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The People v. Albert Joshua Hatch

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


October 7, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ALBERT JOSHUA HATCH, DEFENDANT AND APPELLANT.

(Super. Ct. No. 09F04542)

The opinion of the court was delivered by: Hoch , J.

P. v. Hatch

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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

Stipulation

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."

Prosecution Evidence

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.

Defense Evidence

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 punched Lopez once because he "had to, like, separate them." The record does not indicate that Lopez hit back.

Lopez told defendant that he "can get it, too." Defendant understood this to mean that Lopez could "call somebody over." Defense counsel then questioned defendant as follows:

"Q. . . . [Y]ou are quite a bit bigger than [] Lopez. [¶] Right?

"A. Yes, Ma'am.

"Q. Would it [be] fair to say that that was the reason why you weren't scared of him?

"A. Yes."

Defendant considered the encounter "[j]ust a shouting match," and thought Lopez "wasn't really no threat."

On the evening of May 30, 2009, defendant was hanging out with Hendrix, Poppy, and P.M. at the house belonging to Hendrix's brother. Defendant decided to accompany Poppy and P.M. back to Hendrix's apartment where Poppy and P.M. planned to retrieve some clothing. Poppy drove his car and cautiously pulled into the driveway because Ronquillo and others were in the parking lot. Defendant was "[k]ind of like worried a little that something might happen" but did not intend to fight anyone because he was with "those two kids." At the time, Poppy was 16 years old and P.M. was 14 years old.

After they parked, defendant got out of the car and took off his flannel work shirt. Defendant still had a white tank top on underneath his work shirt. Ronquillo and Lopez walked beside Poppy and P.M., with defendant following them. Ronquillo called Poppy a "Punk ass." Poppy was going to stop, but defendant urged him to keep walking to the apartment. Defendant told Ronquillo to "leave it alone," and Lopez "started to go off" on defendant. Ronquillo then directed a string of invective against defendant. Defendant felt frustrated and "cussed back." Poppy stopped walking and turned toward them. Poppy did not enter the downstairs apartment.

Lopez walked up the stairs to unlock the upstairs apartment. Defendant argued with Ronquillo and called her a "Fat Bitch." Defendant was mad. Poppy was "off to, like, the left of" defendant near the "porch-door area."

Lopez came down the stairs, his face red and his fists balled at his side. Walking very fast, Lopez came over to defendant and Ronquillo. Defendant said, "Don't walk up on me." Defendant stuck out his hand and said, "Dude, don't even try." Lopez paused, then lunged toward defendant. Lopez was in a fighting stance with his fists up. As Lopez cocked his right hand to throw a punch, defendant hit him "pretty hard" in the jaw area. Defendant struck Lopez because he thought Lopez and Allen "were going to try to jump me."

Ronquillo then hit defendant in the face and on the back of his head. Defendant was unable to hit her back because Allen was already on top of him. Allen bit defendant in the neck and on his stomach. Trejo joined in by hitting defendant repeatedly. Defendant called to Poppy for help in getting Allen off of him. Poppy ran over and kicked Allen. Everyone let go of defendant. Allen picked up a paint can and tried to hit defendant with it. Poppy grabbed Allen in a "bear hug," and tried to throw him to the ground. The paint can opened and spilled on the ground.

Poppy and defendant began to walk away quickly. Allen pulled out a knife or box cutter and stabbed defendant in the side. Defendant swatted Allen's arm away, and prevented the wound from being very deep. Defendant ran into the downstairs apartment and grabbed an aluminum bat to defend himself. Allen ran away. Poppy grabbed some clothes and his phone charger, and Poppy, P.M., and defendant left the apartment. On the way out, defendant retrieved his flannel shirt from where it was hanging on a wooden banister.

DISCUSSION

I

Exclusion of Evidence of an Early Afternoon Fight Between the Upstairs and Downstairs Neighbors

Defendant contends the trial court erroneously excluded evidence regarding a fight between the upstairs and downstairs neighbors that occurred a few hours before the altercation on the evening of May 30, 2009. Defendant argues that the excluded evidence concerned a physical confrontation involving Lopez that explained why defendant wanted to accompany Poppy and P.M. back to the apartment to retrieve their clothes. The excluded evidence, defendant claims, also was relevant insofar as it affected his state of mind when he encountered Ronquillo, Lopez, and others associated in the upstairs apartment. Defendant also assigns error to the trial court's exclusion of evidence regarding Ronquillo's brandishing of a gun after defendant's fight with Lopez and wrestling with Allen.

