P. v. Duronio




Filed 10/13/11 P. v. Duronio CA4/1





NOT TO BE PUBLISHED IN OFFICIAL REPORTS


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. MATTHEW DURONIO, Defendant and Appellant.

D058199 (Super. Ct. No. FSB901058)

APPEAL from a judgment of the Superior Court of San Bernardino County, Annemarie G. Pace, Judge. Affirmed.

I.
INTRODUCTION
Defendant Matthew Duronio appeals from a judgment of conviction after a jury found him guilty of first degree murder and attempted voluntary manslaughter. Duronio used a knife to stab two victims, one of whom died, during a fight that was the culmination of a night of violence between two groups of young men.
On appeal, Duronio contends that the prosecutor committed prejudicial misconduct during her rebuttal argument by commenting on his failure to testify. He also argues that the trial court erred in admitting evidence of a prior uncharged bad act because the prior incident was not sufficiently similar to his conduct in this case to prove his intent on the night of the stabbings. Duronio maintains that the court's admission of this evidence was unfairly prejudicial in that evidence of the prior incident made the jurors believe that he was "more likely to commit premeditated murder to avenge vandalism to his car." Finally, Duronio contends that the cumulative effect of these errors requires reversal.
We conclude that Duronio forfeited the misconduct issue by failing to object to the prosecutor's comments at the time of trial. With respect to Duronio's contention that if this issue is forfeited on appeal, then his attorney provided ineffective assistance by failing to object, we conclude that there is no reasonable possibility that the outcome of the trial would have been different but for defense counsel's failure to object.
As to Duronio's complaint that the trial court should not have admitted evidence of a prior bad act, we agree with Duronio that the trial court abused its discretion in determining that evidence of that incident could be used to prove Duronio's intent to kill during his commission of the charged offenses. Nevertheless, we conclude that the error in admitting the evidence does not require reversal of the judgment.
Finally, we conclude that any cumulative effect of the complained-of errors does not require reversal. We therefore affirm the judgment of the trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
On March 14, 2009, Lillie Walters hosted a going-away party for her high school friend, Anthony Vargas. At some point, there was an altercation in the front yard of Walters's home. The incident began when a group of people, including Skye Murillo, Marcus Perry, Duronio, and some others, drove up to Walters's residence in Murillo's black Chevrolet Tahoe and Duronio's silver Acura Integra. Some of the men in the Tahoe tried to "[p]ick up" the women who were in the front yard, which angered the men who were at the party. Vargas took off his shirt and yelled at Duronio's group, "Come on motherfuckers!"
Walters approached the men in the Tahoe and asked them to leave. Murillo and a woman who was in the Tahoe started yelling at Walters. As Walters walked back to her house, Murillo waved a gun out of the window of the Tahoe. Another partygoer threw a rock at the Tahoe. As Murillo drove away, he fired the gun once or twice.
Murillo, Duronio, Perry and other friends drove to Murillo's cousin's house where they drank beer. Approximately 45 minutes later, Murillo, Perry, and another man, Chris Segura, picked up Travis Black. Perry retrieved a brick from Black's yard. Those four men started to drive back to Murillo's cousin's house. On their way there, they drove by Walters's house. Perry threw a brick through the rear window of Vargas's white Ford Excursion, which was parked in the driveway of Walters's house.
One of Walters's neighbors saw someone throw the brick into a vehicle in Walters's driveway. The neighbor went over to Walters's house and told Walters and others at the party what had occurred. Three men from the party, including Vargas, left the party in search of the vehicles that the neighbor said had been involved in the brick throwing incident, which included a gray Acura and a black Tahoe. The neighbor accompanied the men in their search.
At the time these men were leaving Walters's house in Vargas's white Excursion, Duronio was driving his girlfriend home. Perry was in the silver Acura with Duronio and Duronio's girlfriend. Duronio passed the Excursion that Vargas was driving. Vargas turned the Excursion around, passed Duronio's Acura, and slammed on the brakes, forcing Duronio to stop. Vargas and the other men from the party jumped out of the Excursion and began punching and kicking Duronio's Acura. Vargas and another man, Justin Marquez, punched Duronio through the broken driver's side window.
