IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
July 27, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JESSE RICARDO PASHENEE, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F09955)
The opinion of the court was delivered by: Blease , J.
P. v. Pashenee
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Jesse Pashenee of (count one) attempted murder, a felony (Pen. Code, §§ 664/187, subd. (a)), (count two) aggravated mayhem, a felony (Pen. Code, § 205), and (count three) assault with a deadly weapon or by means of force likely to produce great bodily injury, a felony.*fn1 (Pen. Code, § 245, subd. (a)(1).) The jury also found true the allegations that defendant personally used a deadly or dangerous weapon (a knife) during the commission of the crime (§ 12022, subd. (b)(1)), and that he personally inflicted great bodily injury upon the victim within the meaning of section 12022.7.
The charges stemmed from an incident in which the victim, Ramon Bravo, Sr., interceded when defendant and his companion were hitting a third young man. As Bravo walked away, defendant attacked him with a knife, slashing him in the head and face and stabbing him in the neck.
The trial court sentenced defendant to life in prison for count two, aggravated mayhem, plus a determinate term of one year for the related weapons enhancement. The sentences for the other convictions were stayed pursuant to section 654.
We shall conclude that the personal weapons use enhancement to count three must be stricken, but that the judgment should otherwise be affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On November 16, 2008, Ramon Bravo, Sr. and his son, Ramon Bravo, Jr., drove to Johnston Park, where they parked, got out of the car, and waited for some friends.*fn2 As they were waiting, Ramon Sr. saw defendant and a companion (later identified as Joe Gallegos) grab a third young man, who was alone, and start hitting him. Ramon Sr. was 44 years old at the time of trial, and defendant was 17 years old at the time of the offense. Ramon Sr. told defendant and Gallegos to leave the boy alone. They asked Ramon Sr. who he was, and he responded, "nobody." Ramon Sr. did not know the boy being attacked.
Ramon Sr. testified that he started walking back to his car when he noticed the back of his head felt hot. He did not immediately realize his head was bleeding. He turned around and defendant, who was right behind him, cut him from the bottom of his nose down past the corner of his mouth. Defendant cut the top of Ramon Sr.'s head, his neck, and his shoulder. In all, Ramon Sr. had about six wounds.
Ramon Sr., who was unarmed, managed to get back into his car, and Ramon Jr. drove him to a hospital. As a result of the multiple lacerations to the face, shoulder, scalp and ear, Ramon Sr. lost a considerable amount of blood. He was transfused with two units of blood, which equates to approximately a 20 percent blood loss.
During the investigation into the attack, information surfaced that Ramon Jr. was a validated member of the Sureno criminal street gang. Ramon Jr. had recognized defendant from when they had both been incarcerated at Boys' Ranch. Defendant was a Norteno, an enemy of the Surenos, and had given Ramon Jr. mean looks when they had been at Boys' Ranch.
Based on Ramon Jr.'s information, the police showed Ramon Sr. a photo lineup that included defendant's picture.*fn3 Ramon Sr. very quickly identified defendant as his attacker. Ramon Jr. identified Joe Gallegos as the person who had been with defendant during the attack on Ramon Sr.
Police went to the house in Elk Grove where defendant lived with his parents and searched his bedroom. They found several notebooks with defendant's name and Norteno graffiti in them. They found bullets and a cell phone. The banner on the phone contained Norteno gang writing. There was also a folder with several monikers (gang nicknames) written on it, including "Demon," which referred to defendant, "Fat Boy," which referred to David Gallegos, and "Savioso," which referred to Joe Gallegos. The Gallegoses were Nortenos, and identified with the Varrio Northside subset, or VNS.
Police also found several letters authored by defendant. In one, he wrote, "Im gon do iz smoke a chop 2 the neck get sum pussy then go kill skrapz[.]" "Scrap" is a derogatory term for a Sureno gang member. He also wrote, "Thatz all the fuck I won do. I ain't kilt me a skrap in hella long."
In another letter he wrote, "u know chill'n smoke'n blunts wit the homiez doin wat we do make'n show my hood scrap free." This meant he wanted to make sure there were no Surenos in his neighborhood. Another letter said, "I fired on this scrap last Sunday . . . ." Another said, "Im juss chill'n tho push'n line on these scrapz, me and my nigga 4rm the Diamonds beat up 2 skrapz, it wuz a 2 on 2, we wuz gett'n on they shit they can't fuck wit us." The Diamonds is another Norteno subset.