We agree that the trial court should have allowed the defense to introduce evidence of the earlier fight but conclude that the error was harmless. We reject defendant's argument that the trial court erred in excluding evidence that Ronquillo brandished a firearm.

A. The Early Afternoon Fight on May 30, 2009

Prior to trial, the prosecution moved to exclude evidence of the fight between the upstairs and downstairs neighbors that occurred around 1:00 p.m. on May 30, 2009. As the prosecution noted, defendant was not present during that fight.

The defense opposed the motion and moved to include the evidence of the earlier fight and Ronquillo's brandishing of a firearm as defendant was leaving the apartment complex after the fight with Lopez and Allen on the evening of May 30. Relying on evidence from the preliminary hearing, the defense sought to introduce the following evidence:

On the morning of May 30, 2009, Hendrix received a panicked telephone call from Poppy. Poppy implored his mother to come home immediately because Ronquillo was "calling a bunch of people to come beat [his] ass." Hendrix raced home from work. About two minutes after she entered her apartment, there were "a bunch of people" who where "yelling and screaming and cussing, . . . yelling at [Poppy], drawing him out . . . ." Among them was Tanda, a friend of Ronquillo. Tanda had brought "two or three grown men and like two or three teenage kids" with her to beat up Poppy. Hendrix was very intimidated.

Tanda yelled at Hendrix and challenged her to fight. Hendrix declined to fight, stating, "This problem's between me and [Ronquillo] you know." As Hendrix turned to tell Poppy to stay in the apartment, Tanda grabbed her, pulled up her shirt, and scratched her neck. Hendrix then scratched Tanda on her face.

Poppy called Hendrix's brother on the telephone for help. Hendrix's brother arrived 15 minutes after the scuffle between Hendrix and Tanda. Hendrix's brother found Lopez and hit him twice -- once in the head and once in the chest.

Poppy testified that the events on the morning of May 30, 2009, left him afraid of Lopez and everyone else associated with the upstairs apartment. Hendrix decided that it would be best if Poppy stayed somewhere away from their apartment for a while.

Although defendant was not present during the events on the morning of May 30, Poppy and Hendrix separately told him about it within a few hours.

The trial court set forth its reasons for excluding the evidence of the early afternoon fight as follows:

"This is a simple case it seems to me, and we're making it everything but simple, and that does not serve justice at all. It confuses the issues, it consumes a tremendous amount of time, and I think it tends to confuse the jury. With that, I'm going back to [the] People's [motion in limine to exclude evidence of fight in the early afternoon on May 30, 2009], and I'm going to grant it. I'm going to grant it on the grounds that -- now having said that I will also consider doing some kind of stipulation, but given that [defendant] was never made the subject of any threat of any kind of assault or bodily injury as a result -- during the course of that fight or afterwards . . . .

"[¶] . . . [¶]

"When we put section -- Evidence Code Section 352 on top of that, it just seems to me that we are talking about a tremendous expenditure of time, consumption of time and a confusion of issues and misleading the jury. I just can't see why we would go there. This case is a he said, he said, she said, he said about people upstairs, people downstairs, and a fight that ensued directly thereafter, so I don't see any point in bringing in all of this other stuff that happened that involved people for the most part other than [defendant] certainly the day of the event."

The court also excluded evidence that "[a]t some point, [Ronquillo] goes up and grabs a gun and comes downstairs, and she's waiving [sic] it around." Defense counsel sought to introduce the evidence based on the expectation that the "[p]rosecution is going to request the defendant's flight instruction . . . . Knowing that somebody has got a gun there would definitely have an impact as to why they left the scene." In excluding the evidence, the trial court stated:

"The gun, everything you've told me had nothing whatsoever to do with [defendant's conduct] and when she struck the victim. It had nothing whatsoever to do with any of that. It happened after that. [¶] . . . [¶] With that, . . . I think it's irrelevant, what happened sometime after the events in question here, and especially given the fact that the People are withdrawing the consciousness of guilt and fleeing issue. [¶] . . . [¶] It is certainly violative of Evidence Code Section 352. We are talking about a substantial consumption of time to deal with an issue that I don't even know that is tangential to this case. It's a separate matter."