When another car approached Duronio's Acura, Vargas and his friends returned to the Excursion and started driving back to Walters's house. Vargas dropped Marquez off at Walters's house, and then drove off with the other two men to look for the black Tahoe.
In the meantime, Duronio drove to his girlfriend's house, where his friend Perry called another friend to come help fight the men who had "jumped" them. The friend agreed to come and help. Perry contacted a friend and asked the friend to have Murillo come and pick up Perry and Duronio. Murillo arrived at Duronio's girlfriend's house approximately five minutes later in Murillo's Tahoe. Duronio was upset and crying. After all of the men got into the Tahoe, Duronio said, "Hold on. I'm going to go get my knives." Perry said, "You don't need those just to fight these fools." However, Duronio continued to his car, opened the driver's side door, and appeared to retrieve something from the car. The men then headed back to Walters's house.
As the men in the Tahoe were approaching Walters's house, the men who had left Walters's party in Vargas's Excursion returned to the area. After Vargas parked, a few of the men in the Tahoe jumped out. One man started fist-fighting with Vargas. Duronio joined in the fight, and stabbed Vargas in the abdomen with a knife. When Chris Basurto tried to step in to help Vargas, Duronio swung the knife at Basurto, hitting Basurto on the hand and severing a tendon.
Basurto ran to Walters's front door and pounded on it. He told Marquez that he had been stabbed and that Vargas needed help. Vargas had begun to retreat from the fight at this point. Perry had started to chase Vargas, but another man grabbed Perry and said, "Come on. [Duronio] just did some dumb shit." When Perry asked what Duronio had done, the man responded, "Come on. [Duronio] just stabbed him."
Vargas ran to Walters's house and said, "I got stabbed." Vargas then collapsed, and Walters and another woman tried to keep him conscious by talking to him.
In the Tahoe, two of the men asked Duronio, "What were you thinking‌" Duronio said nothing in response. Murillo dropped one man off at Duronio's house where that man cleaned the glass out of Duronio's car and moved the car into the garage. Murillo dropped Duronio and two of the other men off at one of the men's homes, where Duronio sat outside waiting for his cousin to pick him up. Duronio cried as he waited to be picked up, and repeatedly asked, "What did I do‌" When Duronio's cousin arrived, Duronio admitted to his cousin, "I stabbed someone." One of the men told Duronio to hide the knives.
The next day, the same man who told Duronio to hide the knives told him to keep his car hidden because a description of the car had appeared in a newspaper article. The police eventually discovered Duronio's car in his girlfriend's garage. They also found a knife with a black and silver handle in the girlfriend's purse. Duronio's girlfriend admitted that she had taken the knife from Duronio's car and put it in her purse.
Vargas, who had been taken to the hospital by ambulance, died from a stab wound to his stomach.
The defense argued that Duronio stabbed Vargas and Basurto in the heat of passion or in the honest but unreasonable belief that he was defending his friend.
B. Procedural background
On December 4, 2009, the San Bernardino County District Attorney filed an information charging Duronio with first degree murder of Vargas (Pen. Code, § 187, subd. (a))^[1] and attempted murder of Basurto (§§ 664/187, subd. (a)). The information alleged that Duronio personally used a knife (§ 12022, subd. (b)(1)) and that a principal was armed with a knife (§ 12022, subd. (a)(2)) during the commission of the offenses.
On March 10, 2010, a jury found Duronio guilty of first degree murder and of attempted voluntary manslaughter. The jury found true all of the enhancement allegations.
The court sentenced Duronio to 25 years to life on the murder count, plus a consecutive term of 3 years on the attempted voluntary manslaughter count, and an additional 2 years for the knife-use enhancements, for a total term of 30 years to life.
Duronio filed a timely notice of appeal.
III.
DISCUSSION
A. Duronio forfeited his claim of error under Griffin v. California,^[2] and cannot demonstrate that his attorney provided ineffective assistance in failing to object to the prosecutor's statement

