Filed 9/30/15 P. v. Hernandez CA2/3
Opn after rehearing on the court’s own motion

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                             B253166

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. BA385638)
         v.

JOSE REDANI HERNANDEZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Craig J. Mitchell, Judge. Affirmed.

         Richard C. Neuhoff, under appointment by the Court of Appeal, for Defendant and
Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Eric J.
Kohm, Deputy Attorneys General, for Plaintiff and Respondent.



                                            _____________________
       Appellant Jose Redani Hernandez appeals from the judgment entered following
his conviction by jury for first degree murder, armed with a firearm. (Pen. Code,
§§ 187, 12022, subd. (a)(1).) The court sentenced appellant to prison for 26 years to life.
We affirm.
                                 FACTUAL SUMMARY
1. People’s Evidence.
       The evidence established on September 26, 1995, Liliana Evangelista was the
manager of the apartment building at 526 South Oxford in Los Angeles. As Evangelista,
en route to the third floor, was ascending a staircase in the building, she saw a man sitting
on the staircase. The man partially covered his face with his hand, and appeared to be
“covering himself with his cap.” Evangelista went to the apartment of Catarino Barrera
and asked for his help to show an apartment to a prospective tenant.
       As Barrera and Evangelista were going downstairs, they saw the man seated on the
stairs between the second and third floor.1 Appellant was crouching. A few minutes
after Barrera and Evangelista passed appellant and arrived on the first floor, there were
gunshots. Immediately thereafter, Barrera and Evangelista saw three male Hispanics,
including appellant, running down the stairs. Appellant was the third male.
       Although there may have been conflicting evidence concerning whether appellant
had a gun (see the facts in part 1 of our Discussion, incorporated here by reference),
Evangelista at one point testified appellant, wearing a blue baseball cap, was holding a
gun in his right hand and bleeding. All three men ran out the building. Evangelista
testified appellant was bleeding from his right side. After the three men fled, Barrera and


1
        Appellant conceded during opening statement that he was the man sitting on the
stairs and the man whom Evangelista and Barrera saw sitting on the stairs as the latter
two descended the stairs. We note, as discussed below, appellant’s blood was discovered
at the crime scene and leading from it. There is no dispute the man whom Evangelista
first saw sitting on the stairs, and the man whom she and Barrera later saw sitting there
when the latter two descended the stairs, was appellant. Appellant states, inter alia, “the
defense conceded that [appellant] was the male whom Barrera and Evangelista saw
sitting on the stairs and running out of the building bleeding . . . .”


                                             2
Evangelista went upstairs. There were bloodstains along the staircase. Evangelista went
to apartment No. 302. The apartment’s door was ajar. Amilcar Saravia, mortally
wounded, was on the floor inside the apartment. Evangelista called 911 and told the
operator three Hispanic suspects were involved in the shooting of Saravia.
       In September 1995, Pablo Landino was walking on Fifth towards Oxford. Three
men were running. One was behind the other two and his leg was bleeding. The two
men conversed with each other, looked back at the third, then waited for him to catch up.
The third man was holding his hand near his stomach. Once the third man caught up to
the other two, all three entered a car parked on Fifth and drove away.
       Los Angeles police went to the apartment building and saw blood spatters on the
ground. The blood spatters continued on the floor, wall, and handrail as police entered
the building and ascended the stairs. Blood was on the outside of the door and near the
doorjamb of apartment No. 302. Saravia’s body was on the floor inside the apartment.
Saravia had a gunshot wound in his forehead and a gunshot wound in his upper right arm.
The blood trail continued outside the building. The blood trail continued to the east
sidewalk of Oxford, then north, then east on Fifth, then across the street to the north side
of Fifth, where the trail ended. Blood samples collected from the crime scene came from
Saravia and appellant. Blood samples on the stairwell, outside the apartment, and on the
street belonged to appellant.
       A bullet was embedded in the floor under Saravia’s body. A bullet had struck the
opening edge of the door. The door frame had recent damage caused by a sharp
instrument. A criminalist did not find cartridge casings, a fact leading the criminalist to
conclude the gun used in the shooting was a revolver. A significant sum of money was
under the mattress in apartment No. 302.
       Saravia died as a result of a gunshot wound to the forehead. The wound would
have been instantly incapacitating, causing Saravia to fall immediately. Because the
wound showed no signs of stippling or soot, the shooter must have been at least two feet
from Saravia when the shooter fired the gun. The bullet embedded in the floor under
Saravia’s body was extracted, and that bullet and a bullet recovered from his forehead


                                              3
were fired from the same gun. Saravia suffered a second gunshot wound to his upper-
right arm. That wound could have been caused by a shooter standing somewhere below
Saravia’s feet and pointing the gun slightly downward at him while he was on the floor.
       On September 27, 1995, appellant went to the emergency room at Los Angeles
County/USC Hospital (hereafter, County). Dr. Kevin Hilton, who later performed
surgery on appellant’s hand, testified as follows. Appellant stated he had cut his hand
with a circular saw about 24 hours before arriving at County. Dying tissue around the
wound caused Hilton to conclude the injury most likely had been inflicted at least a day
before he saw appellant. The wound did not have jagged edges. The wound was caused
by a smooth, very sharp blade, such as a machete, and was not consistent with a wound
caused by a circular saw. A copious amount of blood would have spurted from the
wound. On September 29, 1995, Hilton performed surgery on appellant’s hand.
       In May 2011, Los Angeles Police Detective Michael Pelletier and other detectives
went to a facility near Bakersfield to contact appellant. Appellant had been identified as
a “cold hit” in Saravia’s case. After contacting appellant, a detective collected DNA
samples from him. Detectives asked appellant if he had any new scars and appellant
replied no. However, when appellant was asked to remove his jacket, he immediately
said he had a scar on his hand. Appellant claimed he did not know what happened, but
acknowledged the wound was caused by a machete.2
       In August 2011, Ricardo Martinez and appellant conversed while the two were in
custody in jail. Martinez knew appellant but had not seen him since 1992. Martinez
testified appellant told him the following. Appellant was being held on a 16-year-old
murder case. Appellant went to the Beverly Apartments, entered, and had a problem with
a male. The male had a machete in his hand and appellant had a gun. Appellant tried to
defend himself from the male. Appellant was cut on the hand and his hand bled.

2
        During a June 11, 2011 call in jail, appellant told the caller to tell a person named
Javier that if “they” asked Javier any questions, Javier was to deny knowing anything.
The caller agreed to convey the message. During an August 21, 2011 call, appellant told
a caller “they” could not make her say anything.


