modification of self-defense instruction
The trial court instructed the jury with CALJIC No. 5.30 on the use of self-defense in an assault case. The instruction read as follows: “It is lawful for a person who is being assaulted to defend himself … from attack, if as a reasonable person, he was grounds for believing and does believe that bodily injury is about to be inflicted upon him. In doing so, that person may use all force and means which he believes to be reasonable necessary and which appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent.”
Defense counsel requested that the instruction be modified to add “that the number of the assailants, their size and physical surroundings, should be and are relevant and reasonable factors far the jury to consider in finding whether the force used by Mr. Reyes was reasonable or not.” The court denied counsel’s request, suggesting instead that defense counsel argue the factors.
Appellant contends that the trial court improperly denied his instructional request pinpointing the theory of his defense. We disagree.
“A criminal defendant is entitled, on request, to a instruction ‘pinpointing’ the theory of his defense. [Citation.] … [H]owever, instructions that attempt to relate particular facts to a legal issue are generally objectionable as argumentative [citation], and the effect of certain facts on identified theories ‘is best left to the argument by counsel, cross-examination of the witnesses, and expert testimony where appropriate.’ [Citation.]” (People v. Wharton (1991) 53 Cal.3d 522, 570.)
“The jury was properly instructed on the theory of the defense, i.e., self-defense. Counsel’s requested modification merely pointed to specific evidence which in all likelihood would have been favorable to his client. (People v. Wharton, supra, at p. 57 1.) Accordingly, the trial court did not err in denying appellant’s request to modify CALJIC No, 5.30.
2. CALJIC No. 2.21.2
In addition, the court denied defense counsel’s request that the jury be given CALJIC No. 2.21.2 on a witness who is willfully false. CALJIC No. 2.21.2 reads as follows: “A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.” The court concluded that the factual discrepancies between the witnesses’ testimony were insufficient to warrant the instruction
Appellant contends that the court erred in refusing to instruct the jury with CALJIC No. 2.21.2. There appear to be at least three instances in which the instruction might have been utilized: (1) Melendez testified that he weighed 190 pounds and had drank only one beer several hours before the incident and did not feel its effect at the time. However, hospital records indicated that Melendez was approximately 25 pounds heavier and that hospital personnel detected alcohol on his breath. (2) Appellant’s testimony varies significantly from that of the prosecution witnesses. e.g., he offered to pay for damaging Garcia’s van, Melendez followed him as he tried to go inside his home, and all four men chased him as he tried to scale the wall. (3) Melendez and Lopez claimed that only Lopez had punched appellant shortly before he stabbed Melendez in the neck. However, Garcia testified that both men were hitting appellant at the time. Given that several of the witnesses may have testified falsely on material matters, we conclude that the trial court erred in refusing to give CALJIC No. 2.21.2 to the jury. (People v. Murillo (1996) 47 Cal.App.4th 1104, 1107.)
We evaluate the omission using the Watson (People v. Watson (1956) 46 Cal.2d 818, 836) standard. (People v. Murillo, supra, 47 Cal.App.4th at p. 1108.) Respondent points out that defense counsel highlighted several inconsistencies in the prosecution witnesses’ testimony and urged the jury to reject their testimony. However, the jury was given CALJIC No. 2.22.1, which states that “[d]iscrepancies in a witnesses testimony or between a witness’s testimony and that of other witnesses, if there were any, do not necessarily mean that a witness should be discredited. Failure of recollection is common. Innocent misrecollection is not uncommon. Two persons witnessing an incident or a transaction often will see or hear it differently. Whether a discrepancy pertains to an important matter or only to something trivial should be considered by you.” It could be that CAIJIC No. 2.22.1 diminished the impact, if any, of counsel’s argument.
We also recognize that the jury was instructed on factors to determine witness credibility and on weighing conflicting testimony. (CALJIC Nos. 2.20 and 2.22.) However, these instructions did not inform the jury that they were permitted to distrust or even reject the testimony of a witness who they found to have testified falsely.
While many of the facts were not in dispute. the evidence diverged widely on whether appellant was the aggressor, and if so, whether he properly retreated, and whether he used a reasonable amount of force to defend himself. Accordingly, had the jury believed that, Melendez had lied about his alcohol consumption, the instruction authorized them to distrust his testimony in other respects, including his portrayal of himself as a passive, reasonable man. Moreover, the number of men punching appellant just before he stabbed Melendez’s neck would certainly relate to the reasonableness of appellant , s behavior, In this close case, we conclude that the error was prejudicial as to count 1, the charge of assault with a deadly weapon. [Footnote 5] Accordingly, we reverse the matter as to count 1, the charge of assault with a deadly weapon.
3. Prosecutorial misconduct
Over appellant’s objection, the prosecutor told the jury that his client was “the People of the State of California,” and that he was an advocate for “them.”
Because we are reversing only appellant’s conviction for assault, we briefly address appellant’s contention that the prosecutor’s assertion was misconduct violating his constitutional rights to a fair trial. We conclude that the prosecutor’s brief reference regarding the identity of his client did not convey to the jury that they, as California citizens, were aligned with the agency that was prosecuting the defendant and that they therefore could not presume him to be innocent. Since the error, if any, was utterly harness, we reject this contention of misconduct. (Chapman v. California (1967) 386 U.S. 18, 23.) [Footnote 6]
The judgment is reversed as to count 1, the charge of assault with a deadly weapon, and the matter is remanded for a new trial.
NOT TO BE PUBLISHED.
SPENCER, P. J.
VOGEI, (Miriam A.), J.
According to Garcia, Melendez also punched appellant.
Melendez testified that he weighed approximately 190 pounds at the time. However, hospital records listed his weight as 215.
Appellant was impeached with a 1993 conviction for felony driving under the influence.
Trial was conducted with the assistance of a Spanish language interpreter.
With respect to this issue, appellant does not contest his conviction for possession of a knife.
Because we are reversing appellant’s conviction for assault and remanding the matter for a new trial, we need not address respondent’s request that we impose a parole revocation fine, a state penalty assessment and a county penalty assessment.