Duronio contends that the prosecutor commented on Duronio's failure to testify, in violation of Griffin, when, during rebuttal closing argument, the prosecutor argued that defense counsel could have called a witness who could tell the jury "what [Duronio] was thinking," but had not done so.
1. Additional background
During closing argument, defense counsel argued that Duronio was guilty of the lesser offense of voluntary manslaughter in the killing of Vargas, rather than first degree murder, positing that the killing was committed in the heat of passion or in the honest but unreasonable belief in the need to defend another. In arguing the theory that Duronio unreasonably believed that he needed to defend his friend, defense counsel said, "[Duronio]'s intention was to help his friend. And you're going to hear from [the prosecutor] that there's no evidence of his intention. Well, you have circumstantial evidence, and it's there, and you need to consider it."
Defense counsel continued, "[Duronio] knows that these people were capable of hurting him. [Duronio] knows that there[] [are] other people there at that party, because we have testimony that his car and the black Tahoe drove by earlier in the evening, and there were people outside on the lawn. . . . [¶] [Duronio] knows that the people in the Ford Excursion harmed him. . . . And he also knows that the people in the Ford Excursion harmed his friend."
During rebuttal, the prosecutor argued,
"And what evidence do you have of what this man (indicating) was thinking‌ Did his cousin come in and say, 'Um, yeah. . . . He was so afraid that Perry was going to get hurt, that's what he kept saying. He kept saying "Oh my God. Perry was in danger, I needed to help him." ' Not one word of that. Not one word. What did he talk about (indicating)‌ He talked about the car. So I guess the car means more than [Vargas].

"Let's talk about whether or not [defense counsel] needs to put on a defense. No. She doesn't. No. She doesn't have to do a thing; but she also does not get to say, 'Well, let's imagine what he must have been thinking.' She doesn't have to put on a defense, but she doesn't get to make up evidence either."

At that point, defense counsel objected to the "comment making up evidence, disputing [sic] the character of [d]efense [c]ounsel." The trial court overruled the objection, stating that the prosecutor's comments were "an interpretation of evidence" and were "argument."

The prosecutor continued her rebuttal argument, stating,
"If she wanted evidence to be brought that told you what Mr. Duronio was thinking, she certainly had the ability to call a witness. She did call a witness. She talked about Chris Basurto, and he was confused; yet she called him as her own witness. Does she have to put on evidence‌ No. She doesn't have to, but she did. Why call Chris‌ Why not call somebody who knows what the Defendant was thinking‌ Why not put that evidence on instead of asking you to make these leaps and bounds as to what he was thinking‌ There's no evidence of that."

Defense counsel did not raise any further objection to the prosecutor's argument.
2. Legal standards
a. Griffin error
"In Griffin, 'the United States Supreme Court declared that the Fifth Amendment prohibits the prosecutor from commenting, either directly or indirectly, on the defendant's failure to testify in his defense.' [Citation.] This prohibition does not, however, 'extend to comments on the state of the evidence, or on the failure of the defense to introduce material evidence or to call logical witnesses.' [Citation.] Moreover, 'brief and mild references to a defendant's failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error.' [Citation.]" (People v Turner (2004) 34 Cal.4th 406, 419-420 (Turner).)
b. Ineffective assistance of counsel
In People v. Lopez (2008) 42 Cal.4th 960, 966, the Supreme Court outlined a defendant's burden in establishing that his counsel rendered ineffective assistance:
" 'In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it "fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms." [Citations.] Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." [Citation.] If the record "sheds no light on why counsel acted or failed to act in the manner challenged," an appellate claim of ineffective assistance of counsel must be rejected "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." [Citations.] If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [Citation.]' [Citation.]"

