People v. Reyes CA4/3

Filed 1/28/21 P. v. Reyes CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G058538

v. (Super. Ct. No. 17CF0039)

DANIEL REYES, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Gary S.
Paer, Judge. Affirmed.
Joseph F. Walsh for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel
J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
 A jury convicted defendant Daniel Reyes of domestic battery with corporal
injury of L.A. (Pen. Code § 273.5, subd. (a); count 1) and assault with a semiautomatic
firearm (Pen. Code § 245, subd. (b); (count 2). The jury also found defendant personally
used a firearm (Pen. Code § 12022.5, subd. (a)) during the commission of both offenses.
The court imposed a three-year prison sentence on count 2. The court also imposed a
three-year sentence on count 1, but stayed the sentence pursuant to Penal Code section
654. The court struck the punishment for the firearm enhancement.
Defendant raises seven contentions on appeal: (1) the court erred in
denying his motion to exclude from evidence the gun allegedly used in the assault and
battery; (2) the court erred in admitting evidence of an uncharged act of domestic
1
violence under Evidence Code section 1109; (3) the court erred when instructing the jury
concerning the section 1109 evidence; (4) defense counsel provided ineffective assistance
of counsel by failing to object to some of L.A.’s testimony; (5) the court failed to instruct
sua sponte with CALCRIM No. 3477 (presumption the defendant was reasonably afraid
of death or great bodily injury while in his home); (6) the court erred in limiting a defense
of property instruction as applicable only to count 2; and (7) the court erred in instructing
the jury of the unanimity requirement. We reject each contention and affirm the
judgment.

FACTS AND PROCEDURAL HISTORY

In 2016, defendant and L.A. were in a “traditional romantic relationship”;
L.A. “would stay [at defendant’s house] most of the week . . . .” L.A. spent Christmas
morning of 2016 with defendant and his children. That night L.A. and defendant went to
a nightclub and bar. L.A. consumed four shots and two alcoholic beverages at the bar.
1
All further statutory references are to the Evidence Code unless otherwise
stated.

2
 L.A. saw a male acquaintance at the bar who kissed her on the cheek when
he greeted her. Defendant accused L.A. of kissing the male acquaintance, called her a
“hoe,” and left the bar. L.A. remained at the bar and eventually used a rideshare service
to get back to defendant’s house between midnight and 2:00 a.m.
L.A. was unable to find her key to defendant’s house, so she went to the
front door, knocked, and rang the doorbell. The door was locked, so she went into the
backyard and tried to open the back door, but it also was locked. While in the backyard,
she knocked on defendant’s bedroom window and called his name, but he did not
respond.
She returned to the front of the house and checked to see if the front door
was unlocked. Defendant opened the door dressed in his underwear and holding a
handgun. Defendant pointed the gun at L.A.’s face and called her a “whore” and “hoe.”
L.A. stepped into the entryway and crouched down with her face toward the floor. At
some point, defendant told L.A. she was bleeding, so she touched the back of her head
and saw blood on her hand. Defendant walked away and set the gun down. L.A. ran out
the door toward a neighbor’s house, calling for help. A female neighbor told L.A. she
would call the police. A surveillance video showed L.A. with two neighbors, crying and
saying, “He hit me.”
Although L.A. never felt or saw defendant hit her, she assumed he hit her
2
with the gun because he was standing close to her. She later learned she had a cut on the
back of her head which required five staples to close it.
At trial defendant made an oral motion in limine to exclude from evidence a
handgun recovered from his house. The court did not conduct an evidentiary hearing, but
heard the following arguments of both counsel.

2
During cross-examination, L.A. admitted she testified at the preliminary
hearing that defendant did not hit her in the back of the head. She testified she was lying
during the preliminary hearing because she was afraid of defendant.