B. Admissibility of Early Afternoon Fight

As the California Supreme Court has explained, "'A person claiming self-defense is required to "prove his own frame of mind," and in so doing is "entitled to corroborate his testimony that he was in fear for his life by proving the reasonableness of such fear." [Citation.]'" (People v. Minifie (1996) 13 Cal.4th 1055, 1065.) Thus, a criminal defendant is entitled to have the jury "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.'"' (People v. Moore (1954) 43 Cal.2d 517, 528, italics in original.) 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. . . .' (People v. Smith (1907) 151 Cal. 619, 628.)" (People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083.)

"Whether defendant has personally perceived threats or has been informed of threats by others is irrelevant so long as his belief in the danger represented by those threats is both reasonable and honest." (People v. Pena (1984) 151 Cal.App.3d 462, 475.) Nonetheless, a defendant must have been actually aware of the dangerous acts or threats in order to introduce evidence tending to show that the victim was dangerous or had made prior threats. (People v. Tafoya (2007) 42 Cal.4th 147, 165; see also People v. Minifie, supra, 13 Cal.4th at pp. 1066-1068.)

Here, the evidence of the early afternoon fight on May 30, 2009, proffered by the defense did lend support to defendant's claim of self defense against Lopez and others associated with the upstairs apartment. (Evid. Code, §§ 210 [defining relevant evidence], 351 ["Except as otherwise provided by statute, all relevant evidence is admissible"].) The evidence was relevant to defendant's state of mind as he saw several people associated with the upstairs apartment arriving at the same place as defendant and Poppy. Only a few hours earlier, Lopez and others associated with the upstairs apartment had been involved in an altercation that began with a quest to "beat up" Poppy. Lopez's involvement in that incident had some bearing on defendant's claim that he saw Lopez's approach as an imminent attack.

The incident of a few hours earlier explained why defendant accompanied Poppy and P.M. back to the downstairs apartment, and informed defendant's perception of the group of people associated with the upstairs apartment. The earlier incident also would have given context to defendant's statement that he was "[k]ind of like worried a little that something might happen" when he accompanied Poppy and P.M. back to the apartment. "Reasonableness is judged by how the situation appeared to the defendant . . . ." (People v. Minifie, supra, 13 Cal.4th at p. 1068.) However, the trial court's exclusion of evidence of the altercation a few hours earlier prevented defendant from fully explaining why he was with Poppy and P.M. and why he feared something was going to happen.

The evidence of the early afternoon altercation should not have been excluded under Evidence Code section 352. Although "[r]ulings under Evidence Code section 352 come within the trial court's discretion and will not be overturned absent an abuse of that discretion" (People v. Minifie, supra, 13 Cal.4th at p. 1070), the necessity of allowing defendant to present relevant evidence directly bearing on his defense may constrain the discretion to exclude evidence as cumulative. (Id. at pp. 1070-1071.) As our high court has noted, a defendant's "state of mind is a critical issue" when a claim of self defense is asserted so that "he may explain his action in light of his knowledge concerning the victim." (People v. Humphrey, supra, 13 Cal.4th at p. 1094.)

The evidence concerning the early afternoon fight would not have necessitated an undue consumption of time or confused the issues. (Evid. Code, § 352; see also People v. Minifie, supra, 13 Cal.4th at pp. 1068-1069.) As the testimony given at the preliminary hearing demonstrated, the circumstances surrounding the early afternoon fight were not complex and did not require much time to introduce into evidence. The jury already heard about the fight that occurred two weeks prior to the events on May 30, 2009. The early afternoon fight on May 30, 2009, would not have been any more confusing or consumed much more time than the evidence concerning the altercation that was admitted. The trial court should have also admitted the evidence concerning the early afternoon fight.

The Attorney General argues that the trial court did not abuse its discretion in excluding the evidence of the early afternoon fight because the trial court "reviewed the issue on no less than three occasions, read considerable case law cited by [defendant] in support of his position, and provided a detailed ruling with specific factual context in support of each finding that allowing such evidence would necessitate an undue consumption of time, result in a confusion of the issues, and mislead the jury." We agree that the trial court diligently and conscientiously considered the issue. However, the amount of effort and care expended in ruling on an evidentiary issue does not govern whether the trial court erred as a matter of law in excluding evidence. (See People v. Minifie, supra, 13 Cal.4th at pp. 1068-1070; People v. Humphrey, supra, 13 Cal.4th at p. 1094.) Here, the proffered evidence was directly relevant to defendant's claim of self defense and should have been admitted.