3. Analysis
Duronio contends that the prosecutor's question, "Why not call somebody who knows what the Defendant was thinking‌" was a comment on Duronio's failure to testify at trial. According to Duronio, he was the only witness who could have known what he was thinking. He reasons that by asking this question, the prosecutor was suggesting that defense counsel could have called Duronio to tell the jury what he had been thinking, but did not do so. The People point out that Duronio failed to object to the prosecutor's question and seek an admonition, and assert that Duronio therefore forfeited this issue on appeal. We agree that by failing to object to the prosecutor's statement, Duronio forfeited this direct claim. (See Turner, supra, 34 Cal.4th at p. 420; People v. Hughes (2002) 27 Cal.4th 287, 372.)
Apparently recognizing that this claim may not have been preserved for appeal, Duronio argues, in the alternative, that his attorney's failure to object to the prosecutor's comment constituted ineffective assistance of counsel. However, we conclude that Duronio was not prejudiced by defense counsel's conduct in this situation. (See Turner, supra, 34 Cal.4th at p. 420 [no ineffective assistance of counsel in failure to object to claimed Griffin error during opening statement with respect to prosecutor's comment that the prosecutor relied on certain evidence " 'because we did not have access to testimony from the defendants' "].) Again, as noted in part III.A.2.b., ante, "a defendant asserting ineffective assistance of counsel must demonstrate '(1) that counsel's performance was deficient, i.e., that the representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been more favorable to defendant, i.e., a probability sufficient to undermine confidence in the outcome.' [Citation.]" (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050, italics added.)
Assuming for purposes of this opinion that there is a reasonable likelihood that the jury understood the prosecutor's question, "Why not call somebody who knows what the Defendant was thinking‌" to be a reference to Duronio's failure to testify at trial,^[3] and further assuming that Duronio's counsel's failure to object to this comment constituted deficient performance on the part of his attorney, we nevertheless conclude that Duronio has not demonstrated that there is a reasonable probability that, but for his counsel's deficient performance, he would have received a more favorable result at trial.
The prosecutor's reference to calling a witness who knew what Duronio was thinking was brief and mild, and did not necessarily suggest that the jury should draw an inference of guilt from defendant's failure to testify. Rather, the reference was ambiguous and oblique. In context, the jury could have understood the comment to be a suggestion that defense counsel should have called other logical witnesses who had some knowledge as to whether Duronio seemed to be afraid for his friend's safety, or what his demeanor was, just prior to the incident.
Further, the trial court instructed the jury with CALCRIM No. 355, which informed the jury that Duronio had a constitutional right not to testify:
"A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way."

Jurors are presumed to follow the court's instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
In light of the ambiguous and fleeting nature of the prosecutor's remark and the court's very clear instructions to the jury that it was not permitted to consider, for any reason, the fact that Duronio did not testify, we conclude that Duronio has not demonstrated prejudice resulting from his counsel's failure to object to the prosecutor's comment. We therefore reject his ineffective assistance of counsel claim. (See Strickland v. Washington (1984) 466 U.S. 668, 687 [holding that to establish ineffective assistance of counsel, the defendant must demonstrate prejudice].)
B. The trial court should not have admitted the prior bad act evidence; however, the error was not prejudicial

1. Additional background
Before trial, the prosecutor moved to introduce testimony from three witnesses, pursuant to Evidence Code section 1101, subdivision (b), concerning an incident in which Duronio apparently cut a high school classmate with a knife during a cooking class at school. The prosecutor proffered that the witnesses would likely testify to the following:
"Um, basically that Mr. Duronio and Shellyse Johnson were in a class together. They had some type of dispute, verbal dispute; that at the time that they had that verbal dispute, Mr. Duronio produced a knife and began, according to Ms. Johnson, trying to stab her. Um, the other two witnesses observed that; and Mr. Duronio's statement to police was that he was defending himself, but the other two witnesses indicated that the victim had no weapon of attack in her hand. [¶] . . . [¶] . . . And that the victim said she tried to grab the knife from Mr. Duronio; and by trying to grab the knife, she cut her finger on the knife."

