P. v. Mendez

Filed 10/25/06 P. v. Mendez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. James M. Stuart, Judge.

Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Carlos A. Martinez and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Appellant Refugio Medel Mendez stands convicted, following a jury trial, of second degree murder involving the personal use and intentional discharge of a firearm causing death. (Pen. Code, §§ 187, subd. (a), 12022.5, subd. (a), 12022.53, subd. (d).) Sentenced to an aggregate unstayed term of 40 years to life in prison, he now appeals, raising claims of evidentiary and instructional error. For the reasons that follow, we will affirm.

FACTS

I

PROSECUTION EVIDENCE

Early on the afternoon of May 26, 2004, Cheryl Entac and her sister, Priscilla Ann Claro, were at the Goodwill store at Main and Ninth Streets in Delano. After about 10 minutes there, they headed next door to the St. Vincent’s thrift store. Both noticed an older man and two other people near a tree between the two stores. Entac identified the older man as the person who subsequently was shot. Claro could hear the individuals talking, although they were not talking loudly, and she noted that the older man had a very mild, mannerly way of speaking.

As the sisters entered the store, they heard five gunshots. Claro turned and saw the right side of a man’s face and body. He was facing the victim from a distance of about five feet, and his arm was fully extended. There was a gun in his hand. He slowly began to move his hand down. Claro did not see what he did with the gun, but he began to turn and walk south, past the Goodwill store. People were running, but the shooter was walking at an extremely slow pace. Claro believed she heard the victim say, in Spanish, “he killed me.” He then collapsed. She immediately called 911 on her cell phone. The shooter was walking slowly away as Claro was speaking to police.

Claro was unable to see the shooter’s face except in profile. It seemed to her that his shirt was a beige color with stripes or a pattern, but the sunlight was very bright with a lot of yellow in the light, and she was in shock at the moment. In addition, she had just gotten new prescription glasses with brown-tinted lenses, and sometimes her perception of color was not as accurate as it should be. Claro was unable to focus on the man too much because Entac was yelling and Claro was trying to persuade her not to go outside. Claro did notice that the shooter had white hair, a dark baseball cap, and dark pants.

When Entac first heard the shots, she ducked. Claro exclaimed that someone got shot, at which point Entac, who was in the store doorway, turned around and saw a man right in front of her, on the sidewalk. It was the man who had been under the tree, and she and Claro had passed him 10 to 15 seconds before hearing the gunshots. Now he staggered, said something Entac could not make out, took a few steps, and fell on his back. He was subsequently identified as 67-year-old Rafael Melgoza. Death occurred within minutes of the shooting from exsanguination due to gunshot wounds through the chest.

Entac started to run out, but Claro told her not to go out there. Entac turned and saw a man’s plaid shirt, and the man stuck a gun inside his pants pocket and started calmly walking away. He was perhaps a foot from the tree, and several yards from the man who was shot. Entac never saw the shooter’s face or whether he was holding anything in his other hand.

Entac, who was wearing sunglasses with a slight bluish tint, watched the man walk south. He rounded a corner of the Goodwill, then walked east along the side of that store. He was wearing a plaid, gray-looking shirt and what appeared to be a faded pair of dark jeans. His hair was gray, and he was wearing a dark baseball cap.

When Entac stepped out of the St. Vincent’s store, several people were screaming and running. The shooter was walking calmly and slowly. Entac yelled at a man in front of the Goodwill to stop him, that he was the man who had shot the victim. Although this person was looking in her direction, she did not see whether he did anything afterwards. She then went to assist in giving aid to the victim, who had been shot in the torso. At some point, she saw shell casings on the sidewalk by the tree. They got kicked around by people running back and forth.^[1]

Hector Garcia was attending to a customer in his furniture store on Main Street when he heard the gunshots. He walked to the front of his building and saw a crowd of people outside the St. Vincent’s thrift store. The people were pointing at somebody who was walking down Ninth Street, and screaming that there went the person who shot the victim. Garcia ran through his store to the rolling door that opens onto the alley. When he opened the door, he could hear sirens approaching. He saw only one person in the alley, a man who was walking behind St. Vincent’s, toward 10th Street. The man had a brown bag, which he threw toward a tree at the corner of St. Vincent’s. He then walked back toward Ninth Street.

Within a minute after the call came out, Delano Police Detective Geivet responded to an alleyway off Ninth, where someone pointed appellant out to him. Appellant was slowly pacing back and forth in the alleyway, with something in a black plastic bag in his hand. Geivet directed him to put it down and lie flat on the ground. Appellant, who appeared very calm, did not immediately comply. He said, “no, it’s mine,” and took a long swig from what turned out to be a 24-ounce beer can in the bag. He then went over and threw it in a trash can. He was then taken into custody. He was wearing a checkered shirt, mainly gray with some black stripes; a black baseball cap; and some grayish jeans. Although he had apparently finished the beer, he did not appear to be under the influence.^[2]

Garcia informed Detective Sergeant Alvizo that appellant had thrown an object wrapped in a black plastic bag next to a tree. Alvizo found an unloaded, black .380-caliber handgun lying beside the tree, next to a fence. He did not see any kind of bag around the gun, although there were some approximately four yards away. The gun, a semiautomatic which functioned properly, subsequently was determined to have fired the spent bullets and shell casings found at the scene. Although no fingerprints were found on the weapon or the magazine, two pieces of cloth that had been sewn together were found in appellant’s possession during booking.^[3]

