Filed 2/3/15 P. v. Thompson CA4/1
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                     COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065083

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD245357)

STACEY LYNN THOMPSON,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Howard H.

Shore, Judge. Affirmed.



         Steven A. Brody, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, William M. Wood and Brendon

W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury convicted defendant and appellant Stacey Lynn Thompson of assault with a

deadly weapon (Pen. Code,1 § 245, subd. (a)(1)) and found true she inflicted bodily

injury in the commission of that offense (§ 12022.7, subd. (a)) and did so under

circumstances involving domestic violence (§ 12022.7, subd. (e)). The court found the

instant case to be "unusual," suspended Thompson's sentence and granted three years

formal probation, with credit for time served.

       On appeal, Thompson contends the court abused its discretion and thus erred when

it refused to allow the defense to cross-examine victim Jason Fish regarding the

maximum punishment he might face if it was found he violated the terms of his

probation. Thompson also contends defense counsel was ineffective for failing to object

to testimony by law enforcement regarding statements made by a witness on the night of

the attack, after the witness ambiguously testified he could not remember making such

statements. Finally, she contends the court erred when it instructed the jury pursuant to

CALCRIM No. 3471, which pertains to an initial aggressor and his or her right to self-

defense.

       As we explain, we reject these contentions and affirm the judgment of conviction.




1      Unless otherwise noted, all statutory references are to the Penal Code.
                                             2
                  FACTUAL AND PROCEDURAL BACKGROUND2

       A. Prosecution Evidence

       In the evening in late December 2012, Fish, Thompson and others went inside a

public bathroom on Mission Bay Drive to escape the rain. Fish and Thompson had

known each other for about a month and had met in the park area of Mission Bay, where

they were living. In addition to hanging out together, Fish and Thompson had sexual

intercourse twice in Thompson's car. However, Fish told Thompson he was not

interested in getting into a relationship because he had just gotten out of one.

       Before entering the bathroom on the night of the attack, the group drank in the

park area of Mission Bay. Once inside the bathroom, they all continued to drink. Fish

saw Thompson was drinking but was unsure if she was intoxicated. Fish said he became

"pretty drunk" that night. Fish and Thompson had argued the day before, which had led

to Thompson punching Fish in the head. While in the bathroom, Fish spoke to his former

girlfriend on his cell phone. During the conversation, Fish told his former girlfriend he

still loved her. Thompson, who overheard the conversation, immediately became angry

and snatched Fish's phone.

       Fish testified that after he got his phone back from Thompson, he started to walk

out of the bathroom. Thompson followed and, from behind, stabbed Fish with a knife in

the back of the neck and in the shoulder blade. She then used the knife to slice Fish from



2      We view that evidence in the light most favorable to the judgment. (See People v.
Osband (1996) 13 Cal.4th 622, 690.) Certain portions of the factual and procedural
history related to the contentions raised by Thompson are discussed post.
                                              3
his shoulder to his elbow. When Fish attempted to grab the knife from Thompson, she

pulled it away, slicing Fish from his knuckle to the bottom of his palm. Thompson also

stabbed Fish in the right shoulder.

       In shock after returning to the bathroom, Fish fell to the floor. When he

awakened, he was surrounded by paramedics and police officers. Under questioning,

Fish stated his wounds were self-inflicted. Fish testified he told the police the wounds

were self-inflicted because he initially did not realize how badly he was hurt and because

he did not want Thompson to get in trouble. Fish needed about 70 staples to close his

wounds. After Fish got out of the hospital, he told the police that Thompson was his

attacker.

       Witness Donald Page testified he was drinking heavily in the bathroom with Fish

and Thompson on the night of the attack. Page knew Fish and Thompson from the

Mission Bay park area. At some point, Page fell asleep. Later in the evening, Page

awakened when another friend entered the bathroom. Page saw blood everywhere and

saw Thompson sitting on the floor. Fish was not moving.