A few months after the attack, Ramon Jr. was sent back to Boys' Ranch. While he was there, Northern gang members told him they were going to get him back for snitching. They "snaked" him, which meant that they came at him from behind and hit him without him seeing them. They always threw gang signs at him and told him they were going to pay him back. All of this was started by Joe Gallegos, who had been with defendant during the attack on Ramon Sr., and who was at Boys' Ranch with Ramon Jr. He said that he was going to get Ramon Jr. and his dad. Once, when Ramon Sr. visited Ramon Jr. at Boys' Ranch, one of the inmates bumped into him and told him to watch his back.
Detective Brian Kinney from the Sacramento Police Department testified as a gang expert specializing in Hispanic street gangs. He testified regarding Norteno gang tattoos and other visual identifiers including clothing, hairstyles, and hand signals. He also testified that loyalty within the gang culture is second to none. He testified that the punishments for snitching range from verbal lashings for very minor offenses to threats, assaults, and death.
Defendant testified at trial. He admitted that he was in the park on the day of the attack with Joe Gallegos. He admitted he had a knife in his pocket, which he kept for protection. He admitted that both he and Joe Gallegos were Norteno gang members, and that they both had tattoos on their hands indicative of their gang membership.
Defendant testified that he had been drunk, and that he and Gallegos had been talking to a girl when they heard Ramon Sr. cursing in a loud voice. He then saw two other males armed with metal nunchuks. One of the other men was Ramon Jr. The other was Victor Bravo, a person defendant had never met before. Defendant testified that Ramon Sr. had a knife. Defendant claimed he only pulled out his knife because he wanted the men to back away. They did not back away, however, but started swinging their weapons. They struck defendant on the top of the head. Ramon Sr. cut him on his right hand in the webbing between his thumb and index finger. He dropped his knife, and after he picked it up he started swinging with his eyes closed "just wildly out of fear." He did not know at the time that he had struck anyone. After that, Joe Gallegos yanked him to the sidewalk, and they ran away.
Defendant argues the trial court committed error with three of its evidentiary rulings: (1) the admission of evidence defendant was involved in a gang; (2) the admission of defendant's letters and other writings found at his home, and (3) the admission of evidence that bullets were found in his room.
A. Gang Evidence and Gang-Related Writings
Defendant sought to exclude evidence of his gang membership and gang paraphernalia found in his room on the grounds that the evidence was not relevant, and that its prejudicial effect outweighed its probative value pursuant to Evidence Code section 352. In ruling on the defendant's in limine motion, the trial court found the evidence of defendant's gang membership was relevant to motive, and that it was "fairly central to establishing evidence of a motive[.]" Defendant now argues that the trial court abused its discretion in admitting this evidence, and that even if relevant, the evidence was so inflammatory that it denied his right to due process and a fair trial.
With regard to defendant's letters and diary entries, the prosecutor argued the items were relevant to defendant's specific intent to murder and maim. Defense counsel conceded there might be some relevance to intent, but argued the evidence was highly prejudicial.
The trial court has broad discretion to admit relevant evidence over an objection that the probative value of the evidence is outweighed by the danger of undue prejudice, confusion, or consumption of time. (People v. Lewis (2001) 26 Cal.4th 334, 374.) We will not disturb the trial court's ruling unless we conclude the trial court abused such discretion. (Ibid.)
Evidence of gang affiliation is admissible to prove motive and intent, as long as the probative value of the evidence is not outweighed by its prejudicial effect. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550; People v. Williams (1997) 16 Cal.4th 153, 193.) "'[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.' (People v. Lopez (1969) 1 Cal.App.3d 78, 85 [81 Cal.Rptr. 386]; see also People v. Martin (1994) 23 Cal.App.4th 76, 81 [28 Cal.Rptr.2d 660] [gang activity or membership admissible where 'important to the motive . . . even if prejudicial'].)" (People v. Gonzalez, supra, 126 Cal.App.4th at p. 1550.)
In this case evidence of defendant's gang affiliation was relevant to prove motive and intent. Defendant and Ramon Jr. were affiliated with rival gangs. Ramon Jr. was with his father, Ramon Sr. when Ramon Sr. was attacked. Ramon Jr. recognized defendant as a rival gang member, which tends by reasonable inference to show that defendant likewise recognized Ramon Jr. Thus, defendant's overreaction to Ramon Sr.'s interference could have been motivated by defendant's gang affiliation. We disagree with defendant's argument that since the attack was not planned, it could not have been gang-motivated. In fact, defendant's gang affiliation helps to explain why defendant reacted the way he did, even though the attack was not planned in advance.