When Claro was interviewed by an officer at the scene, she said she could not recognize the shooter. Geivet subsequently took her and Entac to the back of the Goodwill store to see if they could identify appellant, whom police had in a squad car in the alleyway behind the store. Entac was unable to make an identification because she had not seen the shooter’s face. She did, however, say it was the shirt she had seen, and that it looked like the man. She was about 70 percent certain it was the shooter. Claro told Geivet that she was not sure, but it could be the shooter. When she saw the man’s silhouette in the car, however, she said, “you have him, that’s him.” The hair was the same, as was the way the hat sat on his head. According to Geivet, both women tended to recognize the clothing more than the man himself.

At trial, Claro and Entac were shown the clothing appellant was wearing at the time of his arrest. The hat Claro was shown looked like the type of hat the shooter had been wearing. She thought the shirt was the same, because, as the man turned, she saw what looked like gray stripes. The pants looked like the kind of pants worn by the shooter that day. Appellant’s silhouette looked like that of the shooter. Viewed from the back, the shirt, jeans, and baseball cap Entac was shown at trial were the ones worn by the man with the gun. She was 100 percent certain it was the same clothing. Appellant had the type of hair she observed underneath the shooter’s baseball cap.

II

DEFENSE EVIDENCE

Grinnel Griffin, an investigator for the defense, interviewed Entac and Claro. Claro related that she had seen the shooter’s profile and could not identify him. Entac described the individual she saw as the shooter and said he was wearing a white cap.

Appellant presented evidence that, two or three years before the shooting, he had been beaten up and injured in Coachella. His left eye was blind, and he sometimes had trouble coordinating his words well. His brother, who had never known him to be violent, occasionally observed him talking to himself and making movements by himself.

DISCUSSION

I

EVIDENTIARY ISSUES

A. Exclusion of Evidence of Lack of Identification

On cross-examination, Detective Geivet testified about taking four females (two of whom were Claro and Entac) to the back of the store to view appellant, who was detained in Officer Stites’s vehicle. This exchange took place:

“Q. Okay. And you had a Teresa [Ponce] responding back there to view my client. Is that correct?

“A. Yes, sir.

“A. And a Blanca Esquivel to go back there and view my client also. Is that correct?

“A. Yes, sir.

“Q. They didn’t identify him?

“MR. LUA [prosecutor]: Objection, hearsay.

“THE COURT: The objection is sustained at this point in time.

“BY MR. CASTRO [defense counsel]:

“[Q.] Do you bring everybody to talk to or view the suspects or do you selectively pick people to do it?

“A. Witnesses.

“Q. People that have made observations. Is that the criteria?

“A. Yes.

“Q. Is your criteria then, witnesses that saw the incident, are those the people that you bring to look at and view the suspects?

“A. Yes.

“Q. So these females that you brought, all four of them satisfied your investigative criteria of having observed the incident before you brought them out?

“A. Yes, sir.”

Defense counsel subsequently elicited that Entac told Geivet that she was about 70 percent sure appellant was the shooter, and that Claro said she was not sure. This ensued:

“Q. Did any of the women, any of these four people that - the women that you took down to - did any of them tell you that is the shirt that he was wearing?

“MR. LUA: Objection, hearsay.

“THE COURT: Counsel, let’s make it abundantly clear as to the other two women. I don’t know who they are, if they’re going to come in, but unless and until they come in so the jury can assess the totality of the circumstances and the nature of their involvement, we are not going to talk about those two.”

Defense counsel subsequently elicited, through cross-examination of Officer Gonzalez, that Ponce and Esquivel were performing first aid on the victim when Gonzalez arrived on the scene. Gonzalez took their statements, then saw other officers take them somewhere for what was referred to as an in-field lineup. Gonzalez testified that he contacted Esquivel as soon as he arrived, and that he had a conversation with Ponce a few minutes later. Each conversation, which took place before the women were taken elsewhere by the other officers, lasted between 10 and 20 minutes.

Appellant says the trial court committed reversible error by sustaining the prosecutor’s hearsay objections and thereby excluding evidence that Ponce and Esquivel, who were percipient witnesses, did not identify him. He says the excluded evidence was admissible under Evidence Code^[4] sections 1221 and 1241, and its exclusion violated the due process clause of the Fourteenth Amendment to the United States Constitution.

“‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (§ 1200, subd. (a).)^[5] Except as provided by law, it is inadmissible. (Id., subd. (b).) The proponent of hearsay testimony has the burden of alerting the court to the exception relied upon, and of establishing the foundational requirements for admission of the testimony under an exception to the hearsay rule. (People v. Morrison (2004) 34 Cal.4th 698, 724; People v. Livaditis (1992) 2 Cal.4th 759, 778-779; see Gouzea v. Pacific Greyhound Lines (1946) 74 Cal.App.2d 794, 798 [while trial court has some discretion with regard to whether declarations come within res gestae rule, such discretion cannot be exercised where proponent of evidence makes no effort to come within rule].) A party may not proffer grounds for admission of a statement on appeal where he or she did not attempt to justify admission of the statement on such grounds at trial. (People v. Hines (1997) 15 Cal.4th 997, 1034, fn. 4; see People v. Fauber (1992) 2 Cal.4th 792, 854 [where hearsay objection sustained at trial, defendant cannot contend, for first time on appeal, that statements were relevant nonhearsay evidence].) In the present case, defense counsel made no attempt to alert the trial court to the legal grounds upon which he sought to justify admission of the proffered testimony, or to establish the necessary foundation therefor. Hence, we conclude the issue has not been preserved for appeal, regardless of whether, as appellant claims, the requirements of section 354 were met.^[6] (See People v. Ramos (1997) 15 Cal.4th 1133, 1178.)