In response to the trial court's inquiry as to "how this comes in under your theory of [Evidence Code section] 1101[, subdivision] (b)," the prosecutor argued that the evidence was admissible because "intent basically is the main theory in that the Defendant, um, engaged in altercations, verbal or otherwise; utilizes the—a knife, as in this case where there's an altercation, and a knife is utilized; . . . and I think that that goes—adds a lot of weight to showing that intent in utilizing the knife and his intent to harm or stab."
At this point in time, the trial court ruled that it would exclude the evidence, stating, "I don't think that it necessarily goes to show intent or absence of mistake. . . . [W]hile both are alleged stabbing incidents, they are dissimilar in other respects: Situationally; the type of alleged victim involved is different." The court continued, "However, should the Defense make it an issue as to the Defendant's propensity for violence or that he is—somebody puts on character evidence that he is nonviolent, or doesn't carry a knife, or anything like that, it would certainly go a long way to open the door to the People being able to present this evidence. And at that time I would entertain [the] People's motion to introduce that evidence." The court also determined that at that point, the probative effect of that evidence would be substantially outweighed by its prejudicial effect.
During the prosecution's case-in-chief, defense counsel cross-examined two witnesses regarding Duronio's habit of carrying a knife. During defense counsel's questioning of Marcus Perry, the following colloquy occurred:
"Q. Okay. [¶] Now, have you ever known Mr. Duronio to carry a knife before that evening‌

"A. Yes.

"Q. Okay. [¶] You told that to the Detectives; is that correct‌

"A. Yes.

"Q. Okay. [¶] And, um, would you say that [Duronio] carries his knife around a lot‌

"A. Yeah.

"Q. Okay. [¶] Is there anything unusual about [Duronio] having a knife‌

"A. Hmmmm. Not to me."


Later, defense counsel cross-examined Jared Bennett:
"Q. Did you even know Mr. Duronio to carry a knife‌

"A. Um, I have seen them in his cars before.

"Q. Okay. [¶] So is it unusual for [Duronio] to have a knife—

"A. No.

"Q. —as you know him‌

"A. No."

Outside the presence of the jury, the prosecutor raised the possibility that in inquiring of these witnesses regarding Duronio's carrying a knife, the defense had opened the door to the introduction of the prior bad acts evidence regarding the knife incident at school. The prosecutor argued:
"Your Honor, I think that the door has been opened when [defense counsel] asked the witness, um, 'Do you know Mr. Duronio to carry a knife‌' And, 'Is it unusual for him to have a knife‌' That coupled with the fact of the questioning to the jury, 'Does it necessarily make you a bad person to carry a knife‌' I think the inference is that Mr. Duronio is a good person. Um, 'Is it unusual for him to carry a knife‌' goes into whether or not he usually carries a knife and what that purpose is.

"There—we have had discussions about a prior bad incident. I know that the Court has ruled in favor of [defense counsel] or Mr. Duronio regarding that prior incident, but to continuously pose questions to these witnesses: 'Is it unusual for him to have a knife‌ [A]nd then I don't get to answer that with, 'What does he do with a knife,' or that there is a past incident that Mr. Duronio is known in carrying a knife.[^[4]]

"This witness knows that Mr. Duronio was involved in an incident with a knife at the high school in which a girl was cut, um, when Mr. Duronio used that knife against her. I think that we are leaving the People in, um, a bad situation where I'm entitled to answer that, and I'm being handcuffed at this point, because the follow-up question and the past incident with Mr. Duronio attempting to stab someone with a knife answers those questions. And that is a past habit she has brought in: 'Does he normally carry a knife‌' bringing in past habits. I'm entitled to use that as past—a past incident in which he has shown intent in utilizing a knife, because the intent is out there now. 'Does he normally carry a knife‌' 'Does he usually carry a knife‌' It's in question. And for me not to be able to answer that, I should have been able to answer it before.