                                              4
Appellant shot the male in the torso and the male died. Appellant was by himself when
he shot the male. Appellant exited the apartment and came outside, and blood was
dripping from his hand. A second male saw appellant leaving with the gun and bleeding.
Appellant threw the gun away. Sixteen years later, the second male recognized appellant
and was a witness against him.
       Martinez testified he voluntarily told law enforcement personnel what appellant
had said, and Martinez received no benefit for doing so. However, after disclosing the
information, Martinez asked Pelletier if the prosecutor assigned to appellant’s case was
going to visit Martinez. Martinez did not ask Pelletier to talk to the prosecutor to get a
deal for Martinez. Martinez asked nothing from anyone. Pelletier testified Martinez told
Pelletier that Martinez would help the prosecutor “from the bottom of [Martinez’s]
heart,” but Pelletier also testified Martinez said, “I hope [the prosecutor] help me a little
bit, . . . with this case because this case is bullshit.”
2. Defense Evidence.
       In defense, Ryan O’Connor, a physician specializing in emergency medicine (and
a court-appointed expert witness), reviewed appellant’s medical records from County
generated from September 27, 1995 through October 1, 1995. O’Connor concluded from
the records as follows. When appellant arrived at the hospital, he had lacerations on his
left hand. He also had bruises near his left eye, on his chest, and on his back, and an
abrasion on his chin. The wound to appellant’s hand was defensive.
       According to the medical records, the wound to appellant’s left hand was
described as accidental. Appellant told emergency room personnel the injury was from a
circular saw. The wound could have been caused by a saw. O’Connor could not
determine when appellant received the bruises. O’Connor’s understanding a machete had
been involved was based on information appellant’s trial counsel gave to O’Connor and,
based solely on that information, O’Connor opined the wound to appellant’s left hand
was defensive.
       On October 10, 2011, Pelletier interviewed Martinez in jail. Pelletier made it clear
to Martinez that Pelletier was not offering anything in exchange for Martinez’s statement.


                                                 5
Martinez told Pelletier that appellant told Martinez that appellant had left DNA evidence
at the scene of the shooting due to a cut appellant had suffered.
                                           ISSUES
       Appellant claims (1) the trial court improperly commented on evidence, (2) the
court erroneously failed to admit evidence under Evidence Code section 356, (3) the
court erroneously failed to take judicial notice of certain matters, (4) the court
erroneously excluded defense exhibits J and K, (5) the prosecutor committed misconduct
during jury argument, (6) the court committed instructional error regarding perfect self-
defense and imperfect self defense, (7) appellant was denied effective assistance of
counsel, and (8) cumulative prejudicial error occurred.
                                       DISCUSSION
1. The Court Did Not Improperly Comment on Evidence.
       At trial, Barrera testified during direct examination he saw the three men run down
the stairs and out the building. The prosecutor asked what Barrera noticed in the hands of
each of the three, and Barrera replied, “[t]hey were holding weapons.” The court asked,
“[a]ll of them or just some of them?” Barrera later testified the first man and the last man
running out the building were holding handguns. The person whom Barrera had seen
sitting on the stairs was one of the three who ran out the building while holding a gun,
and that person was holding the gun in his right hand. When Barrera first saw the person,
the person was crouching. Barrera demonstrated and the court stated Barrera “leaned
forward in his chair, drawing his head closer to his lap.” During cross-examination,
Barrera testified that, at the preliminary hearing, he denied having seen “anyone carrying
a handgun as they were running down the stairs after the shooting.”
       During redirect examination, Barrera testified as follows. Prior to the preliminary
hearing, Barrera told a detective all three men running down the stairs and out the
building had handguns, and one of the three was the man whom Barrera initially had seen
sitting on the stairs. Barrera also told a detective substantially the same thing earlier on
the day Barrera was testifying at trial.



                                              6
       At trial, Evangelista testified as follows during direct examination. When the
three men ran out the building, the last one had a gun in his hand. This was the same man
who had been sitting on the staircase and the same man who was bleeding. He was
wearing a baseball cap. She did not notice whether either of the other two men had a
gun. Her memory when she spoke to the detective was better than her memory at time of
trial. On the day of the incident, Evangelista told a detective two of the three men
running down the stairs and out the building had handguns.
       Later during direct examination, Evangelista testified three men were running in
line out the building and she could not remember which two had the handguns. The man
on the stairs before the shooting was wearing a cap, and was the third man later coming
down the stairs. The following then occurred: “[The Prosecutor:] Q . . . Now, can you
recall whether when you saw the men running out the building with two of them having
handguns, whether any of the men carrying a handgun was wearing a cap? [¶] The
Court: Counsel, we covered this yesterday. The state of the testimony is that the third
person running down the stairs, who was injured, had a cap on and had a gun on him.”
The prosecutor indicated she had no further questions.3
       Appellant claims the trial court’s “state of the testimony” comment was improper.
He concedes that (consistent with the trial court’s comment) Evangelista testified at one
point during her direct examination that the third person coming down the stairs was
injured and had a cap and gun. However, appellant argues Evangelista gave conflicting
testimony on whether the third person had a gun; therefore, the court’s comment focused
on testimony favorable to the People and not subjected to cross-examination. Appellant
also argues the jury may have understood the court to be commenting on Barrera’s

3
        During cross-examination (and thus after the court’s challenged “state of the
testimony” comment), Evangelista testified to the effect when she spoke to police officers
in 1995, she said the first man she saw was holding a gun; she told the detective in 1995
she “had seen the men, that they were coming with their guns”; she told the detective the
second man had a gun; she told the detective a third man (the one who had been sitting on
the staircase) ran by; and she did not remember whether, when she spoke to the detective
in 1995, she told him the third man had a gun.


                                             7
testimony as well. Appellant maintains the comment was an inaccurate summation of the
record and impermissibly tended to remove doubt appellant held a gun.
       However, appellant waived the issue of whether the trial court’s comment was
improper by failing to object timely to it. (Cf. People v. Sanders (1995) 11 Cal.4th 475,
531.) Even if the issue were not waived, it does not appear the trial court was
summarizing the record for the jury, or focusing on testimony of Evangelista favorable to
the People and ignoring any conflicting testimony from her. The trial court’s comment
was simply a comment directed to the prosecutor, precluding her from eliciting
cumulative testimony from Evangelista. Evangelista already had testified during direct
examination the third person coming down the stairs was injured and had a cap and gun.
The court did not, in its comment, expressly refer to Barrera.
       Moreover, CALCRIM No. 3550, which the court gave the jury during the final
charge, provided evidence of the trial court’s intent in making the challenged comment.
That instruction told the jury, “Do not take anything I said or did during the trial as an
indication of what I think about the facts, the witnesses, or what your verdict should be.”
The court did not, in that instruction, make any exception for the challenged comment.
The trial court did not improperly comment on evidence.4




4
        Neither People v. Moore (1974) 40 Cal.App.3d 56 (Moore), nor Forte v. Schiebe
(1956) 145 Cal.App.2d 296 (Forte), cited by appellant, compels a contrary conclusion.
Unlike the situation in the present case, in Moore, the trial court’s challenged comments
followed the presentation of evidence by both parties, reasonably could be viewed as an
effort to summarize the evidence presented by both, and did not involve an admissibility
issue. (Moore, at pp. 65, 67.) In Forte, the trial court made comments, then expressly
rejected the defendant’s request that the court make any additional comments “ ‘out of
the hearing of the jury.’ ” (Forte, at p. 300.) The court then stated, “ ‘[t]he jury is part of
this court.’ ” (Ibid.) The court subsequently repeated the substance of the court’s
previous comments. (Ibid.) That did not occur in this case.