Defendant's writings, which referred to killing "skraps" and making his neighborhood "skrap free" were relevant to prove intent. Defendant was charged with attempted murder and aggravated mayhem. A conviction on these counts required the prosecution to prove a specific intent to kill and a specific intent to permanently disable or disfigure, respectively. (People v. Perez (2010) 50 Cal.4th 222, 224; People v. Szadziewicz (2008) 161 Cal.App.4th 823, 831; § 205.)
Evidence is not prejudicial within the meaning of Evidence Code section 352 unless it "'"uniquely tends to evoke an emotional bias against a party as an individual"' [citations] or . . . it would cause the jury to '"'prejudg[e]' a person or cause on the basis of extraneous factors"'[citation.]." (People v. Cowan (2010) 50 Cal. 4th 401, 475.) There was no undue prejudice here. As shown, the evidence was relevant to motive and intent. Gang evidence weighed in on both sides of the case because both the defendant and the victim had ties to gangs. The gang evidence was not particularly heinous or gruesome. The gang evidence elicited of the gang expert did not touch on the criminal activities of gangs. Instead, the prosecutor focused on methods for validating gang members, visible identifiers for gang members, the definition of terms used by gang members, the importance of loyalty in the gang culture, the gang culture's punishment for snitching, and the identification of rival gangs. It is unlikely the gang evidence caused the jury to prejudge defendant on the basis of his gang affiliation or evoked an emotional bias against defendant unrelated to the facts of the offense. We conclude the trial court did not exceed its considerable discretion in admitting this evidence.*fn4
Defendant argues Ramon Jr. should not have been allowed to testify that he had been attacked and threatened at Boys' Ranch. He characterizes this testimony as "part of the gang evidence" and argues it was inadmissible to show consciousness of guilt in the absence of evidence connecting defendant to the intimidation, and was inadmissible on the issue of Ramon Jr.'s credibility because he was not an uncooperative witness (see Part IV, post).
Defendant did not object to the introduction of this evidence on the grounds he now claims. Defendant did move to exclude evidence he was a member of a criminal street gang, but Ramon Jr.'s testimony regarding intimidation by other residents at Boys' Ranch did not encompass testimony of defendant's gang membership. Defendant made no objection on this ground when Ramon Jr. testified, nor did he object that the testimony was inadmissible to the issue of Ramon Jr.'s credibility. Thus, the objection to this evidence on these grounds is not preserved for appeal. (Evid. Code, § 353.)
B. Admission of the Bullets
Defendant argues the trial court erred in admitting evidence that bullets were found in a drawer in his room. He claims the trial court abused its discretion under Evidence Code section 352 when it admitted the evidence of the bullets, and claims that the error violated his right to due process. Defendant objected to the admission of the bullets, but the grounds for the objection are not clear.
Since defendant attacked Ramon Sr. with a knife, the bullets were unrelated to the attack. "Evidence of possession of a weapon not used in the crime charged against a defendant leads logically only to an inference that defendant is the kind of person who surrounds himself with deadly weapons -- a fact of no relevant consequence to determination of the guilt or innocence of the defendant." (People v. Henderson (1976) 58 Cal.App.3d 349, 360; accord, People v. Archer (2000) 82 Cal.App.4th 1380, 1392-1393.) We must therefore conclude the trial court erred in allowing such evidence.
Nevertheless, we conclude the error in admitting the bullets was harmless because it is not reasonably probable that defendant would have obtained a more favorable result had the evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Hamlin (2009) 170 Cal.App.4th 1412, 1446.) There was no question that defendant was the perpetrator of the offense, inasmuch as he admitted it on the stand. The only issues were defendant's intent and whether he acted in self-defense. The evidence presented by the prosecution regarding intent and lack of self-defense was overwhelming. This consisted of the testimony of Ramon Sr. and Ramon Jr., as well as defendant's own writings.
The prosecutor did not emphasize the bullets in her argument to the jury. Her closing argument contained one brief statement about the bullets:
"It's not a coincidence that during that probation search of the defendant's home in his room that we found nine bullets. There's only one reason that you have bullets, and that's for a gun. You don't just have bullets for no reason."
Given the scant attention paid by the prosecution to the bullet evidence and the strong evidence of guilt, it is not reasonably probable defendant would have obtained a more favorable result had the evidence been excluded. The evidence was harmless.