However, the trial court did not err in excluding evidence that Ronquillo brandished a gun after the defendant fought with Lopez and others associated with the upstairs apartment. The prosecution did not request a consciousness of flight instruction, and defendant's reason for leaving the scene of the fight had no relevance to whether he acted in self defense or as the initial aggressor. That Ronquillo displayed a firearm after the fight did not inform whether defendant believed that he had been in imminent danger when he hit Lopez. Accordingly, the trial court did not err in excluding evidence that Ronquillo went upstairs to retrieve a gun after defendant fought with Lopez and others.

C. Any Prejudice Resulting from Exclusion of

Early Afternoon Fight

Our conclusion that the evidence of the early afternoon fight should have been admitted compels reversal of the judgment only if the error was prejudicial. "When the reviewing court applying state law finds an erroneous exclusion of defense evidence, the usual standard of review for state law error applies: the court must reverse only if it also finds a reasonable probability the error affected the verdict adversely to defendant. (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103; People v. Cudjo (1993) 6 Cal.4th 585, 611 [error in excluding evidence of third party culpability]; People v. Watson (1956) 46 Cal.2d 818, 836,; Evid. Code, § 354.)" (People v. Humphrey, supra, 13 Cal.4th at p. 1089.)

Although defendant argues for the analysis of prejudice applicable to errors of federal constitutional magnitude, we heed the California Supreme Court's admonition that "the '[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense.' (People v. Mincey [(1992)] 2 Cal.4th [408,] 440; see People v. Hall (1986) 41 Cal.3d 826, 834.) 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. (People v. Hawthorne (1992) 4 Cal.4th 43, 58.) If the trial court misstepped, '[t]he trial court's ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.' (In re Wells (1950) 35 Cal.2d 889, 894.) Accordingly, the proper standard of review is that announced in People v. Watson (1956) 46 Cal.2d 818, 836, and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension (Chapman v. California (1967) 386 U.S. 18, 24, 17 L.Ed.2d 705)." (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.)

Under the Watson standard (People v. Watson (1956) 46 Cal.2d 818), the court must reverse only if it also finds a reasonable probability the error affected the verdict adversely to defendant. We conclude the error was harmless. Evidence of the early afternoon fight would have added little to the testimony that the jury did hear. The jury heard that Lopez had previously threatened defendant and sought to fight during the incident that occurred two weeks before May 30, 2009. The court also informed the jury about the stipulation by the parties that the upstairs and downstairs neighbors did not get along and had ongoing disagreements. The proffered evidence did not involve any further threat by Lopez against defendant. Instead, it showed that Lopez received blows by Hendrix's brother but did not hit back. Moreover, the early afternoon incident did not negate defendant's testimony that he had not been afraid of Lopez or his threats two weeks earlier because defendant was bigger than Lopez. Although relevant, the proffered evidence would not have sufficed to overcome the jury's conclusion that defendant was the aggressor in his confrontation with Lopez on the evening of May 30, 2009.

In concluding that the trial court's evidentiary error was harmless, we reject defendant's reliance on jurors' declarations in attempting to establish error. Defendant urges us to consider declarations in which two jurors stated that they would have voted for acquittal if the excluded evidence of the fight in the early afternoon of May 30, 2009, would have been admitted.

Subdivision (a) of Evidence Code section 1150 provides that "[u]pon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him [or her] to assent to or dissent from the verdict or concerning the mental processes by which it was determined." (Italics added.) "This limitation prevents one juror from upsetting a verdict of the whole jury by impugning his [or her] own or his [or her] fellow jurors' mental processes or reasons for assent or dissent." (People v. Hutchinson (1969) 71 Cal.2d 342, 350.) The juror declarations offered by the defense to impeach the verdict run afoul of Evidence Code section 1150 by seeking to undermine the thought processes of jurors in reaching their decision. (Ibid.) Accordingly, we conclude the juror declarations do not undermine our conclusion that the evidentiary error of which defendant complains was harmless.

II

Failure to Instruct on Defense of Another

Defendant next contends the trial court erred by failing to instruct sua sponte on defense of another. Specifically, defendant argues that the court should have instructed the jury that defendant was entitled to acquittal if it found that he acted to protect Poppy from harm by the upstairs neighbors. We disagree.