                                               8
       2. The Court Did Not Erroneously Fail To Admit Evidence Under Evidence Code
Section 356.
       During trial, appellant called O’Connor out of order as a defense witness and, as
mentioned, he reviewed appellant’s County medical records. During cross-examination,
the prosecutor asked O’Connor a question to the effect if it was true appellant did not
seek immediate medical treatment for his wound. O’Connor replied, “According to the
statements [appellant] made in the emergency room, he delayed seeking medical
attention. I believe it was a day.” During redirect examination, appellant’s counsel asked
O’Connor, “[appellant] didn’t seek treatment in the emergency room for a day, but he did
seek treatment from someplace else prior to the surgery?” The court posed its own
hearsay objection.
       Appellant later proffered a portion of a three–page surgical report upon which
O’Connor and Hilton had relied, and about which Hilton had testified. The portion
reflected that during a conversation about appellant’s arm injury, he apparently stated to
emergency room personnel that he sought medical treatment elsewhere, his wound was
treated, and he was subsequently sent to County. Appellant sought to introduce that
statement under Evidence Code section 356. The court excluded the portion pertaining to
appellant “having received outside treatment.”
       Appellant argued the prosecutor had introduced only evidence from medical
records, and appellant was proffering a statement in a testifying doctor’s report.
The court indicated it would have to give a limiting instruction that the jury could use
“this” information, not for its truth, but to understand “what body of information this
doctor had prior to providing treatment.” However, appellant specifically complained the
prosecutor was trying to introduce, for their truth, statements made to the surgeon that
appellant had not sought medical care, and appellant’s counsel later argued, “the People
cannot argue it was received for the truth.” (Italics added.)




                                             9
       The court replied, “What the People can argue is simply that, we do not know
whether he went to go some [sic] Tylenol on the 26th. We don’t know what he did in
terms of his injuries. All we do know is that he did not seek the assistance of [County]
until 24 hours after [the] incident occurred.” (Italics added.) Appellant’s counsel replied,
“And that’s fine. I don’t have a problem with that. Exactly what you said, he did not
seek medical treatment from [County] until the 27th.”5
       During closing argument, the prosecutor commented, “even though [appellant]
was cut to the most severe degree on that hand, he delayed seeking medical care.” Later,
the prosecutor commented, “So the defendant made sure he didn’t seek medical attention
on the day of the shooting, even though that was an extremely severe injury. That was by
design, to try to avoid detection. . . . [¶] . . . [¶] The only reason for the defendant to
delay medical care to that severe wound and to then lie about how he sustained that
wound is to avoid detection.”6
       Appellant claims the trial court erroneously refused to admit into evidence,
pursuant to Evidence Code section 356,7 statements by appellant. We disagree. The

5
       During its final charge, the court told the jury, “With respect to the medical
records reviewed by the surgeon who operated on the defendant at County USC Medical
Center, you are to consider the contents of those records solely for the purpose of
understanding what information the treating surgeon relied upon, not for establishing the
truth of [the] contents of such records.”
6
       Appellant asserts the jury deliberated about five-and-one-half hours. During
deliberations, the jury asked the court a question concerning the meaning of the word
“AND” in such instructions as CALCRIM Nos. 401, 520, and 521, and the court
responded. The record does not reflect the jury asked an additional question(s).
7
       Evidence Code section 356 states, in relevant part, “Where part of an act,
declaration, conversation, or writing is given in evidence by one party, the whole on the
same subject may be inquired into by an adverse party; . . . and when a detached act,
declaration, conversation, or writing is given in evidence, any other act, declaration,
conversation, or writing which is necessary to make it understood may also be given in
evidence.” The requirement that the remaining statements have some bearing upon, or
connection with, the admission or declaration in evidence is a requirement of relevance.
(Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 850.)


                                              10
court ultimately ruled, “All we do know is that he did not seek the assistance of [County]
until 24 hours after [the] incident occurred.” (Italics added.) The trial court’s ruling was,
effectively, not merely a ruling limiting jury argument but an evidentiary ruling that any
evidence from the medical records, proffered by the People or appellant, of appellant’s
statements relating what he did before he sought assistance from the County, and offered
for their truth, was inadmissible. (Accordingly, the trial court gave the limiting
instruction as to the medical records upon which Hilton relied.) The trial court’s ruling
rendered appellant’s proffered first and second statements irrelevant and inadmissible as
rebutting evidence.
       Finally, appellant argues the prosecutor’s previously quoted comments during
closing argument violated the trial court’s ruling limiting prosecutorial argument.
However, appellant failed to object on the ground of prosecutorial misconduct and
request a jury admonition with respect to the challenged comments (appellant was
required to do both), and a jury admonition would have cured any harm. Appellant
waived the issue of whether the comments constituted misconduct. (Cf. People v. Gionis
(1995) 9 Cal.4th 1196, 1215 (Gionis); People v. Mincey (1992) 2 Cal.4th 408, 471
(Mincey).)
       Moreover, even if the challenged prosecutorial comments were misconduct, we
evaluate the misconduct for prejudice and to determine whether appellant’s right to due
process was violated. (People v. Bell (1989) 49 Cal.3d 502, 534.) During jury argument,
appellant acknowledged the prosecutor argued appellant did not immediately go to the
hospital. Appellant’s counsel then commented, “We actually don’t know that,” appellant
might have gone to County at 12:30 a.m. on September 27, 1995, and appellant was not
sophisticated enough to know police might submit a medical alert to a hospital.
       In its final charge, the court, using CALCRIM No. 104, told the jury nothing
attorneys say was evidence, and their remarks during closing arguments were not
evidence. We presume the jury followed the instruction. (Cf. People v. Sanchez (2001)




                                             11
26 Cal.4th 834, 852.) There was strong evidence of appellant’s guilt,8 whether or not he
delayed seeking medical treatment to avoid detection. The alleged misconduct was
neither prejudicial nor violative of appellant’s right to due process.
3. The Court Did Not Erroneously Fail to Take Judicial Notice of Certain Matters.
       During direct examination, Martinez testified he had suffered felony convictions
for drug possession and possession of drugs for sale, he had been “convicted of drugs
dating back to the late ‘80’s,” and, except for one felony conviction, all of his felonies
related to “drugs and drug use and sales.” His most recent arrest for drugs occurred on
June 8, 2011, and, on November 10, 2011, he was convicted of that drug charge. During
the pendency of proceedings in that case, Martinez was in county jail. During cross-
examination, Martinez testified as follows. Martinez had his jailhouse conversation with
appellant in August 2011. In Martinez’s drug case, he was offered a plea bargain of five
years in prison. Martinez took the deal. If Martinez’s case had gone to trial, he would
have faced three years’ imprisonment for each of his prior drug sales convictions.
       Pelletier testified that on October 10, 2011, he interviewed Martinez in jail and
Martinez said the following. Martinez wanted Pelletier to have the prosecutor in the
present case meet Martinez in court on November 3, 2011, the date of Martinez’s next
court appearance. Martinez hoped the prosecutor would help Martinez in his case.