In any event, appellant’s claim of error lacks merit. “[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on the hearsay nature of the evidence in question. [Citations.]” (People v. Waidla (2000) 22 Cal.4th 690, 725.) Appellant has established no abuse of discretion here.

Appellant first contends the excluded evidence was admissible under section 1221, which provides: “Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.” “‘There are only two requirements for the introduction of adoptive admissions: “(1) the party must have knowledge of the content of another’s hearsay statement, and (2) having such knowledge, the party must have used words or conduct indicating his adoption of, or his belief in, the truth of such hearsay statement.” [Citation.]’ [Citation.] The analytical basis for this exception is that the adopting party makes the statement his own by admitting its truth. The statement or conduct of the adopting party thus expresses the same statement made by he declarant. [Citation.]” (People v. Castille (2005) 129 Cal.App.4th 863, 876.)

Appellant’s theory of admissibility is unjustified. Section 1221 applies to evidence of a statement offered against a party, of which the party has manifested adoption or belief in its truth. The statements in issue here were made to the police. Law enforcement agencies, departments, or personnel are not parties to a criminal action. (Pen. Code, §§ 683-685; Avelar v. Superior Court (1992) 7 Cal.App.4th 1270, 1274-1275.) Presumably, appellant would have us deem them representatives of the district attorney. The district attorney in turn represents the People, who, in their sovereign capacity, are the plaintiff in a criminal prosecution. (Pen. Code, § 684; see People v. Parriera (1965) 237 Cal.App.2d 275, 282.) Thus, we apparently are expected to attribute the officers’ “words or other conduct” (§ 1221) to the prosecutor, and to reason that the excluded evidence was offered against the prosecution in the sense that it was elicited by the defense and did not bolster the prosecutor’s case. Even if we were to concur with what we think is appellant’s logic in this respect, however, we would be constrained to observe, as has the California Supreme Court, that “we find no authority supporting invocation of the rule [of section 1221] against the People in a criminal case .” (People v. Hayes (1999) 21 Cal.4th 1211, 1258.) Tellingly, appellant cites us to none.

Moreover, at no time did the People - either through the officers or the prosecutor - adopt any statements made by Ponce or Esquivel concerning identification of appellant or manifest a belief in their truth. The police simply conducted an investigation. That investigation apparently revealed that Ponce and Esquivel observed the incident. Assuming that, by taking Ponce and Esquivel to view appellant, police manifested a belief in the fact the women saw the incident, there is absolutely no suggestion these women ever claimed they could identify the assailant. Appellant’s repeated assertion that such statements existed misrepresents the record on appeal, as does his claim that the women participated in field lineups “and exculpated appellant.”

Appellant also contends the evidence was admissible pursuant to section 1241, which states: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Is offered to explain, qualify, or make understandable conduct of the declarant; and (b) Was made while the declarant was engaged in such conduct.”^[7] “The propriety of such testimony proceeds from the supposition that the declarant, without an opportunity deliberately to concoct a false statement or story concerning the transaction for the express purpose of exonerating himself from censure or culpability in connection therewith, has spontaneously made some statement which tends to explain the nature, quality, motive, or intent of the transaction. In other words, it is a statement or declaration explanatory of the character of the transaction, its quality, purpose, or motive, given under such circumstances as to preclude the idea that it involved a falsehood deliberately meditated and conceived and given expression for the benefit or advantage of the declarant himself.” (People v. Fong Sing (1918) 38 Cal.App. 253, 258.)

We fail to see how section 1241 is applicable here. The California Supreme Court has described statements falling within the res gestae rule as “the event speaking through the person and not the person telling about the event .” (People v. Perkins (1937) 8 Cal.2d 502, 514.) We have found no authority, and appellant calls none to our attention, in which this principle has been invoked as the basis for admission of evidence of the type at issue here. (Contrast, e.g., People v. Costa (1953) 40 Cal.2d 160, 165, 168 [trial court properly admitted officer’s testimony, in prosecution for vehicular manslaughter, that when driver of second vehicle regained consciousness and officer asked what happened, victim replied, “‘The man hit us in the rear’”]; People v. Marchialette, supra, 45 Cal.App.3d at pp. 978-980 [witness who was engaged in telephone call with victim when killing occurred was properly allowed to testify, in murder prosecution, concerning what he overheard].) As stated by Witkin, “Where a person’s conduct is relevant but is equivocal or ambiguous, the statements accompanying it may be admitted to explain and make the conduct understandable. These statements have been called ‘verbal acts.’ [Citations.]” (1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 183, p. 900.) The record does not suggest conduct by Ponce or Esquivel that was equivocal or ambiguous or that needed explaining. Accordingly, the trial court did not abuse its discretion by failing to admit the evidence under section 1241.