"I understand the Court's ruling, and I respect the Court's ruling, but I think we're in an area at this point where this is all out there. It's, um, in front of the jury. The question is: 'Does he usually carry a knife‌' Um, the People are put in a position to where we don't get to answer that, and I think we're at the position now where the Court may have believed before that that wouldn't—wasn't going to be an issue. I disagree with that, but I certainly further disagree now where that the—the pool is kind of poisoned with, 'Does he usually carry a knife‌ Do you know him to carry a knife‌' And, 'People who carry knives aren't necessarily bad people,' we're there. And the People should be entitled to bring in that evidence where the victim in that incident—[.]"

The trial court elected not to rule on the issue that afternoon, and invited the parties to provide the court with authorities on the matter the next morning.
The following day, the prosecutor filed a written motion for reconsideration of the trial court's earlier ruling on the admissibility of the prior bad act evidence. In the motion, the prosecutor asserted that the classroom knife incident was admissible to prove intent and lack of mistake or accident. The attorneys and the court discussed the matter further. Defense counsel argued that in questioning Perry and Bennett regarding Duronio's carrying a knife, the defense was "not putting in evidence of his character for nonviolence" and that "allowing this particular incident in would actually be evidence of his propensity for violence." The defense continued, "[A]s the state of the evidence is right now, there's plenty of evidence that Mr. Duronio had a knife or knives, um, and that he . . . purposely stabbed the victim. So whether he intended to stab the victim on purpose, I don't think actually really is an issue in this case. It's not—the intent to stab was not—because all the evidence as it is right now is that he went up and did this on purpose. There's no evidence that this incident was a mistake or an accident."
The court ultimately concluded that the evidence the defense had introduced through the testimony of Perry and Bennett was "character evidence and opens the door to the People counteracting that character or habit evidence." According to the court, "[T]he intentional use of a weapon in the past countermands that [d]efense[] argument, and I think the door had clearly been open[ed] to the People bringing in that evidence."^[5] The court concluded that the probative value of the evidence, "given what the questioning has become," substantially outweighed the prejudice that might result from its introduction.
The prosecutor presented the evidence of the school knife incident through the testimony of the victim and another classmate. The testimony established that in March 2008, Duronio was in a high school cooking class when another student asked him to stop bothering her. Duronio pointed a knife, which he obtained from the classroom kitchen, toward the girl. She initially thought that Duronio was just "being funny," but then she felt like "it got serious." The victim admitted that she had told the school police officer that she had been cut when she tried to grab at the knife. She thought that the incident was "kind of serious, because you don't play with knives." She did not seek any medical attention for the cut.
Another classmate who witnessed the event said, "I remember them playing. They were just messing around, and then [the victim] said to hand [her] the knife. They both reached out at the same time, and then it sliced the finger."
The trial court gave the jury the following limiting instruction with respect to the prior bad act evidence:
"The People presented evidence that the defendant committed another act that was not charged in this case.

"You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the act. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.

"If the People have not met this burden, you must disregard this evidence entirely.

"If you decide that the defendant committed the act, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not:

"The defendant acted with the intent to kill in this case.

"In evaluating this evidence, consider the similarity or lack of similarity between the uncharged act and the charged offenses.

"Do not consider this evidence for any other purpose.

"Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime.

"If you conclude that the defendant committed the uncharged act, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of murder and attempted murder or any lesser-included offenses. The People must still prove every charge beyond a reasonable doubt."