       Page testified he could not recall giving a statement that night to "his friend"

Sergeant Davis. Page said he was unconscious when the attack occurred. As discussed

post, Officer Richard Garcia testified he was standing next to Sergeant Davis when, in

response to questioning immediately after the attack, Page said, "'She [i.e., Thompson]

stabbed him in the back of the neck, then sliced him.'" Page testified he "could have"

made this statement. However, Page denied making the statement to Sergeant Davis that

the reason for the attack was because Fish "'fucked that bitch over there.'"

                                              4
       Page testified the day before the stabbing he heard Fish and Thompson arguing

and saw Thompson chasing Fish around a parking lot, "slapping him [i.e., Fish] around

pretty good." According to Page, Fish was running from Thompson and was attempting

to avoid the conflict.

       Witness Garold Crosbie testified that about 1:00 a.m. on the night of the attack, he

went into the bathroom to use a power outlet. When he entered, Crosbie saw blood

everywhere and saw his friend Thompson sitting against the wall. Thompson was

shaking and appeared to be shock. According to Crosbie, Page was awake and was

sitting right next to Thompson. Crosbie asked if anyone needed an ambulance. At that

point, Crosbie saw his friend Fish, who was under a blanket, sit up and heard him say,

"'Maybe you can call me one.'" When Crosbie asked what happened, Thompson said, "'I

couldn't let him fuck me up. It isn't right.'" Crosbie saw Thompson's hand covered in

blood. Crosbie left and called 911.

       San Diego Police Officer Richard Garcia testified he was the first officer to

respond to the attack. When he entered the bathroom, he saw a woman he later identified

as Thompson calmly sitting on the floor. Officer Garcia saw blood everywhere,

including on the floor and walls. Officer Garcia found Fish in a pool of blood and saw a

wound on his back, near his neck. Fish told Officer Garcia he had stabbed himself.

       Officer Garcia noticed that blood was dripping from Thompson's left hand, which

was wrapped in a piece of clothing. Officer Garcia did not see any bruising, swelling or

any other injuries to Thompson other than to her hand. He asked, "Okay, where's the

knife?" As Officer Garcia was looking back and forth at Fish and Thompson waiting for

                                             5
a response to his question, Officer Garcia heard a "metal clanking sound on the ground

just to [his] right." Officer Garcia next saw a black folding knife resting on the floor a

few feet in front of Thompson.3 According to Officer Garcia, there was another person

in the bathroom that night that Officer Garcia later identified as Page. In response to

Officer Garcia's question as to what had happened, Thompson responded, '"We were

arguing.'"

       When Sergeant Kelly Davis arrived at the scene, he asked Page, "What happened

here?" Officer Garcia was standing next to Sergeant Davis. Although intoxicated, Page

replied, "'She stabbed him in the back of the neck and then sliced him.'" In response to

Sergeant Davis's question why Thompson stabbed Fish, Page said, "'Because he fucked

the other bitch over there.'" Officer Garcia attempted to interview Page at a picnic table

near the bathroom, but Page refused to answer any questions and became abusive and

hostile.

       Officer Frances Minton testified that when he arrived at the scene, he found

Thompson on the bathroom floor sitting in a pool of blood. Thompson was holding her

left hand, which was bleeding. Officer Minton asked Thompson what had happened.

Officer Minton testified Thompson several times said she did not know.

       San Diego Police Detective Bertha Camarena testified she contacted Thompson at

a hospital emergency room shortly after the stabbing incident. Thompson had significant

cuts to her hand but no other sign of injuries.


3     The record includes a stipulation that a lab analyst subsequently analyzed the knife
found by Officer Garcia but was unable to identify any fingerprints.
                                              6
         B. Defense Evidence

         Thompson testified in her own defense. She met Fish in the park in September

2012, a few months before the stabbing. Thompson at the time was living in her car near

the beach. At some point their relationship turned sexual.

         A few days before the stabbing, Thompson was in a food line when Fish rode past

her on his bicycle and for no reason kicked her. This was not the first time Fish had

kicked Thompson. Thompson in response told Fish to stop kicking her because it was

both painful and embarrassing.

