Filed 4/14/21 P. v. Quiros CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO
THE PEOPLE, B299444
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA470044)
v.
MONICA QUIROS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael Garcia, Judge. Affirmed.
Klapach & Klapach and Joseph S. Klapach for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill and Nancy L. Ladner,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Monica Quiros (defendant)
appeals her conviction, following a jury trial, of assault with a
deadly weapon. (Pen. Code, § 245, subd. (a)).1 The jury found
that defendant personally inflicted great bodily injury on the
victim, Corey Moses. (§ 12022.7, subd. (a).) The trial court
suspended imposition of sentence and placed defendant on three
years of formal probation.
We affirm the judgment.
FACTUAL BACKGROUND
In the mid-afternoon on July 29, 2018, defendant and her
girlfriend Sydney Sanford were near the intersection of
Hollywood Boulevard and Vine Street. They encountered Moses,
loudly expressing frustration at passersby. Moses is six feet two
inches tall and weighs 170 pounds. Defendant and Sanford are
both approximately five feet three inches tall and weigh 108
pounds. Defendant and Sanford looked at each other and shook
their heads. Moses said, “Mind your fucking business. I’m not
talking to you,” and walked away.
Sanford called Moses a “fucking bum.” Moses turned
around and said, “I’m not confused about my sexuality. [You]
don’t know if you are a man or a woman.” Moses and Sanford
cursed at each other, and a physical altercation ensued.
Moses testified that Sanford punched him in the face. He
responded by punching Sanford in the face. Defendant
intervened and she and Moses began shoving each other. Moses
testified that he shoved defendant to the other side of an adjacent
city bench. Defendant paused for a few seconds, then “came back
around” and stabbed Moses on his left side, near the ribcage.
1 All further statutory references are to the Penal Code.
2
Moses lifted his shirt and saw blood. Defendant said, “Yeah,
nigger,” and fled with Sanford.
Defendant testified that she and Sanford were trying to get
away from Moses when she noticed Sanford was no longer by her
side. Defendant turned around and saw Sanford and Moses
facing each other approximately three feet behind defendant.
Moses was yelling at Sanford. Defendant yelled, “Get away from
her,” stepped between Moses and Sanford, and placed her hand
on Moses’s chest. Moses responded by punching Sanford in the
eye. He then hit defendant twice – once across her mouth and
the second time on the left side of her jaw. Defendant fell to the
ground. When she stood up again, Moses raised his fists and
approached. Defendant then pulled out her pocketknife and
stabbed Moses in self-defense.
Ramiro Lopez witnessed the altercation while stopped in
his car at a red light. He testified that he saw defendant,
Sanford, and Moses engaged in a physical altercation. Lopez
described the altercation as follows: “They were on the sidewalk.
There was an altercation. They were standing. I saw a lot of
tugging, pulling, shoving that kind of altercation.” Lopez
testified that he did not at any time see Moses strike, punch, or
hit either defendant or Sanford. Lopez described the altercation
as a “scuffle.” He saw defendant and Sanford run away. He then
saw Moses raise his shirt, and blood running down Moses’s side.
After defendant and Sanford fled from the scene, they
crouched by a gate and called a rideshare vehicle. They were
arrested shortly thereafter.
Neither defendant nor Sanford had any visible injuries.
After her arrest, defendant declined medical attention. Police
officers recovered a Swiss Army style pocketknife with blood
3
residue in the backseat of the rideshare car. Defendant
stipulated at trial that the knife belonged to her.
Moses suffered a stab wound in his left torso. He
underwent surgery the following day to repair a damaged
diaphragm.
CONTENTIONS ON APPEAL
Defendant contends the judgment must be reversed for the
following reasons:
I. The trial court erred by failing to instruct the jury, sua sponte,
on self-defense pursuant to CALCRIM No. 3471 and by failing to
modify CALCRIM No. 3472 to include a self-defense instruction.
II. The trial court violated defendant’s right to confrontation of
witnesses by limiting cross-examination of Moses about past
incidents of domestic violence and by excluding a witness who
could testify concerning Moses’s past domestic violence.
III. The prosecutor committed misconduct by allowing Moses to
testify falsely about his domestic violence history and by making
false statements about Moses’s domestic violence history during
closing argument.
IV. Substantial evidence did not support the jury’s verdict.
V. To the extent defendant is found to have waived any of her
appellate challenges, she was denied effective assistance of
counsel.
