Filed 3/19/14 P. v. Aspinwall CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039158
                                                                    (Santa Clara County
          Plaintiff and Respondent,                                  Super. Ct. No. C1239867)

             v.

DEAN FRANCES ASPINWALL,

          Defendant and Appellant.



                                           STATEMENT OF THE CASE
          A jury convicted defendant Dean Francis Aspinwall of assault with a deadly
weapon (Pen. Code, § 245, subd. (a)(1)) and hit and run driving causing property damage
(Veh. Code, § 20002, subd. (a)). The trial court sentenced defendant to four years in
prison.
          Defendant now appeals from the judgment of conviction. He makes the following
arguments on appeal: 1) the trial court erred in admitting his prior convictions for
impeachment purposes, and, in the alternative, defense counsel was ineffective in failing
to adequately object to the admission of the prior convictions; 2) the trial court erred in
admitting evidence regarding a restraining order, and defense counsel rendered
ineffective assistance in failing to object to the evidence pursuant to Evidence Code
section 352; 3) the trial court erred in refusing to instruct the jury on necessity as a
defense to the hit and run charge; and 4) cumulative error warrants reversal.
       As set forth below, we find no merit in defendant’s claims. We therefore will
affirm the judgment of conviction.
                                STATEMENT OF THE FACTS
The Prosecution’s Evidence
       On the evening of August 24, 2012, defendant arrived at a parking lot located at
the corner of Stevens Creek Boulevard and Northlake Drive in San Jose. The parking lot
was frequented by homeless people who lived in vans and cars. Defendant, Dale
Goldsmith, and Lahna Yosten were among the people who frequented the parking lot.
       When defendant arrived at the parking lot, defendant told Goldsmith that
defendant’s brother had obtained a restraining order against defendant. Defendant
explained that his brother’s girlfriend had served him with the restraining order.
Goldsmith testified that defendant was agitated and “pretty pissed off” about the
restraining order. Defendant told Goldsmith that “it was time for payback.” Defendant
retrieved a baseball bat from his van, and he walked away from the parking lot. He
returned to the parking lot 45 minutes later, and he told Goldsmith that he had broken the
windows of his brother’s girlfriend’s car. Goldsmith noticed that defendant’s hand was
“cut up” and bleeding
       Goldsmith began to walk away from defendant, and defendant asked whether
Goldsmith had seen Joseph.1 Goldsmith testified that Joseph was connected to
defendant’s brother. Goldsmith explained that Joseph and defendant’s brother did work
for each other, and that Joseph worked on cars for defendant’s brother. After asking
Goldsmith about Joseph’s whereabouts, defendant drove his van across Stevens Creek
Boulevard and parked the van.


       1
        Joseph was referred to only by his first name at trial. None of the witnesses
provided Joseph’s last name.

                                             2
       Later that evening, defendant walked back to the parking lot. Joseph arrived at the
parking lot, and defendant asked Joseph, “What do you have going with my brother?”
Defendant threw a punch at Joseph, and the two men began to fight. Goldsmith pulled
defendant and Joseph apart. Joseph began to walk away, and defendant yelled racial slurs
at Joseph. Joseph’s half-brother, Tupac,2 punched defendant and said he did not like
defendant’s choice of language. Three or four other men joined in and punched and
kicked defendant. Goldsmith broke up the fighting.
       Defendant looked mad and determined, and he walked across Stevens Creek
Boulevard to his van. He took a bat from his van, and he walked back toward the parking
lot. Defendant hefted the bat over his shoulder and moved it around. Individuals in the
parking lot grabbed tire irons, iron bars, and fireplace pokers. Four or five of the
individuals approached defendant. Defendant backed up and went back to his van.
       Defendant sat in the van’s driver’s seat for a few minutes. He then “gunned” the
engine and drove across Steven’s Creek Boulevard toward the parking lot, driving over
the center median. Tupac was standing on the sidewalk adjacent to the parking lot, and
defendant drove up onto the sidewalk. Defendant drove on the sidewalk at a speed of 25
to 30 miles per hour. He made a right-hand turn and accelerated into the parking lot.
       Yosten’s car was parked in the parking lot, and Yosten was standing next to her
car. Defendant turned his van towards the area where Yosten’s car was parked. He
pointed his van in the direction of Yosten and her car, and he “headed straight towards”
Yosten at a speed of 35 to 40 miles per hour. Defendant’s van “swerve[d] at the last
second,” and it struck Yosten’s car. The impact threw Yosten to the ground 15 feet away
from her car. She was unconscious, and her humerus was fractured.