         That evening, Fish told Thompson he was sorry for kicking her earlier. Fish

smelled of alcohol. As they talked, Fish became disrespectful, which upset Thompson.

Thompson grabbed Fish's phone after he started checking for messages. The argument

escalated. Thompson tried to put Fish's phone in his backpack. Fish in response ran at

Thompson, pushed her to the ground and pinned her, while demanding the return of his

phone.

         On the day of the stabbing, Thompson and Fish were drinking together in the park

area with some of Fish's other friends. In the evening, Fish became intoxicated and

started to make jokes about Thompson. Because it was raining, the group went into the

bathroom.

         Thompson later went outside and when she returned, Fish was on the phone. She

overheard Fish say, "'I love you,'" and inferred that Fish was talking to his former

girlfriend. They both went outside. As they were arguing, a mutual friend named "Nick"



                                             7
approached. Nick, Thompson and Fish then went back inside the bathroom. At that

point, the others had left except Page.

       Thompson testified she started to flirt with Nick. Nick later walked Thompson to

her car, where they became "intimate." Afterwards, Thompson alone returned to the

bathroom. Thompson found Fish and Page passed out. When Thompson awakened Fish,

he seemed upset and asked Thompson why she had bothered coming back. As

Thompson was looking for some cigarettes, Fish pushed her hard against the wall and

struck her in the face with his fist. Fish next grabbed Thompson around the neck and

continued striking her as she fell to the floor. According to Thompson, Page was

unconscious during the attack.

       Thompson found a knife on the floor she said belonged to Fish. Fish had received

the knife for Christmas. However, Fish was attempting to barter the knife because it was

unlawful for him to carry a weapon under the terms of his probation. Earlier that

evening, Thompson had seen the knife resting on a sink in the bathroom.

       Thompson testified she swung the knife at Fish to get him to stop his attack.

Thompson swung the knife at Fish a second time when he continued his attack. She then

managed to roll Fish off of her and run outside.

       Thompson testified that Fish followed her outside, knocked her to the ground and

attempted to take the knife away from her. When Fish could not get the knife out of

Thompson's hand, he used both his hands to push the knife toward her. Thompson

believed Fish intended to slash her throat. Although cut in the struggle, Thompson



                                            8
managed to push Fish off of her. She then ran back into the bathroom and attempted to

awaken Page so that she could use his telephone to call for help.

       Thompson first realized Fish was hurt when he followed her back into the

bathroom. At that point, Page awakened because Thompson was screaming they both

needed medical attention. Thompson sat down next to Page, started to cry and told him

about the attack by Fish. In response, Page told Fish he was no longer welcome in the

park area. About 10 minutes later, Crosbie came into the bathroom. When police arrived

and asked about the knife, Thompson said she retrieved it from under a blanket, where

she had hidden it from Fish, and slid it across the floor to the officer.

                                        DISCUSSION

                                               I

       Thompson contends the court erred when it refused to allow Thompson to cross-

examine Fish regarding the maximum punishment he faced in state prison if it was

subsequently determined he violated the terms of his probation.

       A. Additional Background

       Outside the presence of the jury, the defense sought to use the terms of Fish's

probation to impeach Fish on cross-examination. In particular, the defense argued Fish

had a motive to lie on the witness stand because Fish was on probation and if his

probation was revoked, he could go to prison. The court agreed this line of questioning

was relevant on the issue of bias but limited the defense to asking, "Are you [i.e., Fish] on

probation, and if you violate any laws, can your probation be revoked?" or "something

like that in generic terms." However, the court refused to allow the defense to get into

                                              9
specific details regarding Fish's alleged probation violation because, according to the

court, that issue was still pending.

       In response, the defense argued that, if one of the terms of Fish's probation was he

not drink or have weapons, Fish had the motive not to tell the truth that he was drinking

alcohol on the day of the attack or that the knife belonged to him. With regard to the use

of alcohol, the court noted Fish's probation order merely said he should not knowingly

use or possess alcohol if directed by probation. The court also noted that Fish admitted

he was drunk on the night of the stabbing and thus, with regard to alcohol use, he had

little motive to testify in a certain way out of concern for violating probation.