3
 According to defense counsel, after defendant was arrested, an officer read
3
him his Miranda rights and he invoked his right to remain silent. He also did not
consent to a search of his house. The officers acquired a search warrant for defendant’s
house. In the affidavit for the search warrant, the officers stated they were looking for
firearms and specifically requested “the ability to bring in a civilian locksmith if
4
necessary to breach” a gun safe. During the search of defendant’s house, the officers
discovered a gun safe in defendant’s bedroom closet. Before bringing in a locksmith, an
officer contacted defendant in custody and requested the combination to the safe without
readvising defendant of his Miranda rights. Defendant provided the combination
allowing the officers to search the safe in which they found a gun with what appeared to
be a human hair attached to the barrel.
Defense counsel argued, without any evidentiary support, that the officers
violated his Miranda and Fifth Amendment rights by asking defendant for the
combination to the safe after he had previously asserted his right to remain silent, and,
therefore, the gun recovered from the safe must be excluded as fruit of the poisonous tree.
The prosecution argued, again without any evidentiary support, that the
officer told defendant “we are going to get into the safe, but if you want to give us the
combo so we don’t destroy it, you can do that”; thus the gun should be admitted into
evidence under the inevitable discovery rule.
The court denied defendant’s motion. Citing U.S. v. Patane (2004) 542
U.S. 630 (Patane), the court noted a Miranda violation only protects against the
admission of coerced statements, not physical evidence. The court also ruled the gun was
admissible under the inevitable discovery rule.

3
Miranda v. Arizona (1996) 384 U.S. 436.
4
At trial, L.A. testified she had previously seen defendant’s guns in a gun
safe he kept locked.

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 DISCUSSION

Defendant’s Motion to Exclude Evidence
Defendant contends the court erred in denying his motion in limine to
exclude the gun recovered from his gun safe. We disagree.
We begin by stating the familiar rule—a ruling of the trial court is
presumed correct. (People v. Booth (2018) 25 Cal.App.5th 450, 452 [“The judgment is
presumed correct. It is defendant’s burden to affirmatively demonstrate error”].) Neither
party discussed the standard of review on appeal, we can understand why. A ruling on a
motion to suppress evidence depends upon the presentation and weighing of evidence,
and here we have no evidence suggesting a Miranda violation, much less that discovery
of the evidence was inevitable. All we have in the appellate record is the argument of
counsel. While we could justifiably affirm the ruling denying the motion to suppress
based upon the total lack of an evidentiary record, in the interest of justice we will
nevertheless discuss the merits of counsels’ argument, under the assumption that the facts
referenced in their respective trial court arguments are undisputed. But we cannot pass
the lack of a record and the evident procedural problems in the trial court without further
comment. Proper procedure is important—it assures fairness; here, procedure was
ignored.
To begin, there is no evidence in the record that the police officer asked
defendant for the combination to the gun safe without a further Miranda warning.
Counsel proceeded as though this was an acknowledged fact. But we do not have an
evidentiary record establishing this foundational fact, or, for that matter, any evidence of
what was said during the purported conversation between defendant and the police
officer.
Under the inevitable discovery exception to the exclusionary rule,
“Evidence need not be suppressed if the prosecution can establish by a preponderance of

5
the evidence that the information would inevitably have been discovered by lawful
means.” (People v. Carpenter (1999) 21 Cal.4th 1016, 1040) “As this is essentially a
question of fact, we must uphold the trial court’s determination if supported by
substantial evidence.” (Ibid.) Thus, under the appropriate standard of review, we look
for evidence supporting the inevitability of discovery. But here, an evidentiary record is
completely missing. The record does not even contain evidence that the police officer
asked defendant for the combination to the safe. And the prosecution did not have a fair
opportunity to present evidence supporting application of the inevitable discovery
doctrine. Defendant sprang the oral motion in limine on the prosecution without notice,
without evidence, and without briefing. As the trial court observed during the hearing,
“As far as a motion to suppress evidence, first of all, you are in complete violation of rule
800. There has been no notice, it hasn’t been calendared, litigated, briefed. Both of
[you] guys announced ready for trial. We are in the tail end of 402’s.”
The court’s reference to rule 800 was a reference to the local Orange
County Superior Court rule governing the procedure for pretrial motions in felony cases.
(Super. Ct. Orange County, Local Rules, rule 800 (Rule 800).) Rule 800 applies by its
terms to a “[m]otion under Penal Code section 1538.5 and other motions to suppress
evidence or for return of property unlawfully seized.” (Rule 800(A)(3).) It expands on
the basic procedural requirements for all pretrial motions in criminal cases under
California Rules of Court, rule 4.111. Among those requirements is that the motion be
“accompanied by a memorandum, . . . served and filed at least 10 court days . . . before
the time appointed for hearing.” (Cal. Rules of Court, rule 4.111(a); accord Rule 800
(B)(1) [“all motions, together with points and authorities, must be in writing and must be
served and filed . . . in accordance with Rule 4.111 of the California Rules of Court”].)
Importantly, California Rules of Court, rule 4.111(b) provides that “[t]he court may
consider the failure without good cause of the moving party to serve and file a
memorandum within the time permitted as an admission that the motion is without