8
        This includes the strong evidence appellant was at least an accomplice. Appellant
acknowledges “[[a]ppellant’s] presence at the scene was conceded by the defense – the
defense conceded that Hernandez was the male whom Barrera and Evangelista saw
sitting on the stairs and running out of the building bleeding . . . .” We note a “person
aids and abets the commission of a crime when he or she, acting with (1) knowledge of
the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing,
encouraging, or facilitating the commission of the offense, (3) by act or advice aids,
promotes, encourages or instigates, the commission of the crime.” (People v. Beeman
(1984) 35 Cal.3d 547, 561.) Factors relevant to a determination of whether a defendant
was an accomplice include presence at the scene of the crime, companionship, and
conduct before and after the offense. (People v. Singleton (1987) 196 Cal.App.3d 488,
492.)


                                             12
       Later during the People’s case-in-chief, the court, outside the presence of the jury,
indicated appellant had asked the court to take judicial notice Martinez faced a “30 year
imprisonment” in Martinez’s case. Appellant indicated Martinez’s file was in the
courtroom and contained an information alleging against Martinez four Health and Safety
Code section 11370.2, subdivision (a) enhancements and nine Penal Code section 667.5,
subdivision (a) enhancements.9
       Appellant indicated when Martinez (offering to provide information about
appellant’s case) contacted a deputy in a courtroom, Martinez’s case was next scheduled
for jury trial, Martinez thought he was facing 26 years in prison, and he was looking for a
better deal. The court disagreed. The court indicated a “transfer memo”10 clearly
reflected not only that Martinez’s maximum exposure in that case was 26 years in prison,
but that the People had offered five years in prison and appellant had requested two years
in prison, so for appellant to represent Martinez thought he was looking at 26 years was
inconsistent with “the court file.”
       Appellant asserted (without citation to authority) a transfer memo was not part of
the court record in Martinez’s case, and appellant was simply asking the court to take
judicial notice of the information in Martinez’s case. The court indicated everyone
present was experienced enough to know that before Martinez’s case was transferred to
department 100, discussions conducted in Martinez’s presence would have established
his maximum exposure was 26 years in prison, the People’s last offer was five years in
prison, and appellant’s counteroffer was two years in prison. The court indicated it
would not permit the jury to be told, or counsel to argue, Martinez thought he was facing
26 years in prison.

9
       In 1995, a Health and Safety Code section 11370.2 enhancement was a three-year
prison term (Health & Saf. Code, § 11370.2, subds. (a)-(c)) and a Penal Code section
667.5, subdivision (a) enhancement was a three-year prison term.
10
       We note in People v. Noriega (1997) 59 Cal.App.4th 311, 318, a “transfer memo”
was a memorandum written by a judge before transferring a case to department 100 for
trial.


                                             13
       Appellant’s counsel subsequently stated, “Forget that issue for a second. What I
really want the court to take notice of was the menacing case.”11 Appellant indicated
that, in Martinez’s case, Martinez was in court on October 6, 2011, jury trial was
scheduled for about November 6, 2011, and Martinez made his statement to Pelletier on
the eve of the date his case was scheduled for jury trial.
       The court indicated it had no problem if Martinez “posited a series of dates.” The
following then occurred: “The Court: I will read the dates that he appeared in court prior
to entering a plea. [¶] [Defense Counsel:] Thank you, your Honor. [¶] The Court:
That is the extent of what the court will take judicial notice of.” Appellant said no more
on the issue of judicial notice.
       Later, the court reminded the jury it had heard testimony Martinez and appellant
had been concurrently in custody. The court took judicial notice Martinez’s case began
on June 27, 2011, he had court appearances on specified dates in the months of July
through October 2011, inclusive, he had court appearances on November 3, 7, and 9,
2011, and his last court appearance was on November 10, 2011. The court took judicial
notice of a total of 10 dates.
       Appellant claims the trial court erroneously failed to take judicial notice of “the
charges in Martinez’s case, including the fact that the information alleged five three-year
prior convictions under Health and Safety Code section 11370.2 and five one-year priors
under Penal Code section 667.5.” Appellant also claims the trial court erroneously failed
to take judicial notice of “the dates and nature of the proceedings in that case, as reflected
in the court’s docket.”
       Appellant asked the court to take judicial notice of the information filed in
Martinez’s case and the alleged fact Martinez’s maximum exposure was 26 years in
prison. However, after the court indicated it would not permit the jury to be told, or
counsel to argue, that Martinez thought he was facing 26 years in prison, appellant’s
11
      Appellant, in his opening brief, suggests appellant’s trial counsel was indicating he
wanted the trial court to take judicial notice the docket in Martinez’s case reflected
Martinez’s trial was impending.


                                             14
counsel subsequently stated, “Forget that issue for a second. What I really want the court
to take notice of was the menacing case.” (Italics added.) Appellant’s counsel
subsequently argued accordingly. He did not return to the issue he told the trial court to
forget temporarily, nor did appellant subsequently request the court to take judicial notice
of the information filed in Martinez’s case or the alleged fact Martinez’s maximum
exposure was 26 years in prison.
       The court ruled it would take judicial notice only of the dates on which Martinez
appeared in court prior to entering a plea in his case. Appellant thanked the court and
commented no further concerning judicial notice, and the court moved on to other issues.
       A trial court’s determination of the propriety of taking judicial notice implicates
Evidence Code section 352 considerations. (Mozzetti v. City of Brisbane (1977)
67 Cal.App.3d 565, 578; Evid. Code, § 454, subd. (a)(2).) We evaluate a trial court’s
ruling under Evidence Code section 352 for abuse of discretion. (People v. Waidla
(2000) 22 Cal.4th 690, 724 (Waidla)).
       The trial court refused to take judicial notice of the information filed in Martinez’s
case and the alleged fact Martinez’s maximum exposure was 26 years in prison. The
court refused to take judicial notice because doing so would have confused the issues and
misled the jury to believe Martinez provided information to law enforcement simply
because he faced 26 years in prison in his case, when in fact the People’s plea bargain
offer, and appellant’s counteroffer, involved less prison time. The court’s refusal was
effectively a ruling under Evidence Code section 352.
       We also note the jury heard evidence Martinez had suffered multiple prior drug
sale convictions, faced three years in prison for each prior drug sale conviction, and
spoke to appellant in jail in August 2011. The jury also heard evidence Martinez spoke
to Pelletier on October 10, 2011, wanted to meet with the prosecutor on November 3,
2011, in the hope the prosecutor would help Martinez, and, on November 10, 2011, was
convicted by plea in his case. Cumulative evidence may be excluded under Evidence
Code section 352. (Mincey, supra, 2 Cal.4th at p. 439.) Judicial notice of the
information filed in Martinez’s case and the alleged fact Martinez’s maximum exposure