Moreover, assuming error occurred, it was harmless. As noted, insofar as the record suggests, Ponce and Esquivel did not exculpate appellant, they simply failed to identify him.^[8] Given the lack of certainty in Claro’s and Entac’s identifications of appellant, and the degree to which the defense was able to challenge their identifications of his clothing, it is not reasonably probable appellant would have obtained a more favorable result had the excluded evidence been admitted. (People v. Robinson (2005) 37 Cal.4th 592, 627; People v. Earp (1999) 20 Cal.4th 826, 880; People v. Watson (1956) 46 Cal.2d 818, 836.)

Citing Chambers v. Mississippi (1973) 410 U.S. 284 (Chambers), appellant contends that the due process clause of the Fourteenth Amendment to the United States Constitution was violated by the exclusion of trustworthy evidence that Ponce and Esquivel could not identify him. We disagree.

“As a general proposition, the ordinary rules of evidence do not infringe on a defendant’s right to present a defense. [Citation.] Trial courts possess the ‘traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.’ [Citation.] The trial court’s rulings in this regard will not be overturned on appeal unless it can be shown that the court abused its discretion. [Citation.] Nonetheless, the trial court’s discretion is not without limits, particularly if it operates to hamper defense counsel’s ability to present evidence. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 945.) Thus, courts have acknowledged that there are some circumstances in which due process requires the admission of evidence regardless of state evidentiary rules, or renders the exclusion of such evidence error under the federal Constitution and thereby subject to the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24. (See People v. Robinson, supra, 37 Cal.4th at p. 627; People v. Espinoza (1992) 3 Cal.4th 806, 818; People v. Garcia (2005) 134 Cal.App.4th 521, 523, 540.)

Not every exclusion of evidence favorable to the defense deprives an accused of his or her rights to due process, a fair trial, or the fair opportunity to defend him- or herself, however. (See United States v. Scheffer (1998) 523 U.S. 303, 316.) “Chambers specifically confined its holding to the ‘facts and circumstances’ presented in that case” (Scheffer, at p. 316); it “proscribed the use of technical rules of evidence to exclude information and prevent witnesses from testifying in violation of the defendant’s right of confrontation and right to present witnesses in his defense.” (United States v. Glover (9th Cir. 1979) 596 F.2d 857, 867.) The trial court’s rulings here did not hamper defense counsel’s ability to present evidence, they merely limited the means by which he did so. He could have called Ponce and Esquivel as witnesses; indeed, it was apparent from the trial court’s comments that it would have permitted defense counsel to pursue the subject of their inability to identify appellant with them and, depending on their testimony, possibly with the officers to whom they spoke. We decline to speculate why defense counsel did not call the women as witnesses; what matters is that appellant was not foreclosed from effectively challenging the prosecution’s case or from presenting crucial exculpatory evidence. Accordingly, there was no due process violation. (People v. Espinoza, supra, 3 Cal.4th at p. 818.)

B. Exclusion of Evidence of Victim’s Character

Citing sections 1103 and 352, the prosecution moved, in limine, to prevent the defense from introducing evidence of Melgoza’s character for violence until self-defense was established. While initially deferring the motion, the trial court noted that it did not take much to “establish” self-defense for purposes of introducing evidence of the victim’s character.

The court returned to the issue near the end of the prosecution’s case-in-chief. Defense counsel represented that he sought to have Melgoza’s ex-girlfriend testify concerning incidents of domestic violence between the two of them that had led to the issuance of restraining orders on September 21, 2002, and October 8, 2002. Counsel represented that Melgoza, whom the ex-girlfriend said habitually carried a knife, had threatened to kill the woman a number of times and had also threatened her granddaughter, and that he had been convicted of contempt of court in July 2003. Counsel further represented that Melgoza took the woman to lunch on the day of his death and told her that he wanted to change and desired counseling, and that he was killed 30 minutes to an hour after they parted. It was counsel’s belief that the lunch meeting ended on friendly terms. In response to the prosecutor’s objection that the victim’s character traits were irrelevant because the defense had yet to establish self-defense, defense counsel observed that nobody really knew what happened with respect to the shooting.

The trial court noted that no one testified to finding a knife on or near Melgoza. It also observed that enough time had apparently gone by so that the couple’s problems had sufficiently subsided to the point they were able to get together for a lunch that ended on friendly terms and not with Melgoza angry. The trial court ruled the proffered evidence could not be presented, stating:

“Okay. So I don’t have a situation where I have got evidence of the decedent’s mental state at or near the time of death . I have got a state of mind 18 months earlier with regard to a particular person with whom he had a relationship. It’s too remote.

“Second, if there had been the flare-up on the date in question, then I would let that in, but we don’t have that.

“The next question would be would it come in if your client knew about it, but without the testimony of the client, it can’t come in.

“Mr. Lua is correct, and I think the law is fairly clear in this regard. The defendant has to have some knowledge of the bad character of the decedent in order to get that in because self-defense is, in part, a mental state on the part of the attacker. That’s the way I have always looked at it.

“My ruling is that it cannot be presented .

“We do not have a nexus or a connection between this act of violence that occurred 18 months before the date of death and the incidents that occurred on the date of death, and we have no knowledge on the part of the defendant in terms of evidence. We have no knife at the scene.”

