Filed 4/5/21 P. v. Juache CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B300716
(Super. Ct. No. 2016006190)
Plaintiff and Respondent, (Ventura County)
v.
ANDRES LEMUS JUACHE,
Defendant and Appellant.
Andres Lemus Juache appeals from the judgment entered
after a jury had convicted him of assault with a deadly weapon (a
knife). (Pen. Code, § 245, subd. (a)(1).)1 The jury found true an
allegation that he had personally inflicted great bodily injury.
(§ 12022.7, subd. (a).) He admitted one prior serious felony
conviction (§ 667, subd. (a)(1)), three prior prison terms (§ 667.5,
subd. (b)), and one prior “strike” within the meaning of
California’s “Three Strikes” law. (§§ 667, subds. (b)-(j), 1170.12,
All statutory references are to the Penal Code unless
1
otherwise stated.
subds. (a)-(d).) The trial court struck the prior prison terms and
sentenced appellant to prison for 16 years.
At a pretrial hearing, the court excluded evidence of
appellant’s gang affiliation and prior conviction for brandishing a
knife. Appellant contends: (1) the prosecutor committed
prejudicial misconduct by bringing the excluded evidence to the
jury’s attention; (2) the trial court gave jury instructions on self-
defense that were not supported by the evidence; and (3) the true
findings on the prior convictions must be reversed because, before
admitting the convictions, he did not voluntarily and intelligently
waive his constitutional rights. We affirm.
Facts
Appellant and Daniel R. (Daniel) were in an alleyway
outside a bar. Daniel was drunk. They got into a fight that
lasted about 20 seconds. Isaiah Lopez, appellant’s friend, was
present during the fight. The day after the fight, Lopez told the
police that Daniel and an unidentified man “were kind of walking
away with each other, . . . and then boom,” the man “kind of like
tried to hit” Daniel with his right hand. Lopez “thought” that the
man had “socked [Daniel].” He did not see anything in the man’s
hand. In response to the attack, Daniel took a “swing [at the
man] and missed.” But when an officer later asked Lopez, “Did
[Daniel] throw a punch back?” Lopez responded, “No. He kind of,
like, pushed him away. He don’t want to fight.” Daniel “stepped
back,” and Lopez saw “blood coming out right away.” Daniel said,
“I got stabbed.” The man “took off.” An officer asked, “[H]ow
many times did [the man] hit [Daniel] . . . ?” Lopez answered, “I
don’t know. I didn’t even see how many times he hit him.
Once—I saw just one hook and he didn’t even hit – it didn’t even
connect.”
2
At trial Lopez identified the man as appellant. He testified
that Daniel and appellant were “right next to each other.” Lopez
saw appellant’s “arm go up” and appear to make “a jab that didn’t
even connect.” Daniel “then swung and missed” and “then
stepped back.” Appellant “didn’t swing back at [Daniel] at that
point” and “didn’t go after him.”
Daniel was stabbed in the chest next to his left nipple. To
save his life, doctors performed “open heart surgery.” It is
reasonable to infer that the surgery was required because the
knife had penetrated his heart and the wound needed to be
repaired.2
A blood sample was taken from Daniel at the hospital and
tested for alcohol. The blood-alcohol content was a very high .419
percent. A detective who had worked in the traffic bureau had
never come across a person with a blood-alcohol content this
high. The detective testified that, based on his experience, a
person with a blood-alcohol content of .24 percent would be
“severely impaired.”
Daniel admitted that he had been “extremely drunk.” He
did not remember anything about the incident outside the bar.
Before the incident, he had never seen appellant.
Appellant testified as follows: Daniel was “drunk” and
acting like “[a]n asshole, . . . [a] jerk.” “He started talking shit
and name calling.” When appellant tried to defuse the situation,
2 “Open heart surgery” is “surgery in which the chest is
opened and surgery is performed on the heart. The term “open”
refers to the chest, not to the heart itself - the heart may or may
not be opened, depending on the particular type of surgery”
[as of Feb. 26, 2021], archived at
.