Immunity Not Warranted for Gallegos
Joe Gallegos invoked his Fifth Amendment right not to testify. Defense counsel requested that the trial court grant Gallegos judicial immunity. Defendant made an offer of proof as to the testimony he expected Gallegos to give. The offer consisted of Gallegos's statement to the defense investigator.
In the statement, Gallegos admitted that he was present during the altercation. He stated that he and defendant were talking to each other when three men in their 30's got involved in their conversation. One of them said something that defendant interpreted as challenging him to a fight. Defendant asked them what was up, and one of the men yelled back, "You're a little punk ass bitch[.]" Gallegos said defendant took offense and was not going to stand for that. Defendant started toward the men, and would have fought them, but Gallegos grabbed him and pulled him back. Gallegos talked defendant out of fighting, but Ramon Sr. came across the street "looking for trouble." As Gallegos tried to hold defendant back, Ramon Sr. hit defendant first. As defendant and Ramon Sr. fought, the other two men with Ramon Sr. came over with nunchuks. They all jumped on defendant and were beating him. Gallegos pulled defendant away and they ran. Gallegos admitted that defendant told him he stabbed Ramon Sr., but that it was in self-defense.
The prosecutor indicated that if Gallegos testified, she intended to question him about Ramon Jr.'s statement that he heard Gallegos whistling for other Nortenos to come to their aid after the attack.
The trial court denied the defense request to grant judicial immunity. Defendant contends this was error. We disagree.
In People v. Hunter (1989) 49 Cal.3d 957, 973, the Supreme Court stated that "Courts of Appeal of this state have uniformly rejected the notion that a trial court has the inherent power . . . to confer use immunity upon a witness called by the defense. [Citations.] With few exceptions, federal and state judicial authority across the nation is to the same effect." In dicta, the court stated that "it is possible to hypothesize cases where a judicially conferred use immunity might possibly be necessary to vindicate a criminal defendant's rights to compulsory process and a fair trial[,]" but held it was not a question to be decided in the case before it, since the defendant's offer of proof fell short of the standards set forth in the federal circuit court case that had recognized such a right. (Id. at p. 974.)
The court stated that the one case recognizing a right to judicial immunity (Government of Virgin Islands v. Smith (3d Cir. 1980) 615 F.2d 964), held that the use of immunity must be clearly limited to cases where the proffered testimony is clearly exculpatory, is essential, and where there are no strong countervailing governmental interests against immunity. (People v. Hunter, supra, 49 Cal.3d at p. 974.) Immunity should be denied if the testimony is ambiguous, not clearly exculpatory, cumulative, or is found to relate only to the credibility of the government's witnesses. (Ibid.)
To the extent we assume there is judicial authority to grant immunity, we conclude that the trial court properly denied defendant's request. Gallegos's testimony would have been cumulative of defendant's testimony, and because of their friendship, gang ties, and complicity in the attack, would not have lent credibility to defendant's story. Additionally, Gallegos's statement was not clearly exculpatory. Parts of his statement could be construed to mean that defendant was the aggressor in the attack (defendant took offense and was not going to stand for the Bravos' slurs, and would have fought them had Gallegos not held him back), a fact that would have weakened defendant's claim that he acted in self defense. Finally, the government had a strong interest in not granting immunity to someone who aided in the commission of the crime.
Cross-Examination of Gallegos
Defendant also argued that if Gallegos were not granted immunity, as an alternative the trial court should have excluded the prosecutor's cross-examination of Gallegos on the subject of Gallegos whistling for the help of other Norteno members after the attack on Ramon Sr. This would have allowed Gallegos to testify without incriminating himself. The trial court opined that even if it were to restrict the prosecutor's cross-examination of Gallegos, the information could still come before the jury through Ramon Jr.'s statement.
Defendant argues the trial court violated his Fifth and Fourteenth Amendment rights to due process and his Sixth Amendment right to present a defense by failing to agree to limit the prosecution's cross-examination of Gallegos, thereby obviating the need to grant Gallegos immunity.
We reject defendant's claims that he was deprived of his constitutional rights to present a defense and to due process by virtue of the trial court's refusal to curtail the prosecution's cross-examination of Gallegos.
The trial court is given broad discretion in controlling the scope of cross-examination. (People v. Lancaster (2007) 41 Cal.4th 50, 102.) Only a manifest abuse of discretion warrants reversal. (People v. Adan (2000) 77 Cal.App.4th 390, 394.)