VI. The cumulative effect of the errors below warrant reversal of
the judgment.
4
DISCUSSION
I. Alleged instructional error
We review de novo defendant’s claim of instructional error.
(People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) In doing
so, we consider the jury instructions as a whole, and in context
with other instructions, to determine whether there was a
reasonable likelihood the jury misapplied the court’s instructions.
(People v. Wilson (2008) 44 Cal.4th 758, 803.)
Even if instructional error is established, reversal is not
required unless it is reasonably probable the defendant would
have obtained a more favorable result if the omitted instruction
had been given. (People v. Watson (1956) 46 Cal.2d 818, 836.)
A. CALCRIM No. 3471
A trial court has a sua sponte duty to instruct the jury on a
defense “‘only if it appears that the defendant is relying on such a
defense, or if there is substantial evidence supportive of such a
defense and the defense is not inconsistent with the defendant’s
theory of the case.’” (People v. Breverman (1998) 19 Cal.4th 142,
157, quoting People v. Sedeno (1974) 10 Cal.3d 703, 716.) The
trial court here found, in ruling on defendant’s posttrial motion to
dismiss, that the evidence did not support a duty to instruct
pursuant to CALCRIM No. 3471.2
The CALCRIM No. 3471 instruction applies to initial
aggressors and mutual combatants and specifies the
circumstances under which such persons may assert a limited
right of self-defense. Mutual combatants are those who do not
2 The record does not support defendant’s contention that the
trial court denied her motion because the instruction was
inconsistent with the defense theory of the case.
5
merely engage in a reciprocal exchange of blows, but who do so
pursuant to mutual intention, consent, or agreement preceding
the initiation of hostilities. (People v. Ross (2007) 155
Cal.App.4th 1033, 1044-1045.) CALCRIM No. 3471 states that a
defendant who was an initial aggressor or mutual combatant may
assert a limited right of self-defense when the defendant (1)
actually and in good faith tried to stop fighting; (2) made the
opponent aware that the defendant wanted to stop fighting; and
(3) made the opponent aware the defendant had stopped
fighting.3 (CALCRIM No. 3471.)
3 CALCRIM No. 3471 provides: “A person who (engages in
mutual combat/[or who] starts a fight) has a right to self-defense
only if: 1. (He/She) actually and in good faith tried to stop
fighting; [AND] 2. (He/She) indicated, by word or by conduct, to
(his/her) opponent, in a way that a reasonable person would
understand, that (he/she) wanted to stop fighting and that
(he/she) had stopped fighting(;/.) [AND 3. (He/She) gave (his/her) opponent a
chance to stop fighting.]
“If the defendant meets these requirements, (he/she) then
had a right to self-defense if the opponent continued to fight.
“[However, if the defendant used only non-deadly force, and
the opponent responded with such sudden and deadly force that
the defendant could not withdraw from the fight, then the
defendant had the right to defend (himself/herself) with deadly
force and was not required to try to stop fighting(,/or)
communicate the desire to stop to the opponent[, or give the
opponent a chance to stop fighting].]
“[A fight is mutual combat when it began or continued by
mutual consent or agreement. That agreement may be expressly
stated or implied and must occur before the claim to self-defense
arose.]”
6
There was no evidence that defendant was either the initial
aggressor or a mutual combatant at the time she intervened
between Moses and Sanford. Defendant testified that she urged
Moses to “get away” and attempted to physically separate Moses
and Sanford by placing herself between them.
Defendant maintains the jury could have concluded she
was the initial aggressor because she either placed her hand on
Moses’s chest (according to defendant’s testimony) or shoved him
(according to Moses) at the time she intervened and because the
jury was instructed, pursuant to CALCRIM No. 3470, that the
slightest touching can be unlawful.4
There was no evidence, however, that defendant attempted
to stop the fight after she and Moses began either shoving or
hitting each other. There was also no evidence that Moses
responded to defendant’s unlawful touching with sudden and
deadly force. The trial court did not err by concluding the
evidence did not support application of CALCRIM No. 3471.