       2
           Like Joseph, none of the witnesses at trial provided Tupac’s last name.
                                              3
       After defendant’s van struck Yosten’s car, defendant drove the van onto Stevens
Creek Boulevard. He accelerated, and he drove up to Tupac’s parked van. While
accelerating, defendant made a right-hand turn “directly into” the front of Tupac’s van.
Defendant’s van “knocked” the front end of Tupac’s van onto the sidewalk. Defendant
accelerated again, and his van “ran into” a parked dump truck. The dump trucked moved
four to five feet, hitting the car parked in front of it. Defendant backed his van into the
parking lot, and the van got stuck underneath a tree. He tried to get out of the van, and
six or seven people ran toward him. Defendant was able to open one of the van’s doors,
and he ran away.
The Defense Evidence
       Defendant was the only defense witness. He denied breaking the windows of his
brother’s girlfriend’s car, he denied yelling racial slurs, he denied hitting Yosten’s van,
and he denied hitting the dump truck.
       Defendant admitted throwing a punch at Joseph. He testified that he was
thereafter attacked by Tupac and other individuals in the parking lot, but he was able to
break free and return to his van. After defendant escaped from the attack, he approached
the parking lot with a bat because he wanted to “confront them all.” He was “upset”
when people in the parking lot grabbed weapons, and he again returned to his van. He
testified that he drove across the center median because he “wanted them to see [his] state
of mind.” He admitted driving on the sidewalk, but only at a speed of three to five miles
per hour. After driving on the sidewalk, he drove through the parking lot without hitting
Yosten’s car. He explained that when he drove through the parking lot “nobody . . . was
around,” and everyone who had been in the parking lot had “dispersed.”
       After driving through the parking lot, defendant turned onto Stevens Creek
Boulevard and revved his engine because he wanted to let everyone know that he was
still there. He was “mad” that the men who had attacked him had left the area. He

                                              4
accelerated to a speed of 35 to 40 miles per hour, and he made a right-hand turn. He lost
control of his van and hit Tupac’s van. Defendant stepped out of his van and
“immediately started to flee the scene” because he was afraid that “[s]ix black
gentlemen” would attack him. He also fled because he believed police would come to the
scene.
         Defendant testified that he spoke with police after the incident, and that the
version of events he provided to the police differed from his trial testimony. When
defendant spoke to the police, he denied driving in the fashion that he had described at
trial. He told the police that someone must have taken his van.
         Defendant testified that he had suffered prior criminal convictions. He admitted a
1992 conviction for misdemeanor “spousal violence,” a 1992 conviction for felony
“spousal battery,” and a 2003 conviction for misdemeanor “brandishing a weapon.”
                                         DISCUSSION
I. Impeachment with Prior Convictions
         Defendant contends that the judgment must be reversed because the trial court
erroneously admitted his prior convictions for impeachment purposes. Specifically, he
argues, “The trial court erred in allowing in these prior convictions since, as a matter of
law, none of these constitute crimes involving moral turpitude.” In the alternative, he
asserts that his trial counsel rendered ineffective assistance in failing to object to the
admission of the prior convictions on the ground of lack of moral turpitude. We find no
merit in defendant’s claims.




         A. Background
         The prosecutor moved to impeach defendant with his misdemeanor domestic
violence conviction (Pen. Code, § 273.5, subd. (a)), his felony domestic violence

                                               5
conviction (Pen. Code, § 273.5, subd. (a)), and his misdemeanor brandishing conviction
(Pen. Code, §417, subd. (a)(1)). Defense counsel conceded that all of the prior
convictions involved “moral turpitude under the law.” Defense counsel objected to the
admission of the prior convictions, however, on the ground that they were remote in time
and impermissibly tended to show a propensity for violence. The trial court ruled that the
convictions were admissible to impeach defendant’s testimony.
       B. Defendant Has Not Established Trial Court Error
       “A general objection to the admission or exclusion of evidence, or one based on a
different ground from that advanced at trial, does not preserve the claim for appeal.”
(People v. Marks (2003) 31 Cal.4th 197, 228 (Marks).) Thus, because defense counsel
never argued that the prior convictions lacked moral turpitude, defendant’s claim that the
trial court erred in failing to exclude the convictions due to their lack of moral turpitude is
not cognizable on appeal. Indeed, given that defense counsel conceded that the
convictions involved moral turpitude, we cannot now conclude that the trial court erred in
failing to deem the convictions lacking in moral turpitude. (See People v. Partida (2005)
37 Cal.4th 428, 435 [a defendant “cannot argue the court erred in failing to conduct an
analysis it was not asked to conduct”].) Defendant therefore has not established that the
trial court erred in failing to exclude the prior convictions due to the absence of moral
turpitude. (See Marks, supra, 31 Cal.4th at pp. 228-229 [where defense counsel objected
to the admission of a prior conviction for impeachment purposes, but did not assert that
the conviction lacked moral turpitude, the defendant’s claim that the prior conviction was
inadmissible due to lack of moral turpitude was not cognizable on appeal].)