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merit.” (Ibid.; accord, rule 800 (G)(1) [“If any motion subject to this rule is not made
within the time limits and pursuant to the requirements of this rule, the failure to do so
shall constitute a waiver of the right to make the motion, but the court for good cause
shown, may grant relief from the waiver”].)
Penal Code section 1538.5 likewise limits the circumstances under which a
5
motion to suppress may be heard at trial, instead of as a properly briefed pretrial motion.
“If, prior to the trial of a felony or misdemeanor, opportunity for this motion did not exist
or the defendant was not aware of the grounds for the motion, the defendant shall have
the right to make this motion during the course of trial.” (Pen. Code, § 1538.5, subd. (h).)
Here, there is no suggestion or argument that defendant did not know of the alleged
Miranda violation in time to make the motion to suppress well before trial.
Despite these procedural defects, which alone would have justified the
denial of defendant’s motion, the court nevertheless heard the arguments of counsel,
unsupported by any evidentiary showing by either party. (See Rule 800(E)(4) [“If the
pleadings (moving, responding and reply papers) raise no disputed issues of fact, the
court will determine said motion on the pleadings and the argument of counsel”].) Here,
we have no pleadings. But the parties have not argued, neither on appeal nor at the trial
court, that there are any disputed issues of fact.

5
Penal Code section 1538.5 provides: “A defendant may move . . . to
suppress as evidence any tangible or intangible thing obtained as a result of a search or
seizure on either of the following grounds:” “The search or seizure with a warrant was
unreasonable because any of the following apply:” “the method of execution of the
warrant violated federal or state constitutional standards” or “[t]here was any other
violation of federal or state constitutional standards.” (Id., subds. (a)(1)(B)(iv), (v).)
Here, defendant alleged a violation of his Fifth Amendment rights during the execution of
the warrant by obtaining the combination to the safe without giving a Miranda warning.
Section 1538.5, subdivision (a)(2) likewise provides that the motion “shall be made in
writing and accompanied by a memorandum of points and authorities and proof of
service.”

7
 Treating counsel’s arguments as if they were undisputed facts, we note the
police had a lawful warrant to search defendant’s house which specifically allowed them
to search for a safe. In executing the warrant the officers were specifically looking for
firearms. In the warrant affidavit, the officers asked to be allowed to “bring in a civilian
locksmith if necessary to breach” a gun safe. This fact alone supports the court’s
determination the gun would have been lawfully discovered regardless of defendant
providing the combination. In executing a search warrant “[t]he officer may break open
any outer or inner door or window of a house, or any part of a house or anything
therein . . . .” (Pen. Code § 1531, italics added.) “A search of the residence authorizes
the search of all areas of the residence, including containers therein, which could hold the
contraband described in the warrant.” (People v. Kibblewhite (1986) 178 Cal.App.3d
783, 785.) The fact that the warrant affidavit specifically asked to “bring in a civilian
locksmith, if necessary” demonstrates the officers were going to open that safe, with or
without defendant providing the combination, and thus discovery of the gun was
inevitable. Moreover, the officers’ determination to open the gun safe, with or without
the combination, was made clear when the officer told defendant “we are going to get
into the safe, but if you want to give us the combo so we don’t destroy it, you can do
that.”
Citing People v. Superior Court (Corbett) (2017) 8 Cal.App.5th 670,
defendant argues the “inevitable discovery rule does not apply to the search of a person’s
home.” However, Corbett does not stand for such an absurdly broad proposition. In
Corbett, law enforcement conducted a warrantless search of the defendant’s home based
on information obtained from the defendant in violation of his Fourth and Fifth
Amendment rights. There, “the People did not present evidence that law enforcement
was engaged in any lines of investigation that would ultimately have led them to the
illegal firearms in [the defendant’s] home without the information gleaned through the
‘overreaching by the police’” (Corbett, at p. 684.) The court did not broadly rule that the

8
doctrine cannot apply to the search of any home. Here, the police obviously knew about
the gun safe and exhibited their intent to open it before obtaining the combination.
Thus, we conclude the court did not abuse its discretion in ruling the gun
would inevitably have been discovered. The police were looking for a gun, a valid
warrant was obtained, and the police had demonstrated their intent to open a gun safe
with or without a combination provided by defendant. That defendant provided the
combination in an uncoerced manner simply served to “save the safe” from damage or
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destruction.