Defense counsel then asked if he could call the witness not to testify concerning specific acts, but to give an opinion as to Melgoza’s reputation for being violent and a person who usually carried a knife. The prosecutor reiterated his position that Melgoza’s reputation for violence was irrelevant because, in terms of how the evidence then stood, self-defense was not relevant. He agreed that the witness should not be indefinitely precluded from testifying, but argued that, until appellant testified and made self-defense an issue or something similar occurred, Melgoza’s propensity to commit violence and specific acts of violence were irrelevant. The court agreed, noting that the witness’s opinion was predominantly based on what occurred around the time she obtained the restraining order.

Appellant now contends the trial court’s exclusion of the evidence constituted reversible error. He says the court’s conclusion, that appellant’s lack of knowledge concerning Melgoza’s violent character foreclosed admission of the evidence, was wrong as a matter of law, and that the passage of time similarly did not foreclose admission. Appellant says the error was reversible because the excluded character evidence was circumstantial proof that Melgoza was the aggressor and threatened to kill, and that this, combined with defense evidence that appellant previously had been injured in a beating and become blind in one eye, “sufficed to show an actual but unreasonable belief in self defense.”

Section 1103 provides, in pertinent part: “(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.”^[9] Under this statute, “[a]n accused claiming self-defense in a prosecution for homicide or assault is entitled to prove the dangerous character of the victim. If this character was known to the defendant, the evidence tends to show the defendant’s apprehension of danger; if it was not known, the evidence nevertheless tends to show that the victim was probably the aggressor. ‘[T]he law recognizes the well-established fact in human experience that the known reputation or character of an assailant as to violence and turbulence has a very material bearing on the degree and nature of the apprehension of danger on the part of a person assaulted; also that one who is turbulent and violent may the more readily provoke or assume the aggressive in an encounter.’ [Citations.]” (1 Witkin, Cal. Evidence, supra, Circumstantial Evidence, § 57, p. 389.)

We have been unable to find any case in which evidence of the victim’s violent character has been admitted as bearing on the question of self-defense when it is the only evidence proffered on the issue. (See, e.g., People v. Wright (1985) 39 Cal.3d 576, 581-582, 587 [evidence of victim’s aggressive and violent character admissible where self-defense “raised” in homicide case; defendant testified that he shot victim, who was acting irrationally and might have been under the influence some drug, in self-defense]; People v. Shoemaker (1982) 135 Cal.App.3d 442, 445-446 [same; defendant testified he assaulted victim in self-defense]; People v. Castain (1981) 122 Cal.App.3d 138, 141-144 [evidence officer used excessive force in effecting arrest on other occasions relevant and admissible, under § 1103, as circumstantial evidence of officer’s conduct on evening in question; defendant testified officer used excessive force in arresting him and that defendant struggled with officer in fear of renewed assault]; People v. Thomas (1969) 269 Cal.App.2d 327, 329 [where defendant claims to have been in fear of victim, defendant’s mental state is relevant and awareness of victim’s pugnacious character tends to show reasonableness of fears; such evidence properly excluded where no evidence defendant knew of earlier fights involving victim]; People v. Rowland (1968) 262 Cal.App.2d 790, 794, 797-798 [evidence of victim’s aggressive and violent character admissible where self-defense “raised” in homicide case; defendant testified gun discharged accidentally while he was attempting to ward off aggressive sexual advance by victim]; People v. Smith (1967) 249 Cal.App.2d 395, 398-399, 404-405 [trial court properly admitted evidence of victim’s reputation for violence and specific acts of violence to show defendant’s state of mind at time of fatal quarrel; defendant testified that he shot and killed victim in course of fending off victim’s assault]; People v. Brophy (1954) 122 Cal.App.2d 638, 642-643, 647-648 [“‘The rule is supported by many authorities that on a trial for homicide, or for an assault and battery, the defendant, after laying a proper foundation by evidence tending to show that, in committing the homicide or assault, he acted in self-defense, may introduce evidence of the turbulent and dangerous character of the deceased or party assaulted’” (italics added); defendant testified he shot victim in self-defense].)

No evidence of self-defense was presented in the case at bench.^[10] Instead of adducing section 1103 evidence to support a claim of self-defense already raised, appellant apparently sought to adduce such evidence to raise the claim in the first instance. Given the absence of evidence properly raising the issue, the trial court did not abuse its discretion by excluding appellant’s proffered evidence concerning Melgoza’s character. (See People v. Vieira (2005) 35 Cal.4th 264, 292.) “The court is not required to admit evidence that merely makes the victim of a crime look bad.” (People v. Kelly (1992) 1 Cal.4th 495, 523.)

Even assuming the evidence was admissible pursuant to section 1103, we still conclude the trial court did not abuse its discretion by excluding it. “The admission of such character evidence is not without bounds, but is subject to the dictates of Evidence Code section 352.” (People v. Wright, supra, 39 Cal.3d at p. 587.)^[11] Under this section, “the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

Here, the specific instances of conduct were somewhat remote. Moreover, they arose in, and the witness’s opinion would have been based on, a domestic violence situation. Although specific instances of past conduct need not be similar to present conduct in order to constitute probative character evidence (see People v. Castain, supra, 122 Cal.App.3d at pp. 142-143), evidence that a person acts violently and aggressively within a relationship setting is not necessarily particularly probative of how that person may tend to act in other encounters. There was no evidence Melgoza was angry on the day he was killed; in fact, Claro specifically testified that he and the other men were not talking loudly just before the shooting, and that Melgoza had a very mild, mannerly way of speaking. Although the excluded evidence may have shown that Melgoza habitually carried a knife some 18 months before the shooting, there was no evidence that he possessed a knife at the time of his death.