       C. Defense Counsel Did Not Render Ineffective Assistance
       The defendant bears the burden of proving ineffective assistance of counsel.
(People v. Carter (2003) 30 Cal.4th 1166, 1211 (Carter).) To obtain reversal due to

                                              6
ineffective assistance, a defendant must first show “that defense counsel’s performance
fell below an objective standard of reasonableness, i.e., that counsel’s performance did
not meet the standard to be expected of a reasonably competent attorney.” (People v.
Cunningham (2001) 25 Cal.4th 926, 1003 (Cunningham); Strickland v. Washington
(1984) 466 U.S. 668, 688 (Strickland).) Second, the defendant must show that there is “a
reasonable probability that defendant would have obtained a more favorable result absent
counsel’s shortcomings.” (Cunningham, supra, 25 Cal.4th at p. 1003.)
       “A reviewing court will indulge in a presumption that counsel’s performance fell
within the wide range of professional competence and that counsel’s actions and
inactions can be explained as a matter of sound trial strategy.” (Carter, supra, 30 Cal.4th
1166, 1211; see also People v. Witcraft (2011) 201 Cal.App.4th 659, 664.) Where the
record on appeal “does not show the reason for counsel’s challenged actions or
omissions, the conviction must be affirmed unless there could be no satisfactory
explanation.” (People v. Anderson (2001) 25 Cal.4th 543, 569.)
       “The object of an ineffectiveness claim is not to grade counsel’s performance. If it
is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.”
(Strickland, supra, 466 U.S. at p. 697.)
       Here, defense counsel was not deficient in failing to argue that defendant’s
domestic violence convictions were inadmissible due to their lack of moral turpitude.
There was a satisfactory explanation for his failure to make such an objection. Domestic
violence convictions pursuant to Penal Code section 273.5 necessarily involve moral
turpitude and are thus admissible for impeachment purposes. (People v.
Rodriguez (1992) 5 Cal.App.4th 1398, 1402; see also Donley v. Davi (2009) 180
Cal.App.4th 447, 461 [a misdemeanor violation of Penal Code section 273.5 “is a crime
of moral turpitude as a matter of law”]; 3 Witkin, Cal. Evidence (5th ed. 2012)

                                             7
Presentation at Trial § 318, p. 447 [a Penal Code section 273.5 conviction involves moral
turpitude].) Defense counsel therefore was not deficient in failing to seek exclusion of
defendant’s Penal Code section 273.5 domestic violence convictions on the ground that
they lacked moral turpitude.3 (See People v. Bradley (2012) 208 Cal.App.4th 64, 90
[“Failure to raise a meritless objection is not ineffective assistance of counsel.”].)
       Nor did defense counsel render ineffective assistance in failing to argue that
defendant’s brandishing conviction was inadmissible due to a lack of moral turpitude.
Defendant has failed to show that he was prejudiced by the admission of that conviction.
Defendant’s credibility was significantly damaged, notwithstanding the admission of his
brandishing conviction. Defendant admitted that the version of events he provided to
police was completely different from the version of events he described at trial. There
were many inconsistencies in defendant’s testimony,4 and the trial court found that
defendant’s testimony was “not . . . credible in almost every respect.” Additionally, as