                                             15
was 26 years in prison as proof Martinez provided information to law enforcement in the
hope of leniency would have been cumulative.12
       Moreover, the court took judicial notice of dates of the proceedings in Martinez’s
case; to that extent, no error occurred. As to judicial notice of the nature of the
proceedings, we note the following. The court took judicial notice of 10 dates. The trial
court reasonably could have concluded the taking of judicial notice of the proceedings’
“nature” (an undefined term conceivably including everything that happened during
proceedings) on 10 different dates in Martinez’s case would have involved undue
consumption of time and confusion of issues in appellant’s case. The jury heard evidence
Martinez faced three years’ imprisonment for each of his prior drug sales convictions if
he went to trial, he was in court on October 6, 2011, he wanted to meet with the
prosecutor on November 3, 2011, and he wanted leniency. The jury also heard evidence
Martinez was convicted on November 10, 2011 pursuant to a plea bargain. The trial
court reasonably could have concluded judicial notice of the “nature” of the proceedings
would have been cumulative.13




12
        In his petition for rehearing, appellant cites People v. Bracey (1994)
21 Cal.App.4th 1532, 1542 (Bracey) for the proposition that it is established that
invocation of Evidence Code section 352 implicates the exercise of trial court discretion
with the result an appellate court cannot rely upon reasons not cited by the trial court to
uphold a section 352 ruling. Appellant’s reliance upon Bracey is misplaced. Bracey
involved, not section 352, but Penal Code section 1385, which requires a trial court to
state in its minutes the reasons for a dismissal under section 1385. Bracey concluded an
appellate court could not uphold such a dismissal by considering reasons not stated in the
minutes. (Bracey, at pp. 1540-1542.)
13
       Appellant argued in his petition for rehearing that the above sentence was
“reasoning” not proposed or briefed by either party; therefore, Government Code section
68081 precludes our reliance on said reasoning. We disagree. Section 68081 bars
appellate court reliance, not on reasoning neither proposed nor briefed, but on issues
neither proposed nor briefed.


                                             16
       Fairly read, the record reflects the trial court took judicial notice of the dates on
which Martinez appeared in court prior to entering a plea in his case, and the trial court
properly refused, under Evidence Code section 352, to take judicial notice of anything
else. Moreover, the application of ordinary rules of evidence, as here, did not
impermissibly infringe on appellant’s right to due process. (Cf. People v. Fudge (1994)
7 Cal.4th 1075, 1102-1103.)
4. The Court Did Not Err by Excluding Defense Exhibits J and K.
       During trial, appellant proffered defense exhibits J and K (hereafter, exhibits J and
K, respectively), each of which appears to be a copy of a photograph. Exhibit J appears
to depict the floor of a building, the view down a hallway on that floor, and, in the
foreground, a staircase beginning on that floor. Exhibit K appears to depict a staircase
from a vantage point on the staircase, looking downward towards the floor where the
staircase begins, and also appears to depict, on said floor, an elevator door. Neither
exhibit appears to depict blood.
       During appellant’s cross-examination of Frank Bolan (a Los Angeles police
detective at the time of the investigation), Bolan testified exhibit J depicted what one
would see if one were on the first floor standing by the staircase. He also testified a
common hallway was directly ahead and the staircase ended on the first floor. After
appellant marked exhibit K, appellant’s counsel asked Bolan, “if you were to go down the
stairs and approach the first floor, straight ahead there is a door to an elevator?” The
prosecutor objected to the question, Bolan did not answer it, and appellant’s counsel later
asked, “would that be a door to an elevator?” (Sic.) Bolan replied yes. The prosecutor
asked, “[a]s it existed back then?” and Bolan replied yes.
       Appellant asked Bolan a question about a third exhibit (a copy of a photograph)
and the court later asked, “You have no idea when these pictures were taken, do you?”
Bolan replied no. Bolan later denied knowing how many stairwells were in the building.




                                              17
       After the parties rested subject to the admission of exhibits, the prosecutor
objected to the admission into evidence of exhibit K. The court stated, “The court
concurs there was not adequate testimony that that in fact was a danger point [sic] that the
witness had privy to.” Appellant claimed testimony demonstrated exhibit K depicted the
staircase that had had blood on it. The court excluded exhibit K. The court indicated it
was clear to the court there were multiple staircases in the apartment building, one had a
blood trail and another did not, and the court was excluding exhibit K because there was
inadequate foundation as to whether exhibit K depicted the staircase used by the person
who had been bleeding. The prosecutor similarly objected to exhibit J, arguing there
were two staircases and detectives only stated the staircase depicted in exhibit J looked
like one of the staircases in the building. The court stated it concurred. Appellant argued
he “made it very clear” exhibit J depicted the hallway and the staircase with blood on it.
       The court observed there was inadequate foundation the “pristine” stairwell
depicted in exhibits J and K was the stairwell used by the person who had been bleeding
while trying to leave the apartment. Appellant then argued his “point” was to
demonstrate the layout of the building. The court indicated the exhibits lacked probative
value under Evidence Code section 352 if they depicted a “cleaned up apartment
building.” The court commented no one ever asked if there were multiple staircases, but
it was obvious to the court that there were. The court questioned the relevance of
evidence of the layout of the building and observed the photographs were not shown to
Evangelista. The court indicated exhibits J and K lacked foundation and, under Evidence
Code section 352, they were confusing. The court excluded both exhibits.
       Appellant claims the trial court erred by excluding exhibits J and K. We reject the
claim. We review for abuse of discretion a trial court’s rulings on relevance and/or
Evidence Code section 352 objections. (Waidla, supra, 22 Cal.4th at pp. 717, 723-724.)
Authentication, including authentication of a photograph, is a subset of relevance.
(People v. Goldsmith (2014) 59 Cal.4th 258, 266-267.)




                                             18
       The record reflects appellant initially was proffering exhibits J and K as evidence
of the once-bloodstained staircase. However, Bolan denied he knew when the
photographs were taken. The court alluded to them as depicting a pristine stairwell. We
have viewed the exhibits; as mentioned, neither appears to depict blood. Although
appellant maintained below there was testimony the exhibits depicted the once-
bloodstained staircase, appellant cites no such evidence here. The trial court did not
abuse its discretion by excluding exhibits J and K as irrelevant.
       Even if the exhibits depicted the once-bloodstained staircase, i.e., the staircase
used by the three men to flee, the trial court reasonably could have excluded the exhibits
under Evidence Code section 352 as confusing and misleading. The court reasonably
could have concluded the exhibits were confusing and/or misleading because the jury
might have thought, based on the depiction of a pristine staircase, that the staircase was
pristine the day of the killing and, since there was evidence appellant was bleeding that
day, he did not use the staircase and was not involved in the killing. This problem is
related to the fact Bolan testified he did not know when the photographs underlying the
exhibits were taken.
       Appellant also argued exhibits J and K were evidence of the layout of the building.
However, as mentioned, appellant cites no evidence the depicted staircase was the one
the three men used. The trial court did not abuse its discretion by excluding the exhibits
as irrelevant as evidence of the layout of the building. Moreover, there was ample
evidence three persons ran down a staircase; evidence of a staircase itself was
cumulative. The trial court reasonably could have concluded the exhibits were confusing
or misleading for the reasons previously discussed. The trial court did not abuse its
discretion by excluding defense exhibits J and K under Evidence Code section 352.
Moreover, the application of ordinary rules of evidence, as here, did not impermissibly
infringe on appellant’s right to due process.