3
Daniel said, “‘Don’t tell me what to do motherfucker.’” “[M]ore
than once,” Daniel challenged appellant to a fight.
Daniel “started advancing towards [appellant].” Appellant
“started walking backwards” with his “hands up.” He did not
know whether Daniel had a weapon, but he believed that Daniel
was going to hurt him. Daniel was “continuously . . . making
threats and . . . talking shit to me.” “[W]hen [Daniel] felt he got
close enough . . . , he attempted to swing at me.” “He seemed
intimidating . . . and he was, obviously, fearless.” Daniel never
displayed a weapon.
Appellant continued to walk away. Daniel “ended up
walking right next to me like he was going with me wherever I
was going.” Appellant “got scared.” He was “having flashbacks”
of a previous incident when he had been stabbed in the stomach
and had “ended up on my deathbed.” Daniel was not the person
who had stabbed him.
Appellant reached into his pants pocket and retrieved a
pocket knife. He opened the knife. Appellant hoped that Daniel
would “back up” if he saw the knife. When Daniel attempted to
strike appellant, appellant threw his “hands . . . up in a defensive
manner” and unintentionally stabbed Daniel. “[M]y hands just
flew up to try to block myself from getting hit.” Appellant “was in
shock” when he saw that Daniel was bleeding. He “panicked”
and “ran.”
Prosecutor’s Alleged Misconduct:
Introduction of Previously Excluded Evidence
Before the trial began, the court excluded evidence of
appellant’s prior conviction for brandishing a knife in violation of
section 417. It also excluded evidence of gang enhancements
(§ 186.22) found true as to the brandishing conviction and two
4
other prior convictions. The court excluded the evidence
pursuant to Evidence Code section 352 (section 352). The court
permitted appellant to be impeached with prior convictions for
conspiracy to commit carjacking and possession of a firearm in
violation of conditions of probation.
Appellant made a pretrial motion to exclude evidence of his
affiliation with a criminal street gang. The prosecutor sought to
show that appellant “is a documented Barry Street gang
member.” The trial court initially deferred ruling on this issue.
The court later denied the prosecutor’s request to admit evidence
of appellant’s gang affiliation.
Appellant contends that the prosecutor committed
misconduct on three occasions by questioning him about or
commenting upon his gang affiliation. The first incident of
misconduct occurred during questioning about a previous
stabbing of appellant by a person named Cervantes. The
prosecutor asked if the stabbing had occurred “because of a gang
rivalry.” Appellant replied, “It could have been a number of
elements I guess.” The prosecutor asked, “What ‘elements’?”
Defense counsel objected on section 352 and relevance grounds.
The court overruled the objection. Appellant said that he and the
perpetrator of the stabbing “never were . . . the same crowd of
people.” The prosecutor responded, “[I]s that because [the
perpetrator] was in one gang and you were in another?” Defense
counsel objected on relevance grounds, and the court overruled
the objection. Appellant answered, “No.”
The second incident occurred when the prosecutor asked
appellant, “In your experience, what does it mean to be a ‘snitch’
or a ‘rat.’” The trial court overruled defense counsel’s section 352
objection. Appellant replied, “I don’t know, it’s like a tattle tale I
5
guess.” Appellant asserts, “The terms ‘snitch’ and ‘rat’ are used
predominantly in regard to gang activity.”
The third incident occurred during closing argument to the
jury when the prosecutor mocked appellant’s testimony that he
had feared for his safety because “‘I’ve been stabbed in the past so
I’m a little bit skittish.’” The prosecutor said, “Is it reasonable to
think that just because you were stabbed a few years ago by a
rival gang member, that every person who comes up to you is
going to try to kill you?” Defense counsel did not object.