Section 1109
The prosecutor moved in limine to admit evidence of a prior uncharged act
of domestic violence against L.A. pursuant to section 1109. Defendant argued the
incident should be excluded pursuant to section 352. The court granted the prosecutor’s
motion over defendant’s objection. On appeal, defendant argues the court erred by
allowing the evidence.

6
The parties extensively brief the question whether physical evidence
recovered as a result of a Miranda violation can be excluded as “fruit of the poisonous
tree.” Defendant relies primarily on People v. Schader (1969) 71 Cal.2d 761. In
Schader, the California Supreme Court held the “exclusionary rule is applied to the fruits
as well as the words of an illegally obtained confession.” (Id. at p. 778.) The Attorney
General relies on Patane, supra, 542 U.S. 630 and People v. Davis (2009) 46 Cal.4th
539. In Patane, the United States Supreme Court held in a plurality opinion that “the
Miranda rule is a prophylactic employed to protect against violations of the Self-
Incrimination Clause,” and “is not implicated by the admission into evidence of the
physical fruit of a voluntary statement.” (Patane, supra, 542 U.S. at p. 636.) In Davis,
the California Supreme Court held that “[t]he fruit of the poisonous tree doctrine does not
apply to physical evidence seized as a result of a noncoercive Miranda violation.”
(Davis, supra, 46 Cal.4th at p. 598.) Because we determine the gun inevitably would
have been discovered through lawful means regardless of any Miranda violation, we
need not address whether the evidence could be excluded because of a Miranda violation.

9
 L.A. testified that in July 2016 she was at defendant’s house. While sitting
on the bed, defendant pushed her onto the floor, took her cell phone, and threw it against
the wall.
Section 1109, subdivision (a)(1), provides: “[I]n a criminal action in which
the defendant is accused of an offense involving domestic violence, evidence of the
defendant’s commission of other domestic violence is not made inadmissible . . . if the
evidence is not inadmissible pursuant to Section 352.”
In turn, section 352 affords the court the discretion to “exclude evidence if
its probative value is substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” In this context, the word
“prejudice” is used in the sense of “‘an emotional bias’” (People v. Jennings (2000) 81
Cal.App.4th 1301, 1315-1316) or “‘“of ‘prejudging’ a person or cause on the basis of
extraneous factors”’” (People v. Harris (1998) 60 Cal.App.4th 727, 737), and is not
synonymous with “‘“damaging”’” (People v. Karis (1988) 46 Cal.3d 612, 638). In
deciding whether propensity evidence is admissible under section 352, “trial judges must
consider such factors as its nature, relevance, and possible remoteness, the degree of
certainty of its commission and the likelihood of confusing, misleading, or distracting the
jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial
impact on the jurors, the burden on the defendant in defending against the uncharged
offense, and the availability of less prejudicial alternatives to its outright admission . . . .”
(People v. Falsetta (1999) 21 Cal.4th 903, 917.)
Here, the court did not abuse its discretion. The uncharged incident
happened six months before the charged incident, so it was not remote in time. The prior
conduct involved only a push without substantial injury, so it was unlikely to have an
undue prejudicial impact on the jury. Further, defendant’s conduct in the prior incident
was distinct from the current offense, so it was unlikely to confuse or mislead the jurors

10
as to what conduct they were considering for the current offense. Finally, the evidence of
the prior incident was brief and thus did not lead to an undue consumption of time.
Accordingly, the court did not abuse its discretion by allowing evidence of
the prior uncharged incident.

