(Super. Ct. No. 09F04542)
The opinion of the court was delivered by: Hoch , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Simmering tension between neighbors living in upstairs and downstairs apartments erupted into physical confrontations on three occasions. The third altercation occurred on the evening of May 30, 2009, when defendant Albert Joshua Hatch punched Dan Lopez in the head and chest. Lopez fell backward and hit his head on the ground, thereby suffering injuries that included a temporal bone skull fracture. Defendant also scuffled with others associated with the upstairs apartment.
Defendant claimed he acted in self defense, but a jury convicted him of battery with serious bodily injury (Pen. Code, § 243, subd. (d))*fn1 and misdemeanor assault (§ 240). Defendant admitted a prior serious felony conviction. The trial court sentenced him to 11 years in state prison for the battery and prior strike conviction. The court denied probation on the misdemeanor conviction but imposed no additional jail time.
On appeal, defendant contends (1) the trial court erred by excluding evidence of the fight that occurred between the upstairs and downstairs occupants a few hours prior to defendant's altercation with the victim, (2) the trial court should have instructed the jury on defense of another based on defendant's intent to protect his girlfriend's son, and (3) cumulative prejudice resulting from the claimed errors requires reversal.
We conclude that evidence of the earlier confrontation between the two sets of neighbors should have been admitted, but we find the error to be harmless. We also conclude that the trial court did not err in refusing to instruct on defense of another for lack of imminent danger to the person that defendant purported to protect. Finding only a single non-prejudicial error, we reject defendant's cumulative prejudice argument. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
At the outset of trial, the prosecution and defense stipulated: "Cindy Ronquillo rented the upstairs apartment located at 2510 27th Street. . . . [¶] . . . Karen Hendrix lived at that apartment [downstairs] with her son, Jonathon Poppy Vegas [(Poppy)]. Karen Hendrix was in a dating relationship with [defendant] on May 30th, 2009. [Defendant] regularly would visit Hendrix at her apartment.
"The upstairs occupants and the downstairs occupants at 2510 27th Street did not get along as of May 30th, 2009. There had been several disagreements between the parties regarding noise and parking issues."
At approximately 8:00 p.m. on May 30, 2009, the two sets of neighbors arrived at their apartment complex at nearly the same time. The upstairs neighbor, Ronquillo, arrived in one car with her boyfriend, Dan Lopez. Ronquillo's brother and sister-in-law, Kirk Allen and Davida Trejo, accompanied them in another car. While Lopez was still parking the car in the apartment complex parking lot, Ronquillo noticed Poppy's car pull into the driveway "pretty fast." Defendant was the driver, and Poppy and his girlfriend, P.M., were passengers. Defendant parked next to the door of Hendrix's downstairs apartment. P.M. entered Hendrix's apartment, but Poppy lingered on the porch right in front of the entrance door.
Defendant got out of the car and started "talking crap" to Lopez. Defendant turned his focus on Ronquillo, who saw that he was "very angry" at her. Defendant and Ronquillo both launched into verbal tirades. As defendant followed Ronquillo, he repeatedly told her, "You ain't talking no shit, are you, bitch?" Defendant was "raising his voice. He was hitting himself. He tore off his shirt. He was . . . a little raging."
Lopez was scared and hurried to unlock the back door of Ronquillo's apartment. Meanwhile, defendant "was getting madder and madder," seemingly ready to hit Ronquillo. Defendant ripped off his shirt "as if he was going to fight" with Ronquillo.
Lopez headed down the stairs and stood between Ronquillo and defendant. Lopez did not have his fists clenched or appear ready to fight. He did not approach defendant in an aggressive manner. Lopez asked, "[W]hat are you going to do, Man?" Defendant responded by punching Lopez in the face. As Lopez was falling backward, defendant "hit him in the chest really hard."
Lopez hit his head on the concrete driveway and lost consciousness. Lopez convulsed on the ground. As Ronquillo tried to check on Lopez, defendant punched her in the chest and she fell backward. Allen jumped onto defendant, and they began to wrestle. Defendant yelled to Poppy for help. Ronquillo testified that Poppy was not "anywhere in this vicinity up until [defendant] yells for Poppy." Allen testified that he did not see Poppy anywhere before defendant yelled for help.
When Poppy emerged from the downstairs apartment, he was wielding a golf club. Poppy lost his grip on the golf club, which went flying and hit Ronquillo on the back of her arm. Poppy ran over to Allen and defendant. Allen picked up a can of paint and started swinging it at defendant and Poppy. The lid came off and paint went "everywhere." Ronquillo yelled for Trejo to call 911.
Defendant secured Allen in a headlock, and Allen bit defendant four or five times in the stomach. Poppy hit Allen in the head and kneed him in the face three times. That "really knocked [Allen] out" and he fell to the ground. Defendant and Poppy ran away.
Allen got up and wanted to leave immediately with Ronquillo. Lopez was still unconscious and convulsing. Ronquillo and Trejo refused to leave Lopez, saying that they would stay until the police arrived. Allen got in his car and drove away. After a few minutes, Allen decided to return to Ronquillo, Trejo, and Lopez. On his way back, he saw defendant standing on the sidewalk and swinging a golf club. Defendant told Allen, "I'm going to get you. I know where you work." The threat scared Allen.
When a police helicopter arrived, defendant and Poppy left the scene. Lopez regained consciousness and began vomiting. He was transported to the hospital for treatment. Lopez suffered a temporal bone skull fracture and other injuries consistent with blunt force trauma. His treating physician considered the injuries sufficiently serious to admit Lopez into the intensive care unit.
Allen suffered chipped teeth, and his teeth were knocked so out of alignment that he could chew only soft fruit for a month. Allen also sustained bruises on his head, knee, legs, chin, and elbow. An officer who arrived on the scene observed blood coming from Allen's mouth.
Hendrix testified for the defense and related an incident that occurred approximately two weeks before May 30, 2009. Lopez came to the downstairs apartment and began yelling. Hendrix went outside with defendant and Poppy. Lopez yelled at them that he was going to smash Poppy's car with his car. Lopez continued "[t]hat he'd fight anybody out here. He didn't care who he had to fight. He would kick anybody's ass. And he was just ranting and raving." During his tirade, Lopez took off his jacket. Lopez and defendant "squared up like they were going to fight," but Hendrix jumped in the middle and separated them. Defendant told Lopez, "[Y]ou guys, this is enough. This is -- you know, this is uncalled for." Hendrix, Poppy, and defendant went back inside their apartment.
Hendrix was not present during the altercation between the upstairs and downstairs neighbors on the evening of May 30, 2009.
Testifying on his own behalf, defendant was questioned about the altercation two weeks prior to May 30, 2009, when Lopez came to the downstairs apartment about the parking issue. Defendant recounted that Lopez and Poppy got into a shouting match. Hendrix attempted to get in between Lopez and Poppy. Defendant did not know whether Lopez was going to hit Hendrix, so he "got in between them and broke it up." In doing so, defendant ...