       With regard to weapons and the terms of probation, the court noted Fish was not

allowed to knowingly "'possess a firearm, ammunition or deadly weapon.'" The court

thus found this was a "relevant area of inquiry" if the defense wanted to argue the theory

that the knife belonged to Fish and, as such, that he had a motive to lie or risk violating

the terms of his probation.

       Next, the defense argued it wanted to impeach Fish about using force or threats of

violence on another, which was another term of Fish's probation. The defense's theory, as

noted, was that Fish was the aggressor in the stabbing incident and, if Fish admitted as

much, that would be a separate basis to violate his probation. The defense specifically

asked the court whether Fish could be asked the following question: "Whether he

understands that for those violations, he [could be] revoked and go to state prison for up

to five years, goes to his motive to testify?"



                                                 10
       In response, the court noted this particular condition of probation "simply reflects

what the law is: you can't assault or batter people." Nonetheless, the court ruled to allow

the defense to question Fish about this condition of probation. The court also ruled,

however, the number of years Fish might serve in state prison if his probation was

revoked was irrelevant and inadmissible. The court therefore found the defense could ask

Fish "if he understands that if he violates probation he can go to prison."

       The record shows the prosecutor objected to the court's ruling, noting there was no

evidence Fish was given any sort of benefit or clemency from the prosecution with

respect to the potential violation of probation. In response, the court noted either side

could ask Fish whether he has been promised anything for his testimony in this case,

inasmuch as "[t]here can be no suggestion that something is true."

       The record shows the defense in fact questioned Fish as follows regarding the

terms of his probation, including whether he hit Thompson or carried a knife:

       "Q [The defense] Now, you don't remember Stacy Thompson being cut during this

incident, correct?

       "A [Fish] Correct.

       "Q You were pretty drunk, right?

       "A I was drunk.

       "Q Hard to remember what happened, correct?

       "A Correct.

       "Q And you didn't hit her?

       "A No, I never hit her.

                                             11
       "Q Never hit her.

       "A Never.

       "Q And you didn't cut her?

       "A I didn't cut her. I don't have a knife. I'm not allowed to carry a knife.

       "Q And you're not allowed to carry a knife because you're on probation, right?

       "A Correct.

       "Q And there are conditions of your probation.

       "A Yes, there are.

       "Q And one of those conditions is that you not have a knife, correct?

       "A Correct.

       "Q So you know that if you're carrying a knife, you could be violated on your

probation?

       "A Correct.

       "Q And you could go to state prison for that, correct?

       "A Yes, sir."

       B. Guiding Principles and Analysis

       The confrontation clause provides that "[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses against him." (U.S. Const.,

6th Amend.) This right "includes the right to cross-examine adverse witnesses on matters

reflecting on their credibility." (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 841–

842.) "As the high court has explained, cross-examination is required in order 'to expose



                                             12
to the jury the facts from which jurors . . . could appropriately draw inferences relating to

the reliability of the witness.' [Citation.]" (People v. Smith (2007) 40 Cal.4th 483, 513.)

       Nonetheless, "trial judges retain wide latitude insofar as the Confrontation Clause

is concerned to impose reasonable limits on such cross-examination based on concerns

about, among other things, harassment, prejudice, confusion of the issues, witness' safety,

or interrogation that is repetitive or only marginally relevant." (Delaware v. Van Arsdall

(1986) 475 U.S. 673, 679; see Crane v. Kentucky (1986) 476 U.S. 683, 690.) "A trial

court's limitation on cross-examination pertaining to the credibility of a witness does not

violate the confrontation clause unless a reasonable jury might have received a

significantly different impression of the witness's credibility had the excluded cross-

examination been permitted." (People v. Quartermain (1997) 16 Cal.4th 600, 623–624.)

       "As long as the cross-examiner has the opportunity to place the witness in his or

her proper light, and to put the weight of the witness's testimony and credibility to a

reasonable test which allows the fact finder fairly to appraise it, the trial court may

permissibly limit cross-examination to prevent undue harassment, expenditure of time, or

confusion of the issues." (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1386; see People v.