2. The trial court abused its discretion in admitting the evidence of Duronio's prior conduct for the purpose of determining whether Duronio harbored the intent to kill when he stabbed the victims in this case

We review the trial court's admission of prior bad act evidence for an abuse of discretion. (See People v. Guerra (2006) 37 Cal.4th 1067, 1113 [abuse of discretion standard of review applies to any ruling by a trial court on the admissibility of evidence and is particularly appropriate for questions regarding relevance and undue prejudice].) "The scope of discretion always resides in the particular law being applied; action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an abuse of discretion. [Citation.]" (Choice-in-Education League v. Los Angeles Unified School Dist. (1993) 17 Cal.App.4th 415, 422.)
Evidence of prior criminal acts is admissible "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge)," but not to prove that the defendant carried out the charged crimes in conformity with a character trait. (Evid. Code, § 1101, subd. (b).) "To be admissible to show intent, 'the prior conduct and the charged offense need only be sufficiently similar to support the inference that defendant probably harbored the same intent in each instance.' " (People v. Cole (2004) 33 Cal.4th 1158, 1194, italics added, quoting People v. Yeoman (2003) 31 Cal.4th 93, 121; accord, People v. Ewoldt (1994) 7 Cal.4th 380, 402.)
"As [the Supreme Court has] observed, however, evidence of uncharged misconduct ' "is so prejudicial that its admission requires extremely careful analysis" ' and to be admissible, such evidence ' "must not contravene other policies limiting admission, such as those contained in Evidence Code section 352." ' [Citation.] Thus, 'the probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury.' [Citation.] On appeal, a trial court's ruling under Evidence Code sections 1101 and 352 is reviewed for abuse of discretion. [Citations.]" (People v. Lewis (2001) 25 Cal.4th 610, 637.)
In this case, the prior conduct that the People successfully introduced was simply not similar to the charged conduct at issue. Further, there was no suggestion that Duronio harbored the same intent during the high school cooking class incident as the People alleged he harbored during the charged offenses. The point of allowing prior bad act evidence to be introduced is to permit the jury to make an inference as to some element of the crime at issue in the case. With respect to the use of prior acts evidence going to the element of intent, the Supreme Court has explained, "We have long recognized 'that if a person acts similarly in similar situations, he probably harbors the same intent in each instance' [citations], and that such prior conduct may be relevant circumstantial evidence of the actor's most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution." (People v. Robbins (1988) 45 Cal.3d 867, 879.)
As defense counsel correctly pointed out to the trial court, the issue with respect to intent in this particular case was not whether Duronio intended to use the knife to stab someone. By asserting the defenses of heat of passion and/or unreasonable defense of another, Duronio essentially conceded that he intended to use the knife and that his conduct was not the result of an accident or mistake. The relevant issue for the jury with respect to intent, therefore, was whether the People had proved that Duronio harbored the intent to kill in the absence of some justification that would lessen his degree of guilt from murder to voluntary manslaughter.
The evidence concerning the high school cooking class incident did not demonstrate that Duronio harbored the intent to kill in that instance; the prosecutor never suggested that this evidence supported an inference that Duronio harbored an intent to kill on both occasions. The prosecutor appeared to suggest that evidence of the school cooking class incident was relevant to intent in that it demonstrated the absence of mistake or accident on Duronio's part. However, the defense never suggested that Duronio's conduct in the charged offenses was the result of mistake or accident. Thus, to the extent that the evidence from the cooking class incident may have been introduced for the purpose of demonstrating the lack of mistake or accident, it was not relevant to Duronio's intent in committing the charged offenses, and should not have been admitted. Further the court's instruction to the jury regarding this evidence permitted the jury to consider the evidence for the purpose of determining Duronio's intent, generally, and did not limit its use to the question of mistake or accident.
In any event, it is clear that the evidence of the school cooking class incident could not support an inference that Duronio harbored the intent to kill when he used the knife in the charged offenses, since there is simply no evidence that he harbored the intent to kill during the cooking class incident. Again, in order for such evidence to be admissible to show intent, " 'the prior conduct and the charged offense need . . . be sufficiently similar to support the inference that defendant probably harbored the same intent in each instance.' " (People v. Cole, supra, 33 Cal.4th at p. 1194, italics added.) The court thus should not have admitted the evidence for the purpose of establishing that Duronio harbored the intent to kill, and erred when it instructed the jury that it could use the prior bad act evidence to decide whether or not Duronio had "acted with the intent to kill in this case."
3. The admission of the prior bad act evidence was harmless