Ineffective Assistance of Counsel
During her testimony, L.A. initially said she assumed defendant hit her on
the back of the head with a gun. She later testified, however, that she was afraid of
defendant because he hit her with the gun. Defendant argues on appeal that L.A. lacked
personal knowledge to be able to testify that defendant hit her with the gun and his
counsel was ineffective for not objecting. Assuming for the sake of argument that L.A.
lacked personal knowledge, we disagree defendant’s counsel was ineffective for failing to
object.
To establish ineffective assistance of counsel, a defendant must prove his
counsel’s performance was deficient, and that his defense was prejudiced because of this
deficiency. (Strickland v. Washington (1984) 466 U.S. 668, 687.) “When examining an
ineffective assistance claim, a reviewing court defers to counsel’s reasonable tactical
decisions, and there is a presumption counsel acted within the wide range of reasonable
professional assistance.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) “On direct
appeal, a conviction will be reversed for ineffective assistance only if (1) the record
affirmatively discloses counsel had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide one, or (3) there
simply could be no satisfactory explanation.” (Ibid.) Moreover, “there is no reason for a
court deciding an ineffective assistance claim . . . to address both components of the
inquiry if the defendant makes an insufficient showing on one. In particular, a court need
not determine whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies. (Strickland, at

11
p. 697; accord People v. Mestas (2013) 217 Cal.App.4th 1509, 1518 [“If there is no
showing of prejudice, we need not examine counsel’s performance”].)
Here, during cross-examination, defense counsel established L.A. was
looking at the ground and thus could not have seen defendant hit her with the gun in the
back of the head.
“A It happened so fast. I wasn’t watching him. I had my face facing the
floor, so obviously I didn’t see exactly what was going on.
“Q So we are clear then, you don’t ever remember seeing him hit you with
a gun?
“A No, I didn’t see him.
“Q But you have assumed that he did?
“A Right, because he was right in front of me, yes.”
The prosecutor likewise established, during his redirect examination of
L.A., that her crouched position would not have allowed her physically to see defendant
hit her with the gun.
“Q My question was, with you looking down and seeing his feet would it
have been possible for you to see him hit you with the gun?
“A No, unless I was looking up, and I wasn’t.
“Q And you weren’t.
“A I wasn’t.”
And in closing argument, the prosecutor argued that L.A.’s inability to see
the gun strike her actually bolstered her credibility as a witness.
“To her credit she never said, I looked up and saw him hit me. She said he
was standing over me and I looked down.
“If the defense tries to insinuate that she is in some way trying [to] fabricate
the evidence or slam the defendant in some way, how easy would it have been for her to
say, well, I looked up and saw him hit me with it. She never ever said that.”

12
 The prosecutor emphasized the point by later repeating it.
“It would have been so easy to just say I saw that happen. But she
maintained I was looking down. I couldn’t have seen it. I saw his feet directly in front of
me. And then I’m bleeding.”
With the defendant’s cross examination and the prosecutor’s
acknowledgment that it would have been physically impossible for L.A. to have seen
defendant strike her, there could have been no doubt in the jury’s mind that L.A. did not
physically see the gun strike her. Her testimony, that defendant hit her with the gun, was
clearly a shorthand description of her perception of the event, based on the circumstantial
evidence she had observed: defendant’s anger with her that evening; defendant holding a
gun and pointing it at her; standing over her while she crouched in the entryway; and
suddenly bleeding from her head. Her perception of what happened to her was a classic
lay opinion, admissible under section 800, as rationally based on her perception and
helpful to a clear understanding of her testimony. An objection would not only have been
futile, but it also would have appeared silly. Counsel was wise not to appear silly.
Counsel was not ineffective, and even if he were, there could have been no prejudice.
The jury could not have understood under these circumstance that L.A. saw the gun
descending to the back of her head.

Instructional Error
Defendant makes three claims of instructional error arguing: (1) the court
erred by instructing the jury they could use the section 1109 evidence as to both the
assault with a firearm offense (count 2) and the domestic violence offense (count 1); (2)
the court erred by instructing the jury that the defense of property instruction, CALCRIM
No. 3476, applied only to count 2, and not to count 1, and by failing to instruct sua sponte
with CALCRIM No. 3477 (presumption that resident was reasonably afraid of death or
great bodily injury from intruder); and (3) the court improperly instructed with an edited

13
version of the unanimity instruction, CALCRIM No. 3500. We address each claim of
instructional error in turn and disagree with each.
“In considering a claim of instructional error [reviewing courts] must first
ascertain what the relevant law provides, and then determine what meaning the
instruction given conveys.” (People v. Andrade (2000) 85 Cal.App.4th 579, 585.) We
apply the de novo standard of review in determining whether a jury instruction correctly
states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.)