Ayala (2000) 23 Cal.4th 225, 269 [noting in the exercise of the right to confront a witness

"'the accused, as is required of the State, must comply with established rules of procedure

and evidence designed to assure both fairness and reliability in the ascertainment of guilt

and innocence'"].)

       Here, under these standards, we conclude the trial court did not violate

Thompson's right under the confrontation clause by refusing to allow the defense to

                                              13
question Fish regarding the maximum number of years he potentially could face in state

prison if he was found at a subsequent hearing to be in violation of the terms of probation.

The "evidence" of the maximum number of years Fish could serve in state prison, if such

a violation was found, was "only marginally relevant," at best (see Delaware v. Van

Arsdall, supra, 475 U.S. at p. 679), and "was not obviously probative on the question" of

his reputation for honesty or veracity or their opposites (see People v. Dement (2011) 53

Cal.4th 1, 52).

       What's more, the record shows Thompson "otherwise had 'ample opportunity' to

impeach [Fish]" (see People v. Contreras (2013) 58 Cal.4th 123, 153) on various subject

matters, including those related to the potential violation of probation. Indeed, as noted

ante, the defense questioned Fish about whether he previously had been convicted of

robbery; whether he was on probation during Thompson's trial; whether he understood

that possession of a knife/deadly weapon violated the terms of his probation; and whether

he understood that a violation of probation could result in a prison sentence.

       In addition, the record shows the defense during closing argument aggressively

attacked Fish's credibility in arguing that Thompson acted in self-defense when she used

the knife against Fish. The defense specifically argued that Fish's "credibility [was]

impeached"; that he was "not a nice guy"; that he was a "serious alcohol abuser" whose

blood alcohol at the time of the stabbing was "quadruple the legal limit for driving" in

California; that he recently was convicted of robbery, a felony; and that he had a

penchant for lying, as demonstrated by the fact he was untruthful when he initially told

the police his wounds were self-inflicted.

                                             14
       On this record, we conclude Thompson had more than an ample opportunity to

place Fish "in his . . . proper light, and to put the weight of [his] testimony and credibility

to a reasonable test which allows the fact finder fairly to appraise it." (In re Ryan N.,

supra, 92 Cal.App.4th at p. 1386.)

       As such, and given our conclusion that any evidence of the maximum prison term

Fish could face if he was found to be in violation of probation was at best "only

marginally relevant" (Delaware v. Van Arsdall, supra, 475 U.S. at p. 679), we conclude a

reasonable jury would not have received a significantly different impression of Fish's

credibility had the excluded cross-examination been permitted. (See People v.

Quartermain, supra, 16 Cal.4th at pp. 623–624; see also People v. Whisenhunt (2008) 44

Cal.4th 174, 208 [noting the court properly limited the cross-examination of a witness

regarding the specifics of an alleged affair between the witness and the defendant's friend

because the "additional impeachment value of the excluded evidence was minimal in

relation to the major areas of impeachment already raised by the admitted evidence, and a

reasonable jury would not have received a significantly different impression of [the

witness's] credibility even if the excluded evidence had been admitted"]; compare People

v. Allen (1978) 77 Cal.App.3d 924 [noting the court erred in refusing to allow cross-

examination of the defendant's accomplice, a minor, and of the minor's mother, regarding

two other robbery charges pending against the minor because the defendant was

prevented from effectively attacking the credibility of both witnesses by showing a

motive to fabricate, to wit: an expectation that if the minor identified defendant as an



                                              15
accomplice in the robbery, the minor in return would be shown leniency in the resolution

of the other recent charges then pending against him].)

                                              II

       Thompson next contends defense counsel was ineffective for failing to object to

Page's out-of-court statements that Thompson stabbed Fish "in the back of the neck, then

sliced him" and that Thompson did so because "he fucked that bitch over there," as

testified to by Page and Officer Garcia.

       A. Additional Background

       As noted ante, Page testified inconsistently regarding whether he made statements

to the police on the night of the stabbing. Specifically, Page testified as follows

regarding this issue:

       "Q [Prosecutor] Did you speak to the police about this incident?