                                                19
5. The Prosecutor’s Jury Argument was Proper.
       During voir dire of the prospective jurors, appellant’s counsel presented an
anecdote related to aiding and abetting liability. He commented to the effect one time
when he was a child in school, a bully did something to him, and appellant’s counsel was
running home crying when he met his older brother. Appellant’s counsel told his older
brother what had happened. The older brother, indicating he would beat up the bully, left
appellant’s counsel, who was sobbing on a bench. The older brother then went to the
bully and beat him up. At trial, appellant’s counsel asked a prospective juror whether
appellant’s counsel was responsible for his older brother beating up the bully, where
appellant’s counsel had never encouraged or helped his older brother beat up the bully,
although appellant’s counsel secretly had wanted his older brother to beat up the bully.
The prospective juror replied no.
       During closing argument, the prosecutor commented, “Remember the hypothetical
that you were given during the voir dire process where it was about the bully and Tom
and Jerry [sic], and, . . . I didn’t know where they were going to go, and I was kind of
crying because I got beat up, and they went and beat up my bully? I’m not really
responsible. The defense – that wasn’t just an idle hypothetical.” Appellant’s counsel
stated, “Objection, commenting on the evidence.” (Sic.) The court overruled the
objection.
       The prosecutor argued the defense presented the anecdote to forecast the defense
position and cause the jury to think that if, in appellant’s case, the two other males were
shooters, and appellant did not know anything about the shooting, appellant was not
responsible. The prosecutor also argued the anecdote was contrary to the law and
evidence.
       The prosecutor later indicated the anecdote contradicted the defense position in
this case. The prosecutor commented, inter alia, that, in the anecdote, appellant’s counsel
did not accompany his older brother when the latter went to the bully. Appellant’s
counsel stated, “Objection, commenting on the evidence.” (Sic.) The court indicated it
would permit the prosecutor to comment on the anecdote but directed the prosecutor not


                                             20
to refer to the intent of appellant’s counsel in presenting the anecdote. The prosecutor
continued discussing the anecdote, noting, inter alia, that, just as appellant’s counsel in
the anecdote had a motive to harm the bully, appellant had a motive to kill Saravia. The
prosecutor commented however that, unlike appellant’s counsel in the anecdote, appellant
accompanied his accomplices to shoot and kill Saravia.
       Appellant claims the prosecutor’s jury argument was improper. We conclude
otherwise. Appellant failed to object on the ground of prosecutorial misconduct and
request a jury admonition with respect to the challenged comments, and a jury
admonition would have cured any harm. Appellant waived the issue of whether the
comments constituted misconduct. (Cf. Gionis, supra, 9 Cal.4th at p. 1215; Mincey,
supra, 2 Cal.4th at p. 471.)
       Moreover, we reject appellant’s claim on its merits. In People v. Chatman (2006)
38 Cal.4th 344, our Supreme Court rejected a defendant’s claim the prosecutor, during
jury argument, repeated certain improper argument. Chatman then stated the prosecutor
“merely commented on discrepancies between defense counsel’s opening statement and
defendant’s actual testimony, and pointed out gaps in defense counsel’s argument. ‘It is
no misconduct to pointedly highlight, as the prosecutor did here, the contradictions in a
defendant’s case.’ [Citation.]” (Id. at p. 385.)
       Similar reasoning applies here. There was no reasonable likelihood the
prosecutor’s comments were misconstrued or misapplied by the jury, or interpreted in an
improper or erroneous manner. (People v. Frye (1998) 18 Cal.4th 894, 970.) The
comments did not render appellant’s trial fundamentally unfair in violation of his right to
due process, nor did the prosecutor use deceptive or reprehensible methods to attempt to
persuade the court or jury. (See People v. Hill (1998) 17 Cal.4th 800, 819.) No
prosecutorial misconduct occurred.




                                             21
6. No Instructional Error Occurred.
       a. The Court Did Not Err in its Instructions Relating Perfect or Imperfect Self-
Defense to a Nonshooter.
       The court, using CALCRIM Nos. 500 and 520, instructed on homicide and
murder, respectively.14 The court, using CALCRIM No. 400, instructed on the general
principles of aiding and abetting, and, using CALCRIM No. 401, instructed on aiding and
abetting intended crimes.15 The court, using CALCRIM Nos. 505 and 571, instructed the
jury on perfect self-defense and imperfect self-defense, respectively.16 Finally, the court,


14
       CALCRIM No. 500, stated, in relevant part, “Homicide is the killing of one
human being by another. Murder is a type of homicide. The defendant is charged with
murder.” CALCRIM No. 520, stated, in relevant part, “The defendant is charged with
murder. [¶] To prove that the defendant is guilty of this crime, the People must prove
that: [¶] 1. The defendant committed an act that caused the death of another person;
[¶] 2. When the defendant acted, he had a state of mind called malice aforethought;
[¶] AND [¶] 3. He killed without lawful justification.”
15
        CALCRIM No. 400, stated, in relevant part, “A person may be guilty of a crime in
two ways. One, he or she may have directly committed the crime. I will call that person
the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly
committed the crime. A person is guilty of a crime whether he or she committed it
personally or aided and abetted the perpetrator.” CALCRIM No. 401, stated, in relevant
part, “To prove that the defendant is guilty of a crime based on aiding and abetting that
crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶]
2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before
or during the commission of the crime, the defendant intended to aid and abet the
perpetrator in committing the crime; [¶] AND [¶] 4. The defendant’s words or conduct
did in fact aid and abet the perpetrator’s commission of the crime.”
16
       CALCRIM No. 505 stated, in relevant part, “The defendant is not guilty of murder
if he was justified in killing someone in self-defense or defense of another. The
defendant acted in lawful self-defense or defense of another if: [¶] 1. The defendant
reasonably believed that he or someone else was in imminent danger of being killed or
suffering great bodily injury. [¶] 2. The defendant reasonably believed that the
immediate use of deadly 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.” CALCRIM No. 571 stated, in relevant part, “A killing that would
otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person
because he acted in imperfect self-defense or imperfect defense of another. [¶] . . . [¶]