Appellant argues, “The [prosecutor’s] intent to improperly
portray [him] as a gang member, a person of bad character, was
clear.” “Introducing irrelevant gang evidence to paint a
defendant as a person of bad character, particularly in violation
of a trial court ruling, is egregious. . . . The prosecutor’s conduct
obliterated any hope that appellant could be found credible by the
jury, or that his defense of self-defense would be believed.”
Appellant claims that the prosecutor also committed
misconduct by questioning him about his prior conviction for
brandishing a knife. The questioning was as follows:
“[Prosecutor:] [Y]ou say that you . . . are particularly more
cautious because you had been stabbed before; is that right?
“[Appellant:] Yes.
“[Prosecutor:] But isn’t it true that you have actually
brandished knives at people before?
“[Appellant:] In a self-defensive manner, yes.
“[Prosecutor:] But you . . . pled guilty, right, to brandishing
a weapon at somebody?
“[Appellant:] I did ultimately because [my counsel] told me
that someone who has any gang affiliation doesn’t – you can’t say
that you were self-defending for some reason.”
“[Prosecutor:] Well, isn’t it true that the person that you
actually brandished a knife against in that prior was also a gang
member?
6
“[Appellant:] I’m not sure.”
During closing argument to the jury, the prosecutor
commented on appellant’s conviction for brandishing a knife:
“This is someone who is not truthful. He pleads guilty and is
convicted, but ‘I didn’t actually do anything wrong.’ He stabbed
someone, but he didn’t actually do anything wrong. He
brandished a knife in the past, but it was in self-defense. ‘I didn’t
do anything wrong.’ There’s a pattern there.” Defense counsel
did not object.
Appellant argues: “As with the gang evidence, the
prosecutor’s conduct [as to the brandishing conviction] severely
impacted [his] defense in the case, which was self-defense. His
credibility, after being portrayed as a knife wielding gang
member, was unrecoverable, and he was thus denied a fair trial.”
“Once the evidence of gang affiliation and the prior brandishing
conviction were put before the jury, the trial was essentially
over.”
Appellant acknowledges that his counsel did not object to
the prosecutor’s questions or comments concerning the
brandishing conviction. Appellant maintains that, in view of the
trial court’s previous overruling of “counsel’s objections to the
gang evidence[,] . . . any objection to the brandishing evidence
would have been futile and would have served only to further
draw jury attention to the testimony.” If an objection was
required to preserve the issue, appellant argues that he was
denied his constitutional right to effective assistance of counsel.
The People assert: “[A]ppellant has forfeited his claim, and
has failed to establish that objecting at trial would have been
futile or that his counsel provided ineffective assistance.
Regardless, appellant has failed to establish prosecutorial
7
[misconduct], in either the prosecutor’s cross-examination of
appellant or at argument.”
“‘As a general rule a defendant may not complain on appeal
of prosecutorial misconduct unless in a timely fashion — and on
the same ground — the defendant made an assignment of
misconduct and requested that the jury be admonished to
disregard the impropriety. [Citation.]’ [Citation.] [¶] The
foregoing, however, is only the general rule. A defendant will be
excused from the necessity of either a timely objection and/or a
request for admonition if either would be futile.” (People v. Hill
(1998) 17 Cal.4th 800, 820.)
The issues here raise the following six questions: (1)
During cross-examination of appellant, did the prosecutor commit
misconduct in questioning him about his gang affiliation and the
brandishing conviction? (2) During closing argument to the jury,
did the prosecutor commit misconduct in commenting about these
matters? (3) Did the trial court err in overruling the objections
that defense counsel made? (4) Did appellant forfeit the
particular instances of alleged misconduct as to which there was
neither an objection, nor assignment as misconduct, nor request
for an admonition? Were objections or requests for an
admonition excused because they would have been futile? (5) If a
forfeiture did not occur, was the prosecutor’s misconduct
harmless? (6) If counsel’s failure to object, assign as misconduct,
or request an admonition resulted in a forfeiture, was appellant
denied his constitutional right to effective assistance of counsel?