       3
          In support of his claim that defense counsel should have made a moral turpitude
objection to the domestic violence convictions, defendant cites a Ninth Circuit case,
Morales-Garcia v. Holder (9th Cir. 2009) 567 F.3d 1058 (Morales-Garcia). Morales-
Garcia held that a Penal Code section 273.5 conviction is not a crime of moral turpitude
for federal immigration purposes. (Id. at p. 1060.) Defendant’s reliance on Morales-
Garcia is unavailing. The decisions of intermediate federal appellate courts “are not
binding on state courts.” (In re Roderick (2007) 154 Cal.App.4th 242, 307.) Thus,
Morales-Garcia in no way requires us to conclude that defense counsel rendered
ineffective assistance in failing to make a moral turpitude objection to the admission of
defendant’s domestic violence convictions.
       4
          We note some of the inconsistencies in defendant’s testimony. Defendant
repeatedly testified that no one was at the scene when he struck Tupac’s van, yet he
explained that he fled after striking the van because he feared individuals at the scene
would attack him. He repeatedly testified that he was “calm” during the incident, but he
also described his mood as “agitated” and “mad.” He insisted that he drove safely during
the entire incident, but he admitted that it was not safe to drive on the sidewalk. He
denied striking Yosten’s car, but he was unable to explain the cause of the extensive
damage to her car.
                                              8
noted above, defendant’s domestic violence convictions involved moral turpitude and
were admissible to impeach the credibility of his testimony. Thus, even if the
brandishing conviction had not been admitted, defendant’s credibility still would have
been extremely impaired. Defendant therefore has failed to show the requisite reasonable
probability of a more favorable result absent counsel’s shortcomings. We therefore must
conclude that counsel did not render ineffective assistance in failing to make a moral
turpitude objection to the brandishing conviction. (See generally Cunningham, supra, 25
Cal.4th at p. 1003 [ineffective assistance of counsel is established only where there is “a
reasonable probability that defendant would have obtained a more favorable result absent
counsel’s shortcomings”].)
II. Evidence Regarding the Restraining Order
       Defendant contends that the judgment must be reversed because the trial court
erroneously admitted evidence that his brother had obtained a restraining order against
him. Specifically, he asserts that the trial court erred in refusing to exclude the evidence
as irrelevant. Defendant additionally contends that his trial counsel rendered ineffective
assistance in failing to seek exclusion of the evidence pursuant to Evidence Code
section 352. We conclude that the trial court did not err, and that trial counsel did not
render ineffective assistance.
       A. Background
       Before trial, defense counsel moved to exclude evidence that defendant had been
served with a restraining order that prevented him from contacting his brother. Defense
counsel argued the restraining order was irrelevant because there was no “direct
nexus . . . between the restraining order and this case.”
       After reviewing the preliminary hearing transcript, the trial court ruled that the
restraining order evidence was relevant and admissible. The court explained: “Well, it
seems like in reviewing the prelim testimony of Mr. Goldsmith, that the defendant—the

                                              9
first thing that happened was that the defendant told Mr. Goldsmith something about the
restraining order and that he wanted to talk to Joseph . . . . [T]he defendant apparently
saw [Joseph], came up to him, and asked Joseph what he and his brother had going on
and started swinging on him. And from then on it just continues.” The court noted that
defendant’s act of punching Joseph instigated a continuous, widespread altercation that
culminated with defendant driving into Yosten’s car and other parked vehicles. The court
concluded, “So it seems like all of that was one continuous action. And I don’t think it
would make any sense not to allow the jury to hear what precipitated . . . the charged
conduct because otherwise it’s just not going to make any sense.”
       B. The Trial Court Did Not Abuse its Discretion
       “As a general rule, all relevant evidence is admissible.” (People v. Mendoza
(1998) 18 Cal.4th 1114, 1136.) “Evidence is relevant if it has any tendency in reason to
prove or disprove a material issue.” (Ibid.) “The test of relevance is whether the
evidence tends ‘ “logically, naturally, and by reasonable inference” to establish material
facts such as identity, intent, or motive.’ ” (People v. Scheid (1997) 16 Cal.4th 1, 13.)
       “The trial court is vested with wide discretion in determining the relevance of
evidence.” (People v. Babbitt (1988) 45 Cal.3d 660, 681.) “The [trial] court, however,
has no discretion to admit irrelevant evidence.” (Ibid.) An appellate court reviews a trial
court’s ruling on the relevance of evidence for abuse of discretion. (Id. at pp. 682-683.)
       Here, contrary to defendant’s assertion, the trial court did not abuse its discretion
in refusing to exclude the restraining order evidence as irrelevant. The restraining order
was relevant because it constituted the motive for defendant’s initial confrontation with
Joseph: defendant confronted Joseph, who associated with defendant’s brother, because
defendant was angry about the restraining order. Defendant’s act of confronting Joseph
instigated an altercation between defendant and the people in the parking lot, and that
widespread altercation concluded with defendant driving his van into Yosten’s car and