       "A [Page] No, sir.

       "Q Did you speak to an officer on the scene by the name of Sergeant Davis?

       "A I might have. He's a friend of mine.

       "Q You know Sergeant Davis?

       "A Yes, sir.

       "Q Okay. Did you tell -- did you give a statement to Sergeant Davis?

       "A I might have.

       "Q Okay. I'm going to -- did you tell Sergeant Davis how this attack occurred?

       "A I was asleep.

       "Q Okay. You told Sergeant Davis that you were asleep?

                                             16
"A Yes, sir.

"Q Okay. If I showed you a report of Sergeant Davis' about what you said, would

that -- do you think that would refresh your recollection as to what you told

Sergeant Davis?

"A I don't remember even talking to him.

"[Prosecutor]: If I can have one moment, please, your honor.

"The Court: All right. Since he's said he doesn't remember, you can treat it as

impeachment with a prior statement. Just ask him if he said what's in the report.

"Q All right. Did you tell Sergeant Davis when you had left the restroom that

evening that, quote, 'She stabbed him in the back of the neck, then sliced him?'

Did you tell Sergeant Davis that?

"A I could have.

"Q Okay. Did you also tell Sergeant Davis -- when Sergeant Davis asked you

why it had happened, did you tell Sergeant Davis 'Because he fucked that bitch

over there'?

"A That don't make any sense to me.

"Q Okay. So you didn't tell Sergeant Davis that?

"A No.

"Q So when asked by the police to describe what happened, you didn't tell them

that Ms. Thompson had stabbed the back of Mr. Fish's neck and then sliced him?

"A I didn't see that. I saw the aftermath of it.

"Q But you're saying you didn't tell the police that?

                                      17
       "A I don't remember."

       As also noted ante, Officer Garcia testified he was standing next to Sergeant Davis

on the night of the stabbing when Page made the statements, "She stabbed him in the

back of the neck, then sliced him" and "Because he fucked that bitch over there," in

response to Sergeant Davis's questioning. In addition, the record shows that when

Crosbie initially entered the bathroom, he saw Page awake and sitting on the floor right

next to Thompson.

       B. Guiding Principles

       "'"A criminal defendant is guaranteed the right to the assistance of counsel by both

the state and federal Constitutions. [Citations.] 'Construed in light of its purpose, the

right entitles the defendant not to some bare assistance but rather to effective assistance.'"

[Citations.] It is defendant's burden to demonstrate the inadequacy of trial counsel.

[Citation.] [The California Supreme Court has] summarized defendant's burden as

follows: "'In order to demonstrate ineffective assistance of counsel, a defendant must

first show counsel's performance was "deficient" because his [or her] "representation fell

below an objective standard of reasonableness . . . under prevailing professional norms."

[Citations.] Second, [the defendant] must also show prejudice flowing from counsel's

performance or lack thereof. [Citation.] Prejudice is shown when there is a "reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome."'" [Citation.] [¶] Reviewing courts defer to

counsel's reasonable tactical decisions in examining a claim of ineffective assistance of

                                              18
counsel [citation], and there is a "strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance." [Citation.] Defendant's burden is

difficult to carry on direct appeal, as we have observed: "'Reviewing courts will reverse

convictions [on direct appeal] on the ground of inadequate counsel only if the record on

appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her]

act or omission.'" [Citation.]' [Citation.]" (People v. Vines (2011) 51 Cal.4th 830, 875–

876.)