We need not consider these questions. “Prosecutorial
misconduct can result in reversal under state law if there was a
‘reasonable likelihood of a more favorable verdict in the absence
of the challenged conduct’ and under federal law if the
8
misconduct was not ‘harmless beyond a reasonable doubt.’”
(People v. Rivera (2019) 7 Cal.5th 306, 334.) Assuming, without
deciding, that the misconduct issues were preserved for appellate
review and that the prosecutor committed misconduct, we explain
below why the misconduct was harmless beyond a reasonable
doubt.
Appellant alleges that his “self-defense claim was his entire
defense.” Pursuant to CALCRIM No. 3470, the trial court
instructed the jury as follows on self-defense: “Self-defense is a
defense to assault with a deadly weapon. The defendant is not
guilty of that crime if he used force against the other person in
lawful self-defense. The defendant acted in lawful self-defense if:
[¶] 1. The defendant reasonably believed that he was in
imminent danger of suffering bodily injury or was in imminent
danger of being touched unlawfully; [¶] 2. The defendant
reasonably believed that the immediate use of force was
necessary to defend against that danger; [¶] AND [¶] 3. The
defendant used no more force than was reasonably necessary to
defend against that danger.” (Italics added.) A fair translation of
this rule is as follows: You cannot bring a knife to a fist fight, use
it to inflict great bodily injury, and successfully claim self-
defense.
Appellant testified that the only force he used was to throw
up his hands to ward off Daniel’s blows: “[M]y hands just flew up
to try to block myself from getting hit.” In making this
movement, he unintentionally stabbed appellant in the chest
with enough force to penetrate his heart. This scenario is
preposterous. No reasonable juror would have believed
appellant’s explanation that he had accidentally caused such a
grievous, potentially fatal wound by merely putting his
9
“hands . . . up in a defensive manner.”3
The stab wound to the heart required a powerful blow with
the knife pointed at Daniel’s chest, not up in the air. The day
after the stabbing, Lopez spoke to the police and described the
delivery of such a blow. Lopez said that Daniel and another man,
whom he later identified as appellant, “were kind of walking
away with each other, . . . and then boom,” appellant “tried to hit”
Daniel with his right hand. Lopez “thought” that appellant had
“socked him.” “Sock” means “to hit, strike, or apply forcefully”
[as of Feb.
26, 2021], archived at . When
Daniel “stepped back,” Lopez saw “blood coming out right away.”
Appellant’s self-defense claim was eviscerated not by the
prosecutor’s misconduct, but by the absurdity of his own
testimony. The stabbing of Daniel must have been deliberate.
Appellant could lawfully use no more force than was reasonably
necessary to defend himself. (CALCRIM No. 3470.) Daniel was
unarmed and extremely drunk. There was no justification for
appellant’s resort to deadly force, i.e., stabbing Daniel in the
3 See People v. Prock (2014) 225 Cal.App.4th 812, 823:
“[T]he federal opinion concluded it was possible the victim
‘inflicted the mortal wound on himself as he charged Petitioner,
who was holding the knife in his outstretched arm.’ Based on the
totality of facts and circumstances, and the reasonable inferences
that can be drawn from them, we would go even farther. The
defense theory was not just ‘implausible,’ it was preposterous.
This scenario would not even work if the victim was Jesse Owens
reincarnate, sprinting toward appellant with his chest jutting
out, so that a stationary kitchen knife could penetrate six inches
into his thoracic cavity and heart.”
10
heart. ““[D]eadly force or force likely to cause great bodily injury
may be used only to repel an attack which is in itself deadly or
likely to cause great bodily injury . . . .’” (People v. Hardin (2000)
85 Cal.App.4th 625, 629-630; see also People v. Pinholster (1992)
1 Cal.4th 865, 966, disapproved on another ground in People v.
Williams (2010) 49 Cal.4th 405, 459 [“The right of self-defense
did not provide defendant with any justification or excuse for
using deadly force to repel a nonlethal attack”].)