1. The section 1109 evidence (uncharged act of domestic violence) could
properly be considered for both counts.
The court instructed the jury it could use the section 1109 evidence to
“conclude that the defendant was likely to commit the offenses alleged in counts 1 and/or
2.” Defendant argues the court erred by allowing the jury to consider evidence of an
uncharged act of domestic violence in relation to count 2. He asserts the offense of
assault with a firearm is not an offense involving domestic violence. We disagree. As
discussed above, section 1109 allows evidence of an uncharged act of domestic violence
to be used as propensity evidence for an offense “involving domestic violence.” So the
issue is simply whether the assault with a firearm offense “involves” domestic violence.
Section 1109 defines “‘domestic violence’” as having “the meaning set
forth in Section 13700 of the Penal Code.” (Id., subd. (d)(3).) In turn, Penal Code
section 13700 defines “‘domestic violence’” as “abuse committed against an adult or a
minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with
whom the suspect has had a . . . dating or engagement relationship.” (Id., subd. (b).) It is
undisputed defendant was in a dating relationship with L.A. when the charged offense
was committed.
But defendant argues an offense can only qualify under section 1109 if the
“victim’s and the defendant’s domestic relationship [is] an element of the crime.”

14
Defendant provides no authority to support this assertion. Courts have routinely found
that assaults under Penal Code section 245 qualify as crimes of domestic violence when
the defendant’s and victim’s relationship qualified under Penal Code section 13700. (See
e.g. People v. Jennings (2000) 81 Cal.App.4th 1301, 1308; People v. Truong (2001) 90
Cal.App.4th 887, 899-900.) The plain language of section 1109 does not require the
relationship to be an element of the charged offense. We reiterate. Under section 1109
the prior act evidence is admissible when “the defendant is accused of an offense
involving domestic violence,” it does not say the evidence is admissible when the
defendant is accused of the crime of domestic violence. (Id., subd. (a)(1).) “When the
statutory language is clear and unambiguous, there is no need for construction and courts
should not indulge in it. [Citation.] The plain language of the statute establishes what
was intended by the Legislature.” (People v. Fuhrman (1997) 16 Cal.4th 930, 937.) We
decline to read the posited requirement into the statute.
Defendant also argues his due process rights were violated because the
charge of assault with a firearm “does not give notice that it is a domestic violence
offense.” However, defendant was also charged with an enhancement under Penal Code
section 12022.7, subdivision (e), alleging that when he committed the assault with a
firearm he “personally inflicted great bodily injury on [L.A.] under circumstances
involving domestic violence as described in Penal Code section 13700(b).” Thus, there
was no conceivable issue of lack of notice.

2. The court was not obligated to instruct with CALCRIM No. 3476 as to
count 1 nor to instruct sua sponte with CALCRIM No. 3477.
Defense counsel requested the court to instruct the jury with CALCRIM
No. 3476 as to count 2. The court granted the request and instructed the jury, in part,
“[t]he owner or possessor of real or personal property may use reasonable force to protect

15
property from imminent harm.” The instruction stated the defense was applicable to
count 2.
During the discussion regarding CALCRIM No. 3476, the court asked
7
defendant’s counsel if CALCRIM No. 3477 should be given as well. Counsel declined,
saying he was not requesting CALCRIM No. 3477 because, “I discussed that with
[defendant] and we read the applicable trial testimony. My position and [defendant’s]
position is [CALCRIM No. 3477] is not applicable to the facts in our case primarily
because it doesn’t involve an intruder entering the home at the time of the confrontation
between [defendant] and [L.A.]”
Now, on appeal, defendant argues the court erred by (a) instructing the jury
that CALCRIM No. 3476 (right to defend real or personal property) applied only to count
2 and (b) failing to instruct sua sponte with CALCRIM No. 3477 (presumption that
resident was reasonably afraid of death or great bodily injury from an intruder).

a. CALCRIM No. 3476
“It is well settled that a defendant has a right to have the trial court, on its
own initiative, give a jury instruction on any affirmative defense for which the record
contains substantial evidence [citation]—evidence sufficient for a reasonable jury to find
in favor of the defendant [citation]—unless the defense is inconsistent with the
defendant’s theory of the case [citation].” (People v. Salas (2006) 37 Cal.4th 967, 983.)