We conclude that the trial court's refusal to prevent certain cross-examination of Gallegos, which resulted in the exclusion of Gallegos's entire testimony, did not rise to the level of an unconstitutional deprivation of defendant's right to present a defense. "Although completely excluding evidence of an accused's defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense. [Citation.]" (People v. Fudge (1994) 7 Cal.4th 1075, 1103.) Since, "'there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.' [Citation.] . . . . the proper standard of review is that announced in People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243], and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension [Citation.]." (Ibid.)
Defendant would no doubt argue Gallegos's testimony was not on a minor or subsidiary point. However, the omission of Gallegos's testimony did not prevent defendant from presenting his defense. Had Gallegos testified consistent with the offer of proof, he would have duplicated the testimony of defendant on the stand. As evidence supporting defendant's credibility, Gallegos's testimony would have had little value because of his bias as defendant's friend and fellow gang member. Consequently, it is not reasonably probable that defendant would have obtained a more favorable verdict had the jury heard Gallegos's testimony.
No Duty to Instruct With CALCRIM No. 371
Defendant argues the trial court had a sua sponte duty to instruct the jury with CALCRIM No. 371, alternative C as follows:
"If someone other than the defendant tried to create false evidence, provide false testimony, or conceal or destroy evidence, that conduct may show the defendant was aware of (his/her) guilt, but only if the defendant was present and knew about that conduct, or, if not present, authorized the other person's actions. It is up to you to decide the meaning and importance of this evidence. However, evidence of such conduct cannot prove guilt by itself."
Defendant concedes there is no case law requiring the trial court to give the instruction sua sponte, but argues a duty exists nonetheless. He argues there was no evidence that he authorized or knew about the threats to Ramon Jr. while he was incarcerated, or to Ramon Sr. when he visited his son. He claims that the evidence of intimidation was not admissible to show his consciousness of guilt without some evidence he authorized the intimidation. He argues the jury should have been instructed that it could not consider the evidence as consciousness of guilt.
The trial court's duty with respect to sua sponte instructions is to "'"instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.]'" (People v. Breverman (1998) 19 Cal.4th 142, 154.)
Defense counsel did not object either to Ramon Jr.'s testimony regarding the intimidation toward him when he was incarcerated, or to Ramon Sr.'s testimony of the intimidation toward him when he visited his son at Boys' Ranch. The prosecutor never argued that the intimidation was evidence of consciousness of guilt. Instead the prosecutor argued it reflected on the Bravos' credibility. Additionally, Ramon Jr. did not appear to testify and had to be arrested and brought to court. The evidence was relevant to show why Ramon Jr. was reluctant to testify, and to rebut the defendant's argument that he did not appear because he did not want to come to court and lie.
There was no need for the trial court to give an instruction regarding consciousness of guilt sua sponte because it was not a principle of law closely and openly connected with the facts before the court and necessary for the jury's understanding of the case.
CALCRIM No. 3471 Properly Given
The trial court instructed the jury with CALCRIM No. 3471 as follows:
"A person who engages in mutual combat or who is the initial aggressor has the right to self-defense only if:
1. He actually and in good faith tries to stop fighting;
2. He indicates by word or by conduct to his opponent in a way that a reasonable person would understand that he wants to stop fighting and that he has stopped fighting;
3. He gives his opponent a chance to stop fighting.
If a person meets these requirements he then has a right to self-defense if the opponent continues to fight.
A 'fight' is mutual combat when it continues by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim of self-defense arose.
If you decide the defendant started the fight using non-deadly force and the opponent responded with sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting."
Defendant claims this instruction was error. Citing People v. Ross (2007) 155 Cal.App.4th 1033, 1043-1044, he argues the term "mutual combat" in the context of self-defense law means that blows were exchanged pursuant to a prearranged agreement to fight. He argues that without some evidence of a prearranged intent to fight, the court erred in giving the mutual combat instruction.
We disagree for three reasons. First, the instruction is correctly given where there is evidence defendant was the aggressor. Hence, the instruction refers to situations in which the defendant engages in mutual combat or "is the initial aggressor[.]" In this case defendant relied on a theory of self-defense, and there was evidence from the victim and the victim's son that defendant was the initial aggressor.