        C. Deficiency

        We conclude the defense had a rational tactical reason for not objecting to Page's

and Officer Garcia's testimony regarding Page's out-of-court statements to Sergeant

Davis because we conclude on this record that testimony was admissible under Evidence

Code section 1235. That statute provides: "Evidence of a statement made by a witness is

not made inadmissible by the hearsay rule if the statement is inconsistent with his

testimony at the hearing and is offered in compliance with Section 770."4

        The "fundamental requirement" of Evidence Code section 1235 is that the

statement in fact be inconsistent with the witness's trial testimony. (People v. Sam (1969)

71 Cal.2d 194, 210.) Thus, the testimony of a witness that he or she neither remembers

an event nor making a statement generally is not "inconsistent" within the meaning of


4       Evidence Code section 770 provides: "Unless the interests of justice otherwise
require, extrinsic evidence of a statement made by a witness that is inconsistent with any
part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so
examined while testifying as to give him an opportunity to explain or to deny the
statement; or [¶] (b) The witness has not been excused from giving further testimony in
the action."
                                             19
Evidence Code section 1235 with that witness's prior statement describing the event.

(See People v. Green (1971) 3 Cal.3d 981, 988.)

       "However, courts do not apply this rule mechanically. 'Inconsistency in effect,

rather than contradiction in express terms, is the test for admitting a witness' prior

statement [citation], and the same principle governs the case of the forgetful witness.'

[(People v. Green, supra, 3 Cal.3d at p. 988.)] When a witness's claim of lack of memory

amounts to deliberate evasion, inconsistency is implied. (Id. at pp. 988–989.) As long as

there is a reasonable basis in the record for concluding that the witness's 'I don't

remember' statements are evasive and untruthful, admission of his or her prior statements

is proper. [Citation.]" (People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220; see People

v. Gunder (2007) 151 Cal.App.4th 412, 418 [noting that in admitting the "prior

extrajudicial statement of a forgetful witness as an inconsistent statement, the

forgetfulness must be feigned rather than the consequence of a float [through] the waters

of Lethe"].)

       Here, the record provides a sound and reasonable basis for the court's implicit

conclusion that Page's testimony that he did not remember making the statements to

Sergeant Davis and Officer Garcia on the night of the stabbing was the result of Page

being purposely evasive, as demonstrated by his testimony (on more than one occasion)

that he "might" have given a statement to his "friend" Sergeant Davis that night and his

testimony that he "could" have told the officers that Thompson "stabbed him [i.e., Fish]

in the back of the neck, then sliced him."



                                              20
       The record shows Page had a possible motive to feign memory loss, as he and

Thompson were friends (see People v. Gunder, supra, 151 Cal.App.4th at p. 418) and

like Fish and Thompson, Page lived in the Mission Bay park area where the stabbing

occurred.

       Moreover, although Page was intoxicated on the night of the stabbing when he

made the statements to the officers that he claimed at trial he could not, or might not,

remember, the record shows Page testified regarding various details about that night,

including that Thompson and Fish were getting along "just fine" before the stabbing; that

they initially went into the bathroom to escape the rain; that Thompson had been drinking

hard alcohol and beer along with their group; that also in the bathroom was a person

named Mark Thompson (ostensibly not related to the defendant); and that while in the

bathroom they all passed a bottle around, drank some beers and were getting along "fine"

before the stabbing. The fact Page could remember these details, on the one hand, but

provided ambiguous testimony whether he could not or might not remember making the

statements immediately following the stabbing, on the other hand, further supports our

conclusion there was a sound basis for the trial court to implicitly find, after "observing

the demeanor of the witness" (see People v. Gunder, supra, 151 Cal.App.4th at p. 418),

that Page was being evasive on the witness stand.

       As such, we conclude the admission of Page's prior statements to Sergeant Davis

and Officer Garcia was proper. (People v. Johnson, supra, 3 Cal.4th at pp. 1219-1220.)

In light of that conclusion, we further conclude Thompson's counsel had a rational

tactical reason not to object to the testimony of either Page or Officer Garcia regarding

                                             21
these statements and was therefore not ineffective. (See Evid. Code, § 1235; see also

Strickland v. Washington (1984) 466 U.S. 668, 689 [noting "a court must indulge a strong

strong presumption that counsel's conduct falls within the wide range of reasonable

professional assistance"].)