People v. Quach (2004) 116 Cal.App.4th 294, on which
defendant relies, is inapposite. The court in that case reversed
an attempted murder conviction because although the trial court
instructed the jury that a mutual combatant has a right of self-
defense if attempting to stop the fight, the trial court failed to
instruct that the mutual combatant has a right to self-defense if
the opponent responds with sudden deadly force. (Id. at pp. 300-
302.) Here, there was no evidence that defendant and Moses
4 The relevant language in CALCRIM No. 3470 states: “The
slightest touching can be unlawful if it is done in a rude or angry
way. Making contact with another person, including through his
or her clothing, is enough. The touching does not have to cause
pain or injury of any kind.”
7
were engaged in mutual combat when she intervened, and there
is no evidence that Moses responded to defendant’s intervention
with deadly force. Although Moses either shoved or punched
defendant, there was no evidence that his response constituted
deadly force.
The trial court’s failure to instruct the jury with CALCRIM
No. 3471 did not negate defendant’s self-defense theory. The trial
court gave several self-defense instructions, including CALCRIM
Nos. 3470, 3472, and 3474. The record discloses no instructional
error.
B. Modification of CALCRIM No. 3472
Defendant contends the trial court should have modified
CALCRIM No. 34725 to instruct the jury that an initial aggressor
has a right of self-defense if the opponent responds to the initial
provocation with excessive or deadly force. Defendant provides
no authority supporting the proposition that the court had a sua
sponte duty to modify the instruction in this manner. To the
extent defendant believed the instructions were incomplete or
needed elaboration, it was her obligation to request additional or
clarifying instructions. (People v. Dennis (1998) 17 Cal.4th 468,
514.) Her failure to do so forfeits the claim on appeal. (Ibid.)
Moreover, for reasons discussed in section IA above, the
evidence did not support modification of CALCRIM No. 3472.
There was no evidence that defendant attempted to stop the fight
after she and Moses began shoving or hitting each other. There
was also no evidence that Moses responded to defendant’s
unlawful touching with sudden and deadly force.
5 The trial court instructed the jury pursuant to CALCRIM
No. 3472, which states: “A person does not have the right to self-
defense if he or she provokes a fight or quarrel.”
8
C. No prejudicial error
Even assuming the trial court’s failure to instruct the jury
with CALCRIM No. 3471 and to modify CALCRIM No. 3472
constituted error, defendant cannot demonstrate prejudice.
(People v. Watson, supra, 46 Cal.2d at p. 836.) The ultimate issue
for the jury was whether defendant used unreasonable force by
stabbing Moses with a pocketknife during the altercation.
The record shows the jury was instructed on self-defense.
The jury was given CALCRIM Nos. 3470 (Right to Self-Defense
or Defense of Another (Non-Homicide)), 3472 (Right to Self-
Defense: May Not Be Contrived), and 3474 (Danger No Longer
Exists or Attacker Disabled). CALCRIM No. 3470 explained that
the People had “the burden of proving beyond a reasonable doubt
that the defendant did not act in lawful self-defense.” The jury
was also instructed that self-defense was a legal defense to the
charge of assault with a deadly weapon. The record shows the
jury considered defendant’s self-defense theory but rejected it.
The jury instructions given did not result in a miscarriage
of justice. Defendant’s conduct in stabbing Moses after he shoved
her away negates her claim that she acted in self-defense. Both
the driver of a rideshare vehicle and defendant entered after the
assault and arresting officers observed no defensive wounds on
defendant. Defendant’s use of the pocketknife to stab Moses, and
Moses’s need for surgery the following day to repair damage
caused by the stab wound, constitute substantial evidence that
defendant used unreasonable force. Defendant has not
demonstrated that she would have obtained a more favorable
result had CALCRIM No. 3471 or a modified CALCRIM No. 3472
been given. She fails to establish that prejudicial error occurred.
9
II. Confrontation of witness
A. Applicable law and standard of review
The constitutional right of confrontation of witnesses
includes the right to cross-examine adverse witnesses on matters
reflecting on their credibility. (People v. Dalton (2019) 7 Cal.5th
166, 214.) Not every restriction on a defendant’s cross-
examination, however, violates the Constitution. “The trial court
retains wide latitude to restrict repetitive, prejudicial, confusing,
or marginally relevant cross-examination. Unless the defendant
can show that the prohibited cross-examination would have
created a significantly different impression of the witness’s
credibility, the trial court’s exercise of discretion to restrict cross-
examination does not violate the constitutional right of
confrontation.” (People v. Sanchez (2016) 63 Cal.4th 411, 450-
451.)