                                             22
using CALCRIM No. 200, instructed the jury to “[p]ay careful attention to all of these
instructions and consider them together.” (Italics added.)
       Appellant claims CALCRIM No. 505, the instruction on perfect self-defense,
erroneously instructed that perfect self-defense applied to appellant only if he shot
Saravia but not if someone else shot him. He argues, inter alia, CALCRIM No. 505
“provided no basis upon which a jury could conclude that appellant Hernandez might be
found not guilty . . . if one of his companions acted in lawful . . . self-defense or defense
of another.” We reject appellant’s claim.
       Appellate review of the adequacy of instructions is based on whether the trial
court fully and fairly instructed on the applicable law. (People v. Ramos (2008)
163 Cal.App.4th 1082, 1088.) In determining whether error has been committed in
giving or not giving jury instructions, an appellate court must consider the instructions as
a whole and assume jurors are intelligent persons capable of understanding and
correlating all given instructions. (Ibid.) Moreover, “We credit jurors with . . . common
sense [citation] and do not assume that [this] virtue[] will abandon them when presented
with a court’s instructions.” (People v. Coddington (2000) 23 Cal.4th 529, 594.) The
ultimate question is whether there is a reasonable likelihood the jury applied the
challenged instruction in an impermissible manner. (People v. Hajek and Vo (2014)
58 Cal.4th 1144, 1220.)
       First, appellant is essentially arguing the instructions teach perfect self-defense
applies only to perpetrators, but appellant cites no case holding this. Second, there is no
dispute perfect self-defense may apply to a perpetrator. In particular, there is no dispute
the perpetrator who “killed” for purposes of murder and CALCRIM No. 520, can also be
the perpetrator of a “killing” for purposes of perfect self-defense and CALCRIM No.


The defendant acted in imperfect self-defense or imperfect defense of another if: [¶]
1. The defendant actually believed that he or someone else was in imminent danger of
being killed or suffering great bodily injury; [¶] AND [¶] 2. The defendant actually
believed that the immediate use of deadly force was necessary to defend against the
danger; [¶] BUT [¶] 3. At least one of those beliefs was unreasonable.”


                                              23
505, the two acts are the same, and the result is perfect self-defense can apply to the
perpetrator of a killing that would otherwise be murder under perpetrator liability.
       Similarly, we conclude the jury, considering the instructions as a whole and
employing common sense, reasonably would have understood an aider of a perpetrator
who “killed” for purposes of murder and CALCRIM No. 520, could also be the aider of
the perpetrator of a “killing” for purposes of perfect self-defense and CALCRIM No.
505, the two acts of aiding are the same, and the result is perfect self-defense could apply
to the aider of a perpetrator of a killing that would otherwise be murder under aiding and
abetting liability.
       If the case were otherwise, the anomalous result would be the aider, who did not
directly commit the act at issue, would bear criminal responsibility while the perpetrator,
who directly committed the act, bore no criminal responsibility, even though the actions
of aiding, and perpetrating, respectively, were otherwise equally justified. This would
lead to results contrary to common sense. For example, appellant’s argument, taken to its
logical conclusion, would mean that if a wife furnished a gun to her husband so he could
defend her from a man attempting to rape her, and her husband, defending her, shot and
killed the man, intending to kill him, the husband would escape scot-free from a murder
charge because perfect self-defense of another applied to him, but his wife would be sent
to prison because perfect self-defense of oneself did not apply to her.
       We realize that, as appellant observes, CALCRIM No. 401 refers to “aiding and
abetting that crime” (italics added) and refers to someone who aids and abets a “crime.”
However, appellant is construing those phrases as if they expressly state (which they do
not) that a defendant cannot aid a perpetrator’s killing for purposes of perfect self-
defense. We note in this regard CALCRIM No. 400 refers to aiding and abetting a
perpetrator (not aiding and abetting a crime).
       We hold the trial court did not err by giving CALCRIM No. 505 on perfect self-
defense, and there is no reasonable likelihood the jury believed perfect self-defense (or
perfect self-defense of another) applied to appellant only if he shot or killed Saravia but
not if someone else shot or killed him. Similar reasoning compels the conclusion the trial


                                             24
court did not err by giving CALCRIM No. 571 on imperfect self-defense. There is no
reasonable likelihood the jury believed imperfect self-defense (or imperfect self-defense
of another) applied to appellant only if he shot or killed Saravia but not if someone else
shot or killed him.17


17
        Appellant’s reliance on People v. Beltran (2013) 56 Cal.4th 935 (Beltran), is
misplaced. Beltran held a jury instruction concerning a defendant’s mental state was
proper. (Id. at pp. 954, 956-958. Beltran observed “the relevant mental state [was]
properly set out in [the instruction].” (Id. at p. 956) In dicta, Beltran also concluded that
potentially ambiguous comments during jury argument, including those by the
prosecutor, did not render the allegedly erroneous instruction prejudicial. (Id. at pp. 955-
957.) However, appellant states, “The error in Beltran was deemed to be one of state law
only. The court reasoned that the error was a failure to instruct fully ‘on all lesser
included offenses and theories thereof which are supported by the evidence,’ . . . .”
(Italics added.) Appellant misreads Beltran, which held no instructional error occurred.

       Moreover, in the present case, during the prosecutor’s rebuttal argument, the
prosecutor commented without objection at the time, “mind you self-defense is basically
saying I did it, but I had a lawful justification for doing it. That’s what self-defense is,
under the law, which is different than what the defense suggests to you in the opening.
[¶] The defense didn’t suggest to you yeah, I did it. The defense suggested to you in the
opening that the defendant wasn’t even involved, that he was just sitting on the stairs
waiting, that he had no idea of what was happening at that apartment.” Appellant, citing
a portion of the above comment, argues the prosecutor “[led] the jury to believe that only
the actual shooter was legally entitled to invoke self-defense.”

       To the extent appellant argues the prosecutor’s comment rendered the alleged
instructional error prejudicial, we reject the argument. The prosecutor’s comment,
reasonably construed, was to the effect that appellant was denying any criminal
involvement. The prosecutor’s comment, reasonably construed, was not to the effect that
(1) appellant was saying he was criminally involved as an aider and abettor or (2) self-
defense applied only to an actual shooter and not to an aider and abettor. None of the
comments of the trial court cited by appellant compel a contrary conclusion.

       To the extent appellant argues the prosecutor’s comment was, independently,
misconduct, the argument is unavailing. Appellant did not object on the ground of
prosecutorial misconduct and request a jury admonition with respect to the challenged
comment, and a jury admonition would have cured any harm. Appellant waived the issue
of whether the comment constituted misconduct. (Cf. Gionis, supra, 9 Cal.4th at p. 1215;
Mincey, supra, 2 Cal.4th at p. 471.) Appellant claims “Beltran . . . concluded that the
error was not forfeited by the failure of defense counsel to object to the prosecutor’s