        D. Prejudice

        Finally, even assuming Thompson's counsel was deficient in failing to object to

the testimony of Page and Officer Garcia regarding Page's prior statements, we conclude

Thompson cannot show resulting prejudice. (See People v. Vines, supra, 51 Cal.4th at

pp. 875-876.) As noted, prejudice is shown "'"'when there is a "reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine confidence in

the outcome."'"'" (Id. at p. 876.)

        Turning first to Page's statement, "because he fucked that bitch over there," it is

not clear from the record what exactly Page meant by it and who he was referring to

when used the words "bitch over there," since the record shows that Fish only talked on

the telephone to his former girlfriend on the night of the attack and that there were no

women in the bathroom other than Thompson. At best, this statement is ambiguous and

its admission therefore was not prejudicial because it is not reasonably probable

Thompson would have obtained a better result had it been excluded. (See People v.

Vines, supra, 51 Cal.4th at pp. 875-876; see also People v. Watson (1956) 46 Cal.2d 818,

835.)



                                              22
       With regard to the statement, "she stabbed him in the back of the neck, then sliced

him," we note there is no dispute on this record that Thompson in fact used a knife to stab

and slice Fish. Rather, the dispute focused on whether Thompson did so in self-defense,

as she testified at trial and as the defense aggressively argued in closing, a theory the jury

rejected. Thus, the admission of this statement also was not prejudicial because it is not

reasonably probable the outcome of the case would have been different had the statement

been excluded. (See People v. Vines, supra, 51 Cal.4th at pp. 875-876; see also People v.

Watson, supra, 46 Cal.2d at p. 835.)

                                               III

       Finally, Thompson contends the court erred when, over the defense's objection, it

instructed the jury as follows with CALCRIM No. 3471, as modified: "A person who

starts a fight has a right to self-defense only if: [¶] 1. (She) actually and in good faith tried

to stop fighting; [¶] [AND] [¶] 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(.) [¶] If the defendant meets these

requirements, (she) then had a right to self-defense if the opponent continued to fight."5

       The record shows the defense objected to CALCRIM No. 3471 on the ground it

was not supported by the evidence, to wit: that Thompson was the initial aggressor in the




5      We note the jury also was instructed with CALCRIM No. 3470, which properly
reflects the law of self-defense. (See People v. Humphrey (1996) 13 Cal.4th 1073, 1082–
1083; CALCRIM No. 3470.)
                                               23
fight with Fish. The court rejected this claim, finding there was "sufficient evidence to

believe that a reasonable jury could believe the defendant was the initial aggressor ."

       It is axiomatic that "[a] party is entitled to a requested instruction if it is supported

by substantial evidence. [Citation.] 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.' [Citation.] At the same time, instructions not supported by

substantial evidence should not be given. [Citation.]" (People v. Ross (2007) 155

Cal.App.4th 1033, 1049–1050, quoting People v. Barton (1995) 12 Cal.4th 186, 201, fn.

8.)

       Here, the record contains ample evidence to support instructing the jury with

CALCRIM No. 3471. Indeed, Fish testified Thompson was the initial aggressor in the

fight when she became angry after Fish told his former girlfriend he still loved her. In

response, Thompson snatched Fish's phone. When Fish finally got his phone back, he

began to walk out of the bathroom when, according to him, Thompson came from behind

and stabbed him multiple times with a knife. The record also includes evidence from the

day before the stabbing showing Thompson as the aggressor when she and Fish were

arguing, including evidence that Thompson hit Fish in the head and chased Fish around a

parking lot, while Fish attempted to avoid the conflict.

       Although Thompson disputed Fish's account of the stabbing, including the events

leading up to it, we independently conclude Fish's testimony was more than sufficient to




                                              24
support instructing the jury with CALCRIM No. 3471, as the trial court correctly found.

(See People v. Ross, supra, 155 Cal.App.4th at pp. 1049–1050.)6

                                     DISPOSITION

      The judgment of conviction is affirmed.



                                                                    BENKE, Acting P. J.

WE CONCUR:


HUFFMAN, J.


McDONALD, J.




6     Because we have rejected each of Thompson's individual claims of error, there is
no cumulative error. (See People v. Tully (2012) 54 Cal.4th 952, 1061.)
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