Moreover, there was no evidence appellant was aware of Melgoza’s reputation or prior acts of violence.^[12] “For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is ‘imperfect self-defense,’ i.e., ‘the defendant is deemed to have acted without malice and cannot be convicted of murder,’ but can be convicted of manslaughter. [Citation.] To constitute ‘perfect self-defense,’ i.e., to exonerate the person completely, the belief must also be objectively reasonable. [Citations.] As the Legislature has stated, ‘[T]he circumstances must be sufficient to excite the fears of a reasonable person .’ [Citations.] Moreover, for either perfect or imperfect self-defense, the fear must be of imminent harm. ‘Fear of future harm - no matter how great the fear and no matter how great the likelihood of the harm - will not suffice. The defendant’s fear must be of imminent danger to life or great bodily injury.’ [Citation.] Although the belief in the need to defend must be objectively reasonable, a jury must consider what ‘would appear to be necessary to a reasonable person in a similar situation and with similar knowledge .’ [Citation.] It judges reasonableness ‘from the point of view of a reasonable person in the position of defendant .’ [Citation.] To do this, it must consider all the ‘”’facts and circumstances in determining whether the defendant acted in a manner in which a reasonable man would act in protecting his own life or bodily safety.’”’ [Citation.] As [the California Supreme Court] stated long ago, ‘ a defendant is entitled to have a jury take into consideration all the elements in the case which might be expected to operate on his mind .’ [Citation.]” (People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083, fn. omitted.)

Even if jurors might have inferred from the excluded evidence that it was likely Melgoza acted aggressively toward appellant, such an inference alone was not enough to raise a reasonable doubt concerning appellant’s guilt based on whether he acted in perfect or imperfect self-defense (see People v. Cornett (1948) 33 Cal.2d 33, 42), because it did not tend to show appellant’s state of mind. Evidence of Melgoza’s assertedly violent character was not relevant to show appellant’s state of mind at the time of the killing unless appellant knew of that character. (See People v. Cash (2002) 28 Cal.4th 703, 726.)

Under the circumstances of the present case, it would have been sheer speculation for jurors to assume that, since there was no evidence concerning exactly what led to the shooting, and since Melgoza was involved in a violent and abusive relationship some 18 months earlier, he likely was the aggressor in his fatal encounter with appellant and appellant genuinely believed, reasonably or otherwise, that he needed to kill to defend against imminent threat of death or great bodily injury. This is so even if we take into account the fact appellant had previously been beaten and had become blind in one eye.

In light of the foregoing, the trial court did not abuse its discretion by implicitly concluding that the proffered evidence had at most only slight probative value, and that its admission would necessitate undue consumption of time or create a substantial danger of confusing the issues or of misleading the jury. For the same reasons, any error in excluding the evidence or in the weighing process itself was harmless. (See People v. Hinton (2006) 37 Cal.4th 839, 892 [what record must show with respect to § 352 determination]; People v. Cudjo (1993) 6 Cal.4th 585, 611 [applying Watson standard to erroneous exclusion of defense evidence under § 352].)

II

INSTRUCTIONAL ISSUES

A. Refusal to Give CALJIC No. 5.17

Jurors were instructed on first degree murder based on premeditation, second degree murder based on express and implied malice, voluntary manslaughter based on sudden quarrel or heat of passion, and involuntary manslaughter based on unconsciousness due to voluntary intoxication. Appellant requested that the court also give CALJIC No. 5.17 (actual but unreasonable belief in necessity to defend - manslaughter).^[13] The trial court refused, explaining: “[A]s I read the law, in order to have an imperfect self-defense presented to the jury, the defendant has to either directly or indirectly indicate that he, himself, had a feeling of a need to defend himself . During the trial, we had no statements before the jury that were attributed to the defendant and no eyewitnesses indicating there was any act of violence or threat being made against Mr. Mendez by the decedent. I felt there was no possible basis for allowing the jury to consider imperfect self-defense.”

Appellant now says refusal of the instruction constituted reversible error. He is wrong.

“Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter.” (In re Christian S. (1994) 7 Cal.4th 768, 771.) A trial court is not required to instruct on imperfect self-defense, whether on its own motion or upon request, unless such a theory is supported by substantial evidence. (People v. Marshall (1997) 15 Cal.4th 1, 39; People v. Barton (1995) 12 Cal.4th 186, 201; In re Christian S., supra, at p. 783.) “Substantial evidence is evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence that a reasonable jury could find persuasive. [Citation.]” (People v. Barton, supra, at p. 201, fn. 8; People v. Flannel (1979) 25 Cal.3d 668, 684.) “‘[U]nsupported theories should not be presented to the jury.’ [Citation.]” (People v. Marshall, supra, at p. 40.)