Second, during the jury instruction conference, the trial court opined, "there is some evidence that [defendant] walked towards [the victim and his cohorts] even when he saw them with the nunchuks, and he pulled his knife out and everything. [¶] I think this would apply because a jury could infer that they both walked into this, you know, like gladiators. I mean, they knew they were getting into a fight." The prosecutor agreed with this assessment.
"Mutual combat" includes an express or implied agreement to fight. (People v. Ross, supra, 155 Cal.App.4th at pp. 1046-1047.) "The agreement need not have all the characteristics of a legally binding contract; indeed, it necessarily lacks at least one such characteristic: a lawful object. But there must be evidence from which the jury could reasonably find that both combatants actually consented or intended to fight before the claimed occasion for self-defense arose." (Id. at p. 1047.) The non-verbal cues and posturing to which defendant testified, i.e., the brandishing of weapons as the parties approached each other prior to delivering any blows, could have been found by the jury to constitute mutual combat.
Third, assuming there was no evidence in the record to support a theory of mutual combat, the error is harmless. While the mutual combat portion of the instruction may have been inapplicable, although correct in law, "giving an irrelevant or inapplicable instruction is generally '"only a technical error which does not constitute ground for reversal."' [Citation.]" (People v. Cross (2008) 45 Cal.4th 58, 67.) When the court gives a correct instruction that has no application to the facts of the case, the error "does not appear to be of federal constitutional dimension. . . . [¶] The error is therefore one of state law subject to the traditional Watson test (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]) applicable to such error. . . . Under Watson, reversal is required if it is reasonably probable the result would have been more favorable to the defendant had the error not occurred. [Citation.]" (People v. Guiton (1993) 4 Cal.4th 1116, 1129, 1130.)
Unlike the instruction in People v. Ross, supra, upon which defendant relies, the instruction here contained the legal definition of the term "mutual combat." The jury would not have believed that the mutual combat portion of the instruction applied to a simple physical confrontation involving a reciprocal exchange of blows absent an agreement to fight.
The jury was also instructed pursuant to CALCRIM No. 200:
"Some words or phrases used during this trial have legal meanings that are different from their meanings in everyday use. These words and phrases will be specifically defined in these instructions. Please be sure to listen carefully and follow the definitions that I give you. Words and phrases not specifically defined in these instructions are to be applied using their ordinary everyday meanings.
Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts.
After you have decided what the facts are, follow the instructions that do apply to the facts as you find them."
We presume that the jury heeded the directive of CALCRIM No. 200 and disregarded any inapplicable portions of CALCRIM No. 3471. (See People v. Chavez (1958) 50 Cal.2d 778, 790.) Thus, any error in giving the mutual combat portions of CALCRIM No. 3471 was harmless.
Enhancement to Count Three to be Stricken
The jury convicted defendant on count three of assault with a deadly weapon pursuant to section 245, subdivision (a)(1) and found true the allegation of the enhancement to that count that defendant used a deadly weapon during the commission of the crime. (§ 12022, subd. (b)(1).) The trial court stayed the enhancement pursuant to section 654.
Defendant argues the enhancement must be stricken pursuant to this court's decision in People v. McGee (1993) 15 Cal.App.4th 107 (McGee). The People concede the issue.
In McGee, supra, this court acknowledged that a deadly weapon use enhancement cannot be imposed when use of a deadly weapon is an element of the offense. (15 Cal.App.4th at p. 113.) McGee, supra, held that where a defendant assaults a "victim by means of force likely to produce great bodily injury in violation of section 245, subdivision (a)(1) by stabbing the victim with a deadly weapon. . . . defendant's use of the deadly weapon was not an additional factor, above and beyond the elements of section 245, subdivision (a)(1) which would permit imposition of a weapon use enhancement under section 12022, subdivision (b). Accordingly, the exception to the imposition of a weapon use enhancement set forth in section 12022, subdivision (b) applies." (Id. at p. 116.)
We shall strike the enhancement to count three.
Defendant contends the combined errors denied him a fair trial in violation of due process. We have concluded the only evidentiary error was the admission of the bullets, and that error was harmless. The single sentencing error will be corrected by striking the enhancement to count three. Neither of these errors increased the impact of the other, and their cumulative impact did not deprive defendant of a fair trial or the right to due process.
The section 12022, subdivision (b)(1) use enhancement to count three is stricken. As modified, the judgment is affirmed. The trial court is directed to prepare and forward the amended abstract of judgment reflecting the foregoing modification to the Department of Corrections and Rehabilitation.
RAYE , P.J.