The standard for determining prejudice as to a claim that evidence was erroneously admitted is that articulated in People v. Watson (1956) 46 Cal.2d 818. (People v. Carter (2005) 36 Cal.4th 1114, 1171.) Under that standard, we consider whether it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. (Ibid.)
Perhaps ironically, the utter irrelevance of the prior conduct to the charged offenses leads us to conclude that despite the fact that the trial court abused its discretion in admitting evidence of the cooking class incident for the purpose of establishing Duronio's intent to kill with respect to the charged offenses, the error did not affect the outcome of this case.
The witness to the cooking class incident described it as an incident in which one could not reasonably conclude that Duronio harbored any negative intent with respect to the "victim," whom it appears was injured when she reached for and tried to grab the knife that Duronio was handling. During cross-examination, the witness testified that the victim's cut appeared to be the result of an accident, as opposed to the result of a purposeful stabbing intended to injure the victim: "I—as I say, I just remember them sitting there and messing around, and he—she said to, 'Give me the knife.' And he had—he put it out, and she put her hand out at the same time." The witness further explained, "They were just playing around, just like going back and forth talking and stuff. It was no big deal at the time until her finger got sliced." Even the "victim" expressed her belief that she considered the incident to have been "serious" only because "you don't play with knives," indicating that her main objection to what occurred was that Duronio had been "play[ing] with knives." This testimony entirely undermines the inference that the prosecutor presumably wanted the jury to draw based on the school cooking class incident—i.e., that Duronio actually intended to harm the victim in that incident. Rather, the testimony demonstrated that the entire incident involved a foolish teenager "playing" around with a knife, at most in a reckless manner, and that another classmate was hurt when she attempted to grab the knife. The evidence simply does not support the idea that Duronio intended to use a knife to harm his classmate.
Further, the evidence could not possibly have caused the jury to reasonably believe that Duronio was generally a violent person who liked to use knives to threaten others. Certainly, this prior bad act evidence would not have been properly used for such a purpose, but the possibility that a jury might use prior bad act evidence to conclude that a defendant has a propensity to commit crimes is precisely why evidence of prior bad acts must be viewed with caution and why limiting instructions are necessary. However, in this case, there can be no realistic concern that the evidence that the prosecution introduced would have caused a reasonable juror to believe that the cooking class incident, in which Duronio did not even use his own knife but, instead, was using a knife obviously accessible to students of a cooking class, somehow demonstrated that Duronio had a violent disposition and should be considered to be predisposed to committing crimes with knives.
In light of the lack of relevance of the cooking class incident to the main issue in this case—i.e., Duronio's intent at the time he stabbed the two victims here—and the fact that the evidence simply could not have had the effect of suggesting that Duronio was someone who resorted to carrying and using knives to threaten or harm others generally, it is not reasonably probable that a result more favorable to Duronio would have been reached in the absence of the court's error in admitting this evidence.
C. The cumulative errors do not require reversal
Duronio contends that even if neither of the errors, individually, requires reversal, the cumulative impact of these two errors at his trial requires that the judgment be reversed, because it caused him substantial prejudice and rendered his trial fundamentally unfair, in violation of the guarantees of federal and state Constitutions. "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.)
We have concluded that the trial court abused its discretion, without prejudice to Duronio, in permitting the prosecution to introduce evidence regarding a knife incident that occurred during Duronio's school cooking class. We have also considered Duronio's claim that his attorney failed to object to a hypothetical question posed by the prosecutor that he claims indirectly commented on his failure to testify and assumed that counsel's representation fell below an objective standard of reasonableness. However, we concluded that Duronio had not established that counsel's assumed deficient performance was prejudicial. After considering the potential prejudice from any cumulative effect of these errors, we conclude that reversal of the judgment is not required, in view of the insignificance of the impact of the possible errors in the context of the entire trial.
IV.
DISPOSITION
The judgment is affirmed.


AARON, J.

WE CONCUR:



NARES, Acting P. J.



O'ROURKE, J.


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