                                             10
the other parked vehicles. The evidence regarding the restraining order was thus relevant
to show why defendant initiated a course of conduct that culminated in his commission of
the charged crimes. As the trial court noted, the charged conduct was “not going to make
any sense” unless the jury heard evidence regarding defendant’s motive for engaging in
the initial confrontation with Joseph. We therefore conclude that the trial court did not
abuse its discretion in refusing to exclude the restraining order evidence as irrelevant.
(See generally People v. Bivert (2011) 52 Cal.4th 96, 116-117 [evidence is relevant and
thus admissible if it tends to establish motive].)
       C. Defense Counsel Did Not Render Ineffective Assistance
       Defendant contends that defense counsel rendered ineffective assistance in failing
to seek exclusion of the restraining order evidence pursuant to Evidence Code
section 352.5 Defendant additionally asserts that defense counsel rendered ineffective
assistance in failing to make an Evidence Code section 352 objection to the evidence that
defendant broke his brother’s girlfriend’s car windows.
       Defendant’s ineffective assistance claim fails because he has not shown that he
was prejudiced by defense counsel’s failure to make an Evidence Code section 352
objection. (See Strickland, supra, 466 U.S. at p. 697 [an ineffective assistance claim fails
if the defendant does not establish prejudice].) Defendant theorizes that the evidence
regarding the restraining order and the broken car windows destroyed the credibility of
his testimony, and that he would have achieved a more favorable verdict if defense
counsel had made a successful Evidence Code section 352 objection. Defendant’s theory
is unconvincing. Defendant’s credibility was significantly damaged, regardless of the
evidence concerning the restraining order and the broken windows. As discussed in part

       5
        Evidence Code section 352 states: “The 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.”
                                              11
I.C., ante, defendant admitted that the version of events he provided to police was
completely different from the version of events he described at trial, there were many
inconsistencies in defendant’s testimony, the trial court found that defendant’s testimony
was not credible, and defendant’s domestic violence convictions impeached his
testimony. Thus, even if defense counsel had succeeded in excluding the evidence
regarding the restraining order and the broken windows, the jury would not have been apt
to credit defendant’s testimony. Defendant therefore has failed to establish the requisite
reasonable probability of a more favorable result absent counsel’s shortcomings, and we
must conclude that counsel did not render ineffective assistance in failing to make an
Evidence Code section 352 objection. (See generally Cunningham, supra, 25 Cal.4th at
p. 1003 [to establish ineffective assistance, the defendant must show that there is “a
reasonable probability that defendant would have obtained a more favorable result absent
counsel’s shortcomings”].)
III. Necessity Instruction
       Defendant contends that his hit and run conviction must be reversed because the
trial court refused to instruct pursuant to CALCRIM No. 3403, which articulates the
defense of necessity. Specifically, he asserts that the trial court was required to give
CALCRIM No. 3403 as a defense to the hit and run charge because there was substantial
evidence that he ran away from the scene “out of necessity in fear that the group in the
parking lot was intending on attacking him.” We conclude that there was not substantial
evidence to support a necessity instruction, and that the trial court therefore did not err in
refusing to instruct pursuant to CALCRIM No. 3403.
       A. Background
       Defense counsel requested that the trial court instruct pursuant to CALCRIM
No. 3403 as a defense to the hit and run charge. The court refused to give CALCRIM
No. 3403. The court explained: “And so there are six elements that the defense has to

                                              12
prove, and one of them is that the defendant did not substantially contribute to the
emergency. It seemed to me, based upon the evidence that I heard, that that wasn’t going
to be able to be shown and the Court has to instruct on the defense when there is
substantial evidence supporting the defense. And, frankly, I just don’t think there was
any substantial evidence supporting that defense, and that’s why I didn’t give it.”
       B. The Trial Court Did Not Err
       “A defendant is entitled to instruction on request on any defense for which
substantial evidence exists.” (People v. Miceli (2002) 104 Cal.App.4th 256, 267.)
“However, the trial court need give a requested instruction concerning a defense only if
there is substantial evidence to support the defense.” (Ibid.) “On review, we determine
independently whether substantial evidence to support a defense existed.” (People v.
Shelmire (2005) 130 Cal.App.4th 1044, 1054.)
       “ ‘The necessity defense is very limited and depends on the lack of a legal
alternative to committing the crime. It excuses criminal conduct if it is justified by a
need to avoid an imminent peril and there is no time to resort to the legal authorities or
such resort would be futile.’ [Citation.]” (People v. Verlinde (2002) 100 Cal.App.4th
1146, 1164.) The defense of necessity cannot be invoked “when it is the culpable
conduct of the actor that creates or contributes to the atmosphere of necessity.” (Id. at
p. 1165.)
       “To justify an instruction on the defense of necessity, there must be evidence
sufficient to establish that defendant violated the law (1) to prevent a significant evil,
(2) with no adequate alternative, (3) without creating a greater danger than the one
avoided, (4) with a good faith belief in the necessity, (5) with such belief being
objectively reasonable, and (6) under circumstances in which he did not substantially
contribute to the emergency.” (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035,
italics added.)