A trial court also has broad discretion under Evidence Code
section 352 to determine whether the probative value of evidence
is outweighed by concerns of undue prejudice, confusion, or
consumption of time. (People v. Lewis (2001) 26 Cal.4th 334, 374-
375.) We review for abuse of discretion defendant’s claim that
the trial court’s restriction of the scope of cross-examination
violated her rights under the confrontation clause. (People v.
Peoples (2016) 62 Cal.4th 718, 765.)
B. Evidentiary rulings
At a pretrial evidentiary hearing, defendant’s trial counsel
expressed his intent to present evidence of Moses’s history of
domestic violence. Moses was arrested in 2008 for misdemeanor
domestic battery. Moses’s then girlfriend (who is also the mother
of his child) subsequently filed a request for a restraining order,
accompanied by a declaration referring to Moses’s alleged acts of
10
violence in 2009 and 2010. Defense counsel sought to call
Moses’s former girlfriend to testify about the contents of the
declaration as propensity evidence under Evidence Code section
1103. The prosecutor argued in response that the 2009 and 2010
alleged incidents did not result in convictions or a restraining
order; the incidents occurred ten years ago and involved domestic
violence against Moses’s former girlfriend; whereas the
circumstances of this case involved violence against strangers.
The trial court ruled that the defense could ask Moses
about the facts concerning the 2008 incident. The court
precluded, under Evidence Code section 352, reference to any
other past allegedly violent conduct by Moses. The trial court
deferred ruling, until after Moses’s testimony, on whether
Moses’s former girlfriend could be called by defendant to testify
as a witness.
Moses testified on direct examination that he was arrested
in 2008 and charged with domestic violence. He said he was not
convicted in connection with that arrest but attended classes.
Moses further testified that since the 2008 arrest, he had not
been arrested or convicted of any crimes involving violence or
assault.
On cross-examination, Moses described his relationship
with his former girlfriend and the circumstances leading to his
2008 arrest. Moses testified that his then girlfriend “would beat
on me, and I wouldn’t put my hands on her. I would never put
my hands on her. But after awhile, as a human being, you can’t
be nobody’s punching bag, man, woman. . . . [¶] . . . The cops
came, one of us has to go. Me being a man, hey.”
The following exchange between defense counsel and Moses
then occurred:
11
“[Defense counsel]: One of the thin[g]s you told us earlier
on direct examination was that since that arrest in 2008, you
haven’t had any domestic violence incidents, is that correct?
“[Moses]: Right.
“[Defense counsel]: That is not true at all, is it, sir?”
The prosecutor objected that defense counsel’s question exceeded
the scope of the trial court’s ruling limiting inquiry into Moses’s
domestic violence history. The trial court sustained the objection.
The defense subsequently rested without seeking to call Moses’s
former girlfriend as a witness.
C. No abuse of discretion
Defendant fails to establish any abuse of discretion. The
record shows that defense counsel was allowed to cross-examine
Moses about his 2008 arrest for domestic violence. The trial
court precluded cross-examination about other alleged but
unproven incidents of domestic violence against Moses’s
girlfriend in 2009 and 2010. The trial court offered to revisit the
issue of whether Moses’s former girlfriend could testify for
purposes of impeaching Moses’s testimony; however, the defense
never sought to present her as a witness.
“The court will allow the cross-examination as to the
incident in 2008. The court, on [Evidence Code section] 352
analysis, the court will preclude any reference to any further
conduct. [¶] I will review whatever brief is filed by the parties as
to whether or not any external extrinsic evidence is admissible on
those.” The record discloses no brief filed or any further effort to
call a witness on this point before defendant rested her case.
At oral argument defendant took the position that People v.
Castain (1981) 122 Cal.App.3d 138 (Castain) controlled. We find
that Castain does not support defendant’s argument that
12
excluding evidence concerning the 2009 and 2010 domestic
violence incidents was an abuse of discretion. The defendant in
Castain argued that he could not be convicted of battery on a
police officer and resisting arrest because the arresting officer,
Revak, had used excessive force. (Id. at p. 142.) He sought to
introduce testimony by two other individuals who claimed Revak
had used excessive force on other occasions, but the trial court
excluded the proffered testimony under Evidence Code section
352. The Court of Appeal held that exclusion of such testimony
was an abuse of discretion. The court reasoned that the
testimony was “highly probative” to show that Revak had a
propensity to use excessive force against persons he arrested or
detained or a pattern of behavior in this regard. (Id. at p. 143.)