A. Background

During the discussion of jury instructions to be given, defense counsel requested that the court instruct on defense of another because defendant "was not just acting in self-defense but also or in defense of another." On this point, the defense argued that the evidence supported a theory that defendant hit Lopez to protect Poppy.

The trial court declined to instruct on defense of another, stating:

"[T]he only testimony that I saw in this -- during the course of this trial was that [Poppy]*fn2 was standing -- I don't think he was standing at the back door. He was standing at the back corner of the apartment house or somewhere in that immediate vicinity. Perhaps as far over as the back door, but no further than that, and so he didn't come into play until the testimony showed [defendant] called him into play which was when the other folks got involved.

"At some point in time there is testimony that [defendant] said, you know, Poppy -- or asked for help and, then Poppy jumped in. Whether that happened or not, that is a question for the jury, I don't know, but it doesn't matter, because he had to be called in. He wasn't immediately there. There is no testimony -- there is not sufficient testimony that -- in my view that [Poppy] was in the zone of danger, and therefore there is no grounds [sic] for a defense of others defense in this case, and that's why I kept it out."

B. Defense of Another Requires Imminent Danger

To excuse a crime, both self defense and defense of another require an actual and reasonable belief in the need to defend the threatened person against an imminent danger of bodily injury. (People v. Humphrey, supra, 13 Cal.4th at p. 1082; People v. Randle (2005) 35 Cal.4th 987, 994, overruled on a different point in People v. Chun (2009) 45 Cal.4th 1172, 1201.) To support a claim of self defense, "a mere fear that danger will become imminent is not enough." (People v. Aris (1989) 215 Cal.App.3d 1178, 1188, disapproved on other grounds in People v. Humphrey, supra, 13 Cal.4th at p. 1089.) Instead, "the peril must have existed or appeared to the defendant to have existed at the very time [defendant acted in self defense]. In other words, the peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with." (People v. Aris, supra, at p. 1187, italics added.)

"A trial court must instruct the jury on every theory that is supported by substantial evidence, that is, evidence that would allow a reasonable jury to make a determination in accordance with the theory presented under the proper standard of proof. (See, e.g., People v. Crew (2003) 31 Cal.4th 822, 835.) We review the trial court's decision de novo. In so doing, we must determine whether there was indeed sufficient evidence to support the giving of [the] instruction." (People v. Cole (2004) 33 Cal.4th 1158, 1206.) "'In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.'" (People v. Salas (2006) 37 Cal.4th 967, 982, quoting People v. Jones (2003) 112 Cal.App.4th 341, 351.) "Even so, the test is not whether any evidence is presented, no matter how weak. Instead, the jury must be instructed when there is evidence that 'deserve[s] consideration by the jury, i.e., "evidence from which a jury composed of reasonable [people] could have concluded"' that the specific facts supporting the instruction existed." (People v. Petznick (2003) 114 Cal.App.4th 663, 677, quoting People v. Flannel (1979) 25 Cal.3d 668, 684.)

In this case, the evidence adduced at trial did not warrant the giving of an instruction on defense of another. No testimony indicated that defendant hit Lopez because Poppy was in imminent danger of being assaulted by Lopez or anyone else associated with the upstairs apartment. To the contrary, the testimony established that Poppy was not near Lopez or Ronquillo when defendant hit Lopez. At most, the evidence showed Poppy was at the doorstep to the downstairs apartment, some distance away from the confrontation in the parking lot. That Poppy was removed from the fray is demonstrated by the fact that defendant had to call him to come over when defendant cried for help. When defendant instigated the fight, Poppy was not in any "immediate and present" peril that appeared to require "instant reaction." (People v. Aris, supra, 215 Cal.App.3d at p. 1186.) Accordingly, the trial court properly rejected defense counsel's request to instruct on defense of another.

III

Cumulative Error

Defendant contends the cumulative effect of the errors he asserts on appeal prejudiced his right to a fair trial and requires reversal of the judgment. Having found only a single instance of non-prejudicial error in the trial court's exclusion of evidence regarding the fight on the early afternoon of May 30, 2009, we reject defendant's claim of cumulative error. (People v. Pollock (2004) 32 Cal.4th 1153, 1197.)

DISPOSITION

The judgment is affirmed.*fn3

We concur: BLEASE , Acting P. J. ROBIE , J.


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