The harmlessness of the prosecutor’s alleged misconduct is
supported by appellant’s post-offense conduct, which
unequivocally displayed consciousness of guilt: 1. He fled the
scene of the attack. 2. After using the bathroom in a nearby bar
to wash his hands, he wiped his fingerprints from the handle of
the bathroom door. 3. He threw the knife away. 4. When
deputies handcuffed him hours after the stabbing, he ran and
threatened to kick a deputy’s “ass.” 5. He soaked his shirt in
bleach to remove the victim’s blood. 6. He denied stabbing
anyone and being at the scene of the stabbing. 7. When a
detective told him that a surveillance camera had captured video
of him at the scene, he responded, “Well, if I stabbed anybody it
was in self-defense.” Appellant’s false exculpatory statements
“cogently evidence consciousness of guilt.” (People v. Osslo (1958)
50 Cal.2d 75, 93.) Consciousness of guilt is also evidenced by his
flight (People v. Johnson (2015) 61 Cal.4th 734, 774), removal or
destruction of evidence (People v. Wong (1973) 35 Cal.App.3d 812,
831), and resistance to arrest (People v. Garcia (2008) 168
Cal.App.4th 261, 283-284).
Jury Instructions on Self-Defense
Appellant claims that the trial court erroneously gave
CALCRIM Nos. 3471 and 3472, which “prejudicially undercut”
11
his theory of self-defense. No. 3471 instructs the jury on the
right of self-defense of a person who engages in mutual combat or
who starts a fight. No. 3472 provides, “A person does not have
the right to self-defense if he or she provokes a fight or quarrel
with the intent to create an excuse to use force.” Appellant
argues that the instructions are not supported by substantial
evidence. “Generally, ‘[a] party is not entitled to an instruction
on a theory for which there is no supporting evidence.’” (People v.
Tufunga (1999) 21 Cal.4th 935, 944.)
Substantial evidence supports the instructions. According
to Lopez’s statements to the police, appellant started the fight
when he “socked” Daniel with his right hand. An officer asked
Lopez, “[D]id [Daniel] throw a punch back?” Lopez responded,
“No. He kind of, like, pushed him away. He don’t want to fight.”
A reasonable jury could conclude that appellant was the
aggressor.
Even if the instructions had been given in error, the error
would have been harmless beyond a reasonable doubt.4 As we
4 The applicable standard of review, however, is the less
onerous Watson test. (People v. Watson (1956) 46 Cal.2d 818,
836.) Appellant mistakenly claims that Watson is inapplicable
because his “federal constitutional rights were violated by the
instructional errors.” In People v. Guiton (1993) 4 Cal.4th 1116,
1129-1130, our Supreme Court stated: “It is error to give an
instruction which, while correctly stating a principle of law, has
no application to the facts of the case. [Citation.] If . . . that is
the only error, it does not appear to be of federal constitutional
dimension. . . . [¶] The error is therefore one of state law subject
to the traditional Watson test [citation] applicable to such error.
[Citation.] Under Watson, reversal is required if it is reasonably
probable the result would have been more favorable to the
defendant had the error not occurred.”
12
explained in the preceding part of this opinion, there was no
justification for appellant’s use of deadly force against Daniel. If
CALCRIM Nos. 3471 and 3472 had not been given, the jury
would still have rejected appellant’s claim of self-defense.
Appellant’s Admission of Prior Convictions
After the jury had found him guilty of assault with a deadly
weapon, appellant admitted the prior convictions. He maintains
that the true findings on these convictions must be reversed
because he did not voluntarily and intelligently waive his
constitutional rights. Appellant faults the trial court for not
advising him of “the right to remain silent, the right to testify,
and the right to confront witnesses.” Appellant concedes that he
was “properly advised of and waived his right to a jury trial” on
the prior convictions.