                                             25
       Finally, the court, using CALCRIM No. 521, instructed on first degree murder
based on willful, deliberate, and premeditated murder, and based on lying-in-wait
murder. The instruction indicated lying in wait was a state of mind equivalent to
premeditation or deliberation. Lying-in-wait murder is the functional equivalent of
murder with premeditation, deliberation, and intent to kill. (People v. Russell (2010)
50 Cal.4th 1228, 1257; People v. Rodriguez (1998) 66 Cal.App.4th 157, 163.) The jury
found appellant committed first degree murder. A mind determined to murder based on
preexisting reflection is not a mind moved to kill by a belief, formed in immediate peril,
in the necessity to defend against that peril, an essential element of perfect and imperfect
self-defense. The jury, having found the murder was of the first degree, i.e., with
premeditation and deliberation, necessarily rejected any evidence appellant killed in
perfect or imperfect self-defense. The alleged instructional error regarding perfect or
imperfect self-defense was harmless under any conceivable standard. (Cf. People v.
Manriquez (2005) 37 Cal.4th 547, 582 (Manriquez); People v. Crandell (1988) 46 Cal.3d
833, 874; see People v. Lewis (2001) 25 Cal.4th 610, 646.)18




argument. (Id. at p. 954[,] fn. 15.)” However, in footnote 15 in Beltran, our Supreme
Court (1) did not hold one way or the other as to whether any error was forfeited, (2) did
not hold the instruction in that case was error, (3) stated the prosecutor’s comment to the
jury in that case “arguably” approached improper argument condemned in People v.
Najera (2006) 138 Cal.App.4th 212 (Najera), (4) did not hold whether the prosecutor’s
comment in Beltran was error or misconduct, and (5) in fact acknowledged that “Najera
concluded the defendant forfeited any prosecutorial misconduct claim by failing to
object.” (Beltran, at p. 955, fn. 15.)
18
        Appellant argued in his petition for rehearing that our above conclusion
constituted consideration of an unraised issue in violation of Government Code section
68081 because “respondent [did not] argue that if there was error as appellant alleged, the
error could be found to be harmless.” (Italics added.) We disagree. Appellant himself,
in his opening brief, proposed and briefed the issue of prejudice. Even if section 68081
could apply to our determination of an issue of prejudice (see Cal. Const., art. VI, § 13),
section 68081 is inapplicable here.


                                             26
       b. The Court Did Not Err in its Instruction on Perfect Self-Defense and
Reasonably Necessary Force.
       Appellant claims the trial court erred by instructing, using CALCRIM No. 505, to
the effect perfect self-defense (or perfect defense of another) required that “The
defendant used no more force than was reasonably necessary to defend against that
danger.” That is, he argues the third enumerated requirement in CALCRIM No. 505 (see
fn. 16, ante) is erroneous. We reject the claim.
       First, appellant cites no authority holding this requirement is erroneous. Second,
in People v. Humphrey (1996) 13 Cal.4th 1073 (Humphrey), a case in which the
defendant was charged with murder and convicted of voluntary manslaughter (id. at
pp. 1076, 1080-1081), our Supreme Court, discussing perfect self-defense, stated,
“Although the belief in the need to defend must be objectively reasonable, a jury must
consider what ‘would appear to be necessary to a reasonable person in a similar
situation and with similar knowledge . . . .’ [Citation.] It judges reasonableness ‘from
the point of view of a reasonable person in the position of defendant . . . .’ [Citation.]”
(Id. at pp. 1082-1083, italics added.)
       Humphrey continued, “To do this, it must consider all the ‘ “ ‘facts and
circumstances . . . in determining whether the defendant acted in a manner in which a
reasonable man would act in protecting his own life or bodily safety.’ ” ’ [Citation.]
As we stated long ago, ‘. . . a defendant is entitled to have a jury take into consideration
all the elements in the case which might be expected to operate on his mind . . . .’
[Citation.]” (Humphrey, supra, 113 Cal.4th at p. 1083.) We also note that in People v.
Pinholster (1992) 1 Cal.4th 865, a murder case (id. at p. 902), our Supreme Court stated,
“any right of self-defense is limited to the use of such force as is reasonable under the
circumstances.” (Id. at p. 966.)




                                             27
       The challenged language in CALCRIM No. 505 comports with Humphrey and
Pinholster which, of course, we must follow. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.) No instructional error occurred. Moreover, given the jury’s
finding the murder was of the first degree, the alleged instructional error was not
prejudicial. (Cf. Manriquez, supra, 37 Cal.4th at p. 582.)19
       c. The Court Did Not Err in its Instruction on Imperfect Self-Defense and a Belief
Force is Reasonably Necessary.
       Appellant claims if CALCRIM No. 505 properly requires for perfect self-defense
that “The defendant used no more force than was reasonably necessary to defend against
that danger,” the court should have instructed imperfect self-defense (discussed in
CALCRIM No. 571) applied if the defendant or his companions “had a good faith but
mistaken belief that he was using no more lethal force than was necessary.”
       The claim is unavailing. The instruction correctly stated the law and was
responsive to the evidence; therefore, by failing to request clarification or amplification
below, appellant waived the instructional issue he raises here. (Cf. People v. Nguyen
(2015) 61 Cal.4th 1015, 1051; People v. Palmer (2005) 133 Cal.App.4th 1141, 1156.)
       Even if the issue were not waived, appellant’s claim is without merit. First,
appellant cites no authority holding such an instruction is required. Second, appellant’s
argument erroneously conflates the more demanding principles of justification with less
demanding principles of mitigation, and thus adds to the latter principles a requirement
erroneously derived from the former principles. Third, “[t]he subjective elements of
[perfect] self-defense and imperfect self-defense are identical. Under each theory, the
appellant must actually believe in the need to defend himself against imminent peril to
life or great bodily injury.” (People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262,
19
       Appellant argued in his petition for rehearing that our above conclusion on the
issue of prejudice constituted consideration of an unraised issue in violation of
Government Code section 68081. We disagree. Appellant himself, in his opening brief,
proposed and briefed the issue of prejudice. Even if section 68081 could apply to our
determination of an issue of prejudice (see Cal. Const., art. VI, § 13), section 68081 is
inapplicable here.


                                             28
italics added; People v. Oropeza (2007) 151 Cal.App.4th 73, 82 [same].) Case law has
concluded CALCRIM No. 571 correctly states the law of imperfect self-defense. (See
People v. Lopez (2011) 199 Cal.App.4th 1297, 1306-1307; see generally, Humphrey,
supra, 13 Cal.4th at p. 1082 [actual belief in need to defend, plus fear of imminent
harm].) No further instruction on the subjective element of imperfect self-defense was
required. Finally, given appellant’s conviction for first degree murder, the alleged
instructional error was not prejudicial.20 (Cf. Manriquez, supra, 37 Cal.4th at p. 582.)21




20
       Appellant argued in his petition for rehearing that our above conclusion on the
issue of prejudice constituted consideration of an unraised issue in violation of
Government Code section 68081. We disagree. Appellant himself, in his opening brief,
proposed and briefed the issue of prejudice. Even if section 68081 could apply to our
determination of an issue of prejudice (see Cal. Const., art. VI, § 13), section 68081 is
inapplicable here.
21
       In light of our Discussion, we reject any claims in this case that appellant’s
constitutional rights were violated, he was denied effective assistance of counsel by any
failures of his trial counsel to pose appropriate objections as to any issues (see People v.
Slaughter (2002) 27 Cal.4th 1187, 1219), or cumulative prejudicial error occurred.


                                             29
                                     DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                KITCHING, J.

We concur:




                    EDMON, P. J.




                    EGERTON, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


                                           30