“Here, the trial court correctly determined that the evidence did not support the instruction[] requested by the defense and therefore [it] should not be given.” (People v. Marshall, supra, 15 Cal.4th at p. 40.) The evidence showed appellant had previously been injured in a beating, that he had lost the sight in one eye (although it was unclear whether this was a result of the beating), and that he sometimes engaged in odd behavior. In addition, Melgoza apparently was larger than appellant. “Absent direct testimony from [appellant] about what he was thinking or circumstantial evidence suggesting his belief in imminence and necessity, there [was] an insufficient basis for giving the CALJIC No. 5.17 instruction.” (People v. Uriarte (1990) 223 Cal.App.3d 192, 198.) No such evidence was presented here, nor would it have been had the evidence of Melgoza’s character, discussed ante, been admitted. That evidence simply would have permitted jurors to infer that Melgoza may have acted aggressively in an encounter, but they still would have been required to speculate concerning appellant’s state of mind. “‘[S]peculation is not evidence, less still substantial evidence. [Citation.]’ [Citation.]” (People v. Dennis (1998) 17 Cal.4th 468, 508.) A trial court does not err in failing to instruct on a theory where a jury finding thereon would be based on pure speculation. (See People v. Valdez (2004) 32 Cal.4th 73, 116.)

Appellant relies on People v. Vasquez (2006) 136 Cal.App.4th 1176, People v. Viramontes (2001) 93 Cal.App.4th 1256 and People v. Ceja (1994) 26 Cal.App.4th 78 (abrogated on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 90-91). In Vasquez, a prosecution witness testified that the defendant had admitted killing the victim, but said the victim had been choking him. (People v. Vasquez, supra, at pp. 1177-1178.) In Viramontes, a shooting occurred at a party. Although what actually happened was unclear, at least one witness testified that someone shot at appellant before an individual who may have been appellant shot and killed a man who may not have been the original shooter. (People v. Viramontes, supra, at pp. 1259-1260, 1263-1264.) In Ceja, the defendant testified that the victim pulled a gun, which the defendant saw before shooting and killing the victim, although no gun was found at the scene and other witnesses testified that the victim did not have a gun. Additionally, the defendant testified that he did not want to hurt the victim, but was frightened. (People v. Ceja, supra, at p. 86.) Thus, these cases serve only to highlight the total absence of evidence supporting a theory of imperfect self-defense at appellant’s trial.

B. Amplification of Reasonable Doubt Instruction

Prior to deliberations, the trial court instructed jurors on reasonable doubt in the language of CALJIC No. 2.90.^[14] On the second day of deliberations, jurors sent out a note stating that they could not come to a unanimous verdict and asking the court to instruct on what to do next. When the court asked what it might to do assist them in arriving at a verdict, the jury foreperson asked to have certain testimony reread. The foreperson also asked the court to go over the instructions again, and consulted with other jurors concerning the instructions of interest. Jurors subsequently submitted a second note, stating that clarification was needed, inter alia, with respect to “Explaination [sic] of ‘Reasonable Doubt’ or beyond.”

The next morning, the court informed counsel that it intended to reread CALJIC No. 2.90 and tell jurors of the use note, which directs judges to resist the temptation to try to change the instruction. Neither attorney had any objection. The court subsequently told jurors:

“ [Y]ou’ve asked for an explanation of reasonable doubt.

“And, again, in the words of the law, reasonable doubt is defined as follows:

“It is not a mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt.

“It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.

“Now, in the years I’ve been on the bench, this is not the first time I’ve gotten a note like this, and when I was a younger judge, I, on a couple of occasions, responded by giving a little further or different explannation [sic], one that I thought might assist the jury, I got in trouble each time that I did it.

“The Appellate Courts told me not to do that.

“And, so, I haven’t done it since.

“And, now, I note that, in the good book that we get, that has all of these preapproved instructions, we not only have the instruction itself, but, what they call a use note, okay.

“That sometimes helps us interpret or deal with situations.

“And, under this particular one, I find the following language:

“And I share this with you, just so you understand why I’m sticking with the language that’s in the instruction, and not trying to use some examples or give you some additional language or do something else that might help you.

“Which you perceive to be my job.

“But, keep in mind, you folks have rules, so do I.

“And here’s how they tell me why I should just tell you what the language in the statute is.

“Quote, a trial judge tempted to clarify or improve upon the definition of reasonable doubt as embodied in Penal Code Section 1096, and as adopted in this instruction, would well ponder the opinion in People versus Garcia, listing the numerous, sub quote, well intentioned efforts to clarify and explain, end sub quotes, this definition, which have been struck down by the courts of review, and, head [sic], instead, the admonition of People versus Castro that, sub quote, notwithstanding that Section 1096 provides only that the definition may be given, it is safer to allow [sic] the language of the code section, then [sic] to, sub quote, struggle, for originality, where precedent alone should govern, end sub quotes.

“A bunch of words, but it tells me I can’t tell you anything more than the language of it.

“And, I remind you of something we talked about ever so briefly in jury selection.

“Common sense.”