                                              13
       CALCRIM No. 3403 articulates the defense of necessity. CALCRIM No. 3403
states, in pertinent part: “The defendant is not guilty of ______<insert crime[s]> if
(he/she) acted because of legal necessity. [¶] In order to establish this defense, the
defendant must prove that: [¶] 1. (He/She) acted in an emergency to prevent a significant
bodily harm or evil to (himself/herself/ [or] someone else); [¶] 2. (He/She) had no
adequate legal alternative; [¶] 3. The defendant’s acts did not create a greater danger than
the one avoided; [¶] 4. When the defendant acted, (he/she) actually believed that the act
was necessary to prevent the threatened harm or evil; [¶] 5. A reasonable person would
also have believed that the act was necessary under the circumstances; [¶] AND [¶] 6.
The defendant did not substantially contribute to the emergency.” (CALCRIM No. 3403,
italics added.)
       Here, defendant theorizes that instruction pursuant to CALCRIM No. 3403 was
required because the evidence showed that he ran from the scene after hitting the parked
vehicles due to fear that he would be imminently attacked by angry individuals in the
parking lot.6 We are not persuaded by defendant’s theory and conclude that there was not
substantial evidence to support CALCRIM No. 3403.
       Although defendant testified that he feared imminent attack after he hit Tupac’s
van, the evidence failed to show that defendant did not substantially contribute to that
emergency. Rather, both the prosecution’s evidence and the defense evidence established
that defendant substantially contributed to the emergency situation that prompted him to
flee the scene. The prosecution’s evidence showed that defendant attacked Joseph,

       6
         Defendant was convicted of hit and run driving in violation of Vehicle Code
section 20002, subdivision (a). Vehicle Code section 20002, subdivision (a) states, in
pertinent part: “The driver of any vehicle involved in an accident resulting only in
damage to any property, including vehicles, shall immediately stop the vehicle at the
nearest location that will not impede traffic or otherwise jeopardize the safety of other
motorists.” Defendant contends that an instruction on the defense of necessity would
have excused his failure to stop after the collision with the parked vehicles.
                                             14
approached the individuals in the parking lot while wielding a bat, quickly drove his van
on the sidewalk on which Tupac was standing, pointed his van at Yosten and accelerated
“straight towards” her, and drove his van “directly into” Tupac’s parked van. The
defense evidence showed that defendant threw the first punch at Joseph, approached the
individuals in the parking lot with a bat in order to “confront them all,” drove his van
across the center median to show the individuals in the parking lot his “state of mind,”
revved his engine to show everyone that he was “mad,” and recklessly made a turn at a
high rate of speed before losing control of his van and hitting Tupac’s van. Thus, under
both the prosecution’s evidence and the defense evidence, defendant engaged in
confrontational conduct likely to incite anger and a forcible response from the individuals
in the parking lot. The evidence therefore established that defendant created the
emergency situation that prompted him to flee. We accordingly conclude that there was
no substantial evidence that defendant did not substantially contribute to the emergency,
and that the trial court did not err in refusing to give CALCRIM No. 3403. (See
generally Verlinde, supra, 100 Cal.App.4th at p. 1165 [a necessity instruction was not
required where the evidence established that the defendant created the emergency].)




IV. Cumulative Error
       Defendant contends that cumulative error warrants reversal. In assessing a claim
of cumulative error, the critical question is “whether defendant received due process and
a fair trial.” (People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.) As discussed
above, defendant has failed to show any errors in the trial court proceedings. As there
were no errors that could have impacted his due process and fair trial rights, there was no
cumulative error in this case.



                                             15
                                 DISPOSITION


     The judgment is affirmed.




                                   ______________________________________
                                              RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           MÁRQUEZ, J.




                                     16