7
CALCRIM No. 3477 states, in relevant part: “The law presumes that the
defendant reasonably feared imminent death or great bodily injury to (himself/herself) . . .
if: [¶] 1. An intruder unlawfully or forcibly (entered /[or] was entering) the defendant’s
home; [¶] 2. The defendant knew [or reasonably believed] that an intruder unlawfully
and forcibly entered/ [or] was entering) the defendant’s home; [¶] 3. The intruder was
not a member of the defendant’s household or family; [¶] AND [¶] 4. The defendant
used force intended to or likely to cause death or great bodily injury to the intruder inside
the home.”

16
 Substantial evidence did not support extending CALCRIM No. 3476 to
count 1. There was no evidence to suggest L.A. was a threat to defendant’s property
once he opened the door and recognized it was her. Defendant argued he opened the
door and pointed the gun at L.A. because he feared she was breaking into his house. And
the court correctly instructed on that theory with CALCRIM No. 3476 as applied to count
2. But count 1, the domestic violence with corporal injury, was based on defendant
striking L.A. with the gun after he knew it was her and began speaking to her. There was
no evidence presented to support a theory defendant was afraid L.A. was a threat to his
property once he opened the door and recognized her.
In any event, any error in failing to extend CALCRIM No. 3476 to count 1
was harmless under any standard of review. Defendant was able to argue he was
defending his property when he committed the assault with a firearm. Indeed, that was
his principal argument to the jury. But the jury rejected the argument. Both counts were
based on the same incident, so there is no reason the jury would have accepted the
defense as to count 1 while rejecting it as to count 2.

b. CALCRIM No. 3477
There was a complete lack of evidence which would have supported
instructing the jury with CALCRIM No. 3477. L.A. was a member of defendant’s
household, not an unknown intruder. It was undisputed she had a key to the residence
and stayed at his house most nights of the week. Further, there was no evidence L.A.
unlawfully or forcibly entered defendant’s home nor evidence he believed she was an
intruder when she entered his house. Thus, the court was correct to refrain from
instructing the jury with CALCRIM No. 3477.

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 3. The unanimity instruction was not erroneous.
Defendant argues the court erred by instructing the jury with an edited
version of CALCRIM No. 3500 which stated: “The defendant is charged with inflicting
injury on someone with whom the defendant currently has, or previously had a dating
relationship resulting in traumatic condition in Count 1 and Assault with Semiautomatic
Firearm in Count 2. [¶] The People have presented evidence of more than one act to
prove that the defendant committed this offense. You must not find the defendant guilty
unless you all agree that the People have proved that the defendant committed at least one
of these acts and you all agree on which act he committed.”
Defendant argues the wording of this version of CALCRIM No. 3500
allowed the jury to convict him of both counts “if the jury found he committed one of the
counts” and further allowed the jury to convict him of both counts “if they all agreed that
he pointed a loaded firearm at” L.A. We disagree with both claims.
“[T]he correctness of jury instructions is to be determined from the entire
charge of the court, not from a consideration of parts of an instruction or from a particular
instruction.” (People v. Burgener (1986) 41 Cal.3d 505, 538 disapproved on another
point in People v. Reyes (1998) 19 Cal.4th 743, 756.)
Here the jury was also instructed with CALCRIM No. 3515 which said,
“Each of the counts in this case is a separate crime. You must consider each count
separately and return a separate verdict for each one.” Further, the instruction for count 1
instructed the jury they could only find defendant guilty of that count if the prosecution
proved “[t]he defendant willfully inflicted a physical injury on” L.A. We must “‘assume
that the jurors are intelligent persons and capable of understanding and correlating all
jury instructions which are given.’” (People v. Yoder (1979) 100 Cal.App.3d 333, 338.)
Given that context, there was no error with the version of CALCRIM No. 3500 given to
the jury.

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 DISPOSITION

The judgment is affirmed.

IKOLA, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.

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