The controlling authority is People v. Mosby (2004) 33
Cal.4th 353 (Mosby). There, our Supreme Court noted that 30
years earlier it had held “that before accepting a criminal
defendant's admission of a prior conviction, the trial court must
advise the defendant and obtain waivers of (1) the right to a trial
to determine the fact of the prior conviction, (2) the right to
remain silent, and (3) the right to confront adverse witnesses.”
(Id. at p. 356.) In Mosby the court held that “[w]hen, immediately
after a jury verdict of guilty, a defendant admits a prior
conviction after being advised of and waiving only the right to
trial,” the admission can be found to be voluntary and intelligent
“if the totality of circumstances surrounding the admission
supports such a conclusion.” (Ibid.)
The court decided that, although the defendant in Mosby
had been advised of and waived only his right to a jury trial on
the prior conviction, his admission of the conviction was
13
voluntary and intelligent under the totality of the circumstances.
(Mosby, supra, 33 Cal.4th at p. 365.) The Supreme Court adopted
the following conclusion of the Court of Appeal: “‘[Defendant]
knew he did not have to admit [the prior conviction] but could
have had a jury or court trial, had just participated in a jury trial
where he had confronted witnesses and remained silent, and had
experience in pleading guilty in the past, namely, the very
conviction that he was now admitting.’” (Ibid.)
Like the defendant in Mosby, appellant had also just
participated in a jury trial where he had confronted adverse
witnesses. Unlike the defendant in Mosby, appellant had elected
to testify at the jury trial. He therefore must have known that he
had a right to testify at a trial on the prior convictions. Appellant
acknowledges that “it appears that [his] prior convictions were
the result of guilty pleas.” Before he pleaded guilty in the prior
proceedings, he should have been advised of his constitutional
rights. “[P]revious experience in the criminal justice system is
relevant to a recidivist’s ‘“knowledge and sophistication regarding
his [legal] rights.”’” (Mosby, supra, 33 Cal.4th at p. 365, fn.
omitted.) Considering the totality of the circumstances, we
conclude that appellant “voluntarily and intelligently admitted
his prior conviction[s] despite being advised of and having waived
only his right to jury trial.” (Ibid., fn. omitted.)
Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
I concur:
GILBERT, P. J.
14
GILBERT, P. J., Concurring.
I write separately to emphasize that defense counsel
provided competent representation for Juache. The trial court’s
ruling on the in limine motion to disallow cross-examination on
gang affiliation was based on Evidence Code section 352 grounds.
And that was the basis for defense counsel’s objection.
The trial court’s overruling defense counsel’s motion could
have reflected a change of mind concerning its earlier in limine
ruling.
Whether or not this was the reason for the trial court’s
ruling, it would have been better practice for the prosecution to
have approached the bench and made appropriate inquiry before
launching into cross-examination concerning Juache’s gang
affiliation. However absurd it considered his defense, the
prosecution could have faced the risk of a mistrial.
NOT TO BE PUBLISHED.
GILBERT, P. J.
1
TANGEMAN, J.:
I respectfully dissent. The trial court excluded evidence of
appellant’s prior conviction for brandishing a knife because it
would be unduly prejudicial. (Evid. Code, § 1101, subds. (a) &
(b); People v. Hernandez (2004) 33 Cal.4th 1040, 1049; People v.
Koontz (2002) 27 Cal.4th 1041, 1083.) The trial court excluded
evidence of appellant’s gang affiliation for the same reason, and
because this was not a gang-related crime. (People v. Hernandez,
at p. 1049; People v. Williams (1997) 16 Cal.4th 153, 193.)
The prosecutor openly defied these rulings. When
appellant testified, the prosecutor asked if appellant had been
stabbed in a prior incident “because of a gang rivalry,” or in a
separate question, whether it was because the perpetrator of that
stabbing “was in one gang and you were in another.” Appellant
was asked whether he had ever “pled guilty . . . to brandishing a
weapon at somebody” and later was asked whether “the person
that you actually brandished a knife against in that prior was
also a gang member.”