Focusing particularly on the reference to common sense, appellant now claims the trial court’s amplification of the reasonable doubt instruction constituted structural error and mandates reversal. He points to the fact jurors were originally given the standard definition of reasonable doubt, which contains no reference to common sense, and then were given the amplified version during what he terms “deadlocked deliberations.” Quoting various dictionary and literary definitions of common sense, appellant argues that the trial court’s comments lowered the prosecution’s burden of proof and suggested that individual jurors should give up their own subjective views and capitulate to the majority viewpoint, and that jurors should quickly come to a unanimous decision. Although we find some of the descriptions of common sense to be entertaining, we do not find them to be persuasive.

As a preliminary matter, we question whether the issue has been preserved for appeal. Although alleged instructional errors are reviewable on appeal, even without objection, to the extent they affect a defendant’s substantial rights (Pen. Code, § 1259; People v. Prieto (2003) 30 Cal.4th 226, 247), a failure to object generally forfeits any claim of error based on a trial court’s comments (People v. Monterroso (2004) 34 Cal.4th 743, 759; People v. Sanders (1995) 11 Cal.4th 475, 531; People v. Anderson (1990) 52 Cal.3d 453, 469). The challenged remarks here appear to us to be just that - remarks - to which no objection was raised.

In any event, appellant’s claim lacks merit. “[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (In re Winship (1970) 397 U.S. 358, 364.) “The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. [Citation.] Indeed, so long as the court instructs the jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt [citation], the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof. [Citation.] Rather, ‘taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury.’ [Citation.]” (Victor v. Nebraska (1994) 511 U.S. 1, 5.) A trial court’s use of a constitutionally-deficient reasonable doubt instruction is not subject to harmless error analysis. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279-282.)

When reviewing purportedly ambiguous jury instructions, we ask whether there is a reasonable likelihood jurors applied the challenged instructions in a way that violated the Constitution. (Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Welch (1999) 20 Cal.4th 701, 766.) “The constitutional question in the present case[], therefore, is whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard.” (Victor v. Nebraska, supra, 511 U.S. at p. 6.) In making this determination, we must keep in mind that instructions are not considered in isolation. Instead, “[w]hether instructions are correct and adequate is determined by consideration of the entire charge to the jury” (People v. Holt (1997) 15 Cal.4th 619, 677), rather than by reference to “‘”’parts of an instruction or from a particular instruction.’” [Citations.]’ [Citation.]” (People v. Smithey (1999) 20 Cal.4th 936, 963-964.)

In California, once a jury has been charged in the language of Penal Code section 1096, which is embodied in CALJIC No. 2.90, “no further instruction on the subject of the presumption of innocence or defining reasonable doubt need be given.” (Pen. Code, § 1096a.) Indeed, reviewing courts have long cautioned their trial-level counterparts against extemporizing or amplifying the definition, “not because the instruction cannot be improved today,” but “because varying from the standard is a ‘perilous exercise.’ [Citation.]” (People v. Freeman (1994) 8 Cal.4th 450, 503-504; see People v. Garcia (1975) 54 Cal.App.3d 61, 63-66 & cases cited.) Nevertheless, however perilous the exercise might be, it becomes reversible only if an erroneous standard is thereby conveyed to the jury.

A number of cases have found reversible error because the trial court’s departure from the standard instruction effectively lowered the prosecution’s burden of proof. For example, in the seminal case of People v. Brannon (1873) 47 Cal. 96, the California Supreme Court held it was error to instruct jurors that it was their duty to convict if they were “‘satisfied of the guilt of the defendant to such a moral certainty as would influence the minds of the jury in the important affairs of life.’” (Id. at p. 97.) The court held: “The judgment of a reasonable man in the ordinary affairs of life, however important, is influenced and controlled by the preponderance of the evidence. Juries are permitted and instructed to apply the same rule to the determination of civil actions involving rights of property only. But in the decision of a criminal case involving life or liberty, something further is required. There must be more than a preponderance of the evidence. There must be in the minds of the jury an abiding conviction, to a moral certainty, of the truth of the charge, derived from a comparison and consideration of the evidence. They must be entirely satisfied of the guilt of the accused.” (Ibid.) In People v. Johnson (2004) 119 Cal.App.4th 976, we found an unconstitutional lowering of the burden of proof where, during its questioning of and instructions to prospective jurors during voir dire, the trial court repeatedly equated proof beyond a reasonable doubt with everyday decision-making. (Id. at pp. 979-983, 985.) In a case by the same name, People v. Johnson (2004) 115 Cal.App.4th 1169, Division One of the Second District Court of Appeal reached the same conclusion on similar facts, remarking, “We can all describe situations where people make serious decisions in spite of grave reservations about the outcome. Such situations cannot be equated to the level of conviction necessary for finding guilt in a criminal case.” (Id. at p. 1172.) In People v. Garcia, supra, 54 Cal.App.3d 61, unconstitutional diminution of the prosecution’s burden of proof was found where the trial court amplified the standard instruction on reasonable doubt by telling jurors that “‘reasonable doubt means just what the term implies, doubt based upon reason, doubt that presents itself in the minds of reasonable people who are weighing the evidence in the scales, one side against the other, in a logical manner in an effort to determine wherein lies the truth.’” (Id. at p. 68, fn. omitted.) The appellate court found the “weighing” analogy to be “strikingly comparable” to the civil standard of proof by a preponderance of the evidence, whereas the “‘weighing’ process, where a tipping of the scales determines the ‘truth,’ is wholly foreign to the concept of proof beyond a reasonable doubt.” (Id&