In closing argument, the prosecutor mocked appellant’s
testimony that he feared for his safety “just because [appellant
was] stabbed a few years ago by a rival gang member” and
reminded the jury that appellant had “brandished a knife in the
past.”
This was misconduct, plain and simple. (People v. Bell
(1989) 49 Cal.3d 502, 532 [misconduct to deliberately elicit
inadmissible prejudicial answers].) Yet the majority avoids
reversal by labeling it as harmless. To reach that result, the
majority emphasizes some evidence, downplays or ignores other
evidence, and usurps the function of witnesses and the jury.
1
The case was not a slam-dunk, as the majority conclude.
There were three witnesses to the confrontation: the victim, who
was impossibly drunk (with blood alcohol exceeding .419 percent)
and had no memory of the incident; appellant, who testified that
the victim was the aggressor and that he displayed an open
pocket knife to dissuade the victim and accidentally stabbed him
when he suddenly raised his arms to deflect the victim’s blows;
and a third party, who was “pretty intoxicated” and said that a
dumpster obstructed his view of the fight and he did not see how
it started, but he observed both parties take “swings” at each
other but did not see a knife. Appellant acknowledged seeing
blood flow from the victim’s chest after he struck the victim with
the knife, and said he panicked and attempted to remove any
evidence of his involvement.
Appellant admitted stabbing the victim, relying exclusively
on the theory of self-defense. Without direct evidence of how the
fight started, and the lack of eyewitnesses, the trial boiled down
to a test of appellant’s credibility. This became the critical issue
for the jury to resolve. The trial court properly excluded gang
evidence and the prior brandishing conviction precisely because
of its unduly prejudicial impact on appellant’s credibility—after
all, why should jurors believe a known gang member previously
convicted of unlawfully brandishing a knife to threaten another?
Viewed in this light, the introduction of appellant’s gang
affiliation and prior conviction for brandishing a knife, through
repeated questions and commentary in closing argument,
strongly suggests that such evidence cannot be deemed harmless
as a matter of law under the circumstances extant here. (People
v. Memory (2010) 182 Cal.App.4th 835, 864 [reversed because
inflammatory evidence of gang membership and propensity for
2
violence impaired credibility of self-defense testimony].) Yet the
majority avoids any meaningful harmless error analysis by the
simple expedient of labeling appellant’s testimony as
“preposterous.” Without citation to any evidence, the majority
concludes that “[n]o reasonable juror would have believed
appellant’s explanation” because the blow to the victim’s chest
“required a powerful blow” that “must have been deliberate.”
Where is the evidence that supports this factual finding? Is the
majority acting as both an expert witness and the jury?
In an attempt to overcome this lack of analysis, the
majority relies on its claim that “[y]ou cannot bring a knife to a
fist fight” to support its conclusion.1 Although perhaps
superficially appealing, this slogan is not the law. Instead, the
principles of self-defense allow use of force reasonably necessary
to defend against the danger. (See Pen. Code, § 417, subd. (a)(1)
[exhibiting deadly weapon in threatening manner, or using
deadly weapon in a fight, prohibited “except in self-defense”].)
Use of a deadly weapon is permitted in response to an assault
with fists likely to produce great bodily injury. (CALJIC No.
5.31; People v. Hood (1969) 1 Cal.3d 444, 451.) The rule espoused
by the majority here leads logically to an unintended consequence
by putting all those at risk who, when confronted by aggressive
1The expression reverses the meaning of the adage “Don’t
bring a knife to a gunfight,” popularized in films including The
Untouchables (Paramount Pictures 1987) and The Punisher
(Lions Gate Films 2004).
3
assailants in a threatening manner, dare to expose a pocket knife
to deter another from inflicting imminent harm. That’s not
consistent with existing law. I would reverse.
NOT TO BE PUBLISHED.
TANGEMAN, J.
4
Michele M. Castillo, Judge
Superior Court County of Ventura
______________________________
Linda L. Currey, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, J. Michael Lehmann, Deputy Attorney
General, for Plaintiff and Respondent.