The court in Castain further reasoned that “[a] jury, hearing
evidence of only one other violent confrontation involving the
officer, might conclude it was an isolated aberration” but “would
be much less likely to reach that conclusion if it had heard
evidence of two such incidents.” (Ibid.) Unlike Castain, Moses’s
history of domestic violence against his longtime girlfriend and
mother of the child was not “highly probative” to show a
propensity to initiate violent contact with strangers on a public
street or a pattern of behavior toward such strangers.
The record discloses no abuse of discretion. “[T]he
Confrontation Clause guarantees an opportunity for effective
cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish.”
(Delaware v. Fensterer (1985) 474 U.S. 15, 20.) A trial court’s
exercise of its discretion to limit cross-examination does not
violate the Sixth Amendment unless the defendant can show that
the prohibited examination would have produced “‘a significantly
13
different impression’” of the witness’s credibility. (People v.
Hamilton (2009) 45 Cal.4th 863, 943.) Defendant fails to make
such a showing.
III. Alleged prosecutorial misconduct
Defendant contends the prosecutor committed misconduct
by eliciting false testimony from Moses that since his 2008 arrest,
he had not been arrested or convicted of any crimes involving
violence or assault, by not correcting that allegedly false
testimony, and by stating during closing argument that Moses
had not been involved in any incidents of violence since 2008.
During closing argument, the prosecutor stated: “There is the
2008 misdemeanor arrest for the domestic violence incident that
he [Moses] even admitted to that he didn’t suffer a conviction for.
He does not have any arrest or conviction or anything involving
violence or assault, anything like that since then, over 10 years
ago.”
Defendant forfeited her claim of prosecutorial misconduct
by failing to object to the allegedly improper questioning, Moses’s
response, and the prosecutor’s allegedly false or misleading
closing argument. “‘A defendant may not complain on appeal of
prosecutorial misconduct unless in a timely fashion, and on the
same ground, the defendant objected to the action and also
requested that the jury be admonished to disregard the perceived
impropriety.’ [Citation.]” (People v. Lopez (2008) 42 Cal.4th 960,
966.)
Even absent such forfeiture, there was no evidence that
Moses’s testimony was false or that the prosecutor made false
statements during closing argument. There was no evidence that
Moses was subsequently arrested or convicted of any crimes
involving violence or assault. The unsubstantiated declaration of
14
Moses’s former girlfriend, which was never introduced or
admitted into evidence, does not state that Moses was arrested or
convicted for alleged acts of domestic violence in 2009 and 2010.
The defense did not seek to have Moses’s former girlfriend testify
at trial, and the trial court did not preclude her from testifying as
a witness.
People v. Daggett (1990) 225 Cal.App.3d 751, on which
defendant relies, is inapposite. The court in that case reversed
the conviction on the ground that the trial court erroneously
excluded evidence that the minor victim in a child molestation
case had previously been molested by persons other than the
defendant. (Id. at p. 757.) That error was then compounded
when the prosecutor argued to the jury that “[i]nappropriate
sexual behavior is not inherent in children,” and that the victim
must have learned about oral copulation and sodomy from being
“being exposed to it” by the defendant. The court in Daggett
explained that “[t]he prosecutor asked the jurors to draw an
inference they might not have drawn if they had heard the
evidence the judge had excluded” and therefore “unfairly took
advantage of the judge’s ruling.” (Id. at p. 758.) Here, in
contrast, the trial court allowed evidence and cross-examination
concerning Moses’s 2008 arrest for domestic violence. Although
the court limited the inquiry to that incident, it did not preclude
testimony from Moses’s former girlfriend. Rather the trial court
reserved ruling on that issue until after Moses testified.
Defendant never sought to have Moses’s former girlfriend testify
as a witness, and there was no evidence, excluded or otherwise,
that Moses was subsequently arrested or convicted for other
domestic violence incidents.
15
The record accordingly does not support defendant’s claim
of prosecutorial misconduct.
IV. Substantial evidence supports the verdict
We review defendant’s challenge to the sufficiency of the
evidence supporting her conviction under the substantial
evidence standard. Under that standard, we review the record as
a whole in the light most favorable to the judgment to determine
whether it contains evidence that is reasonable, credible, and of
solid value such that a reasonable trier of fact could find
defendant guilty beyond a reasonable doubt. (People v. Johnson
(1980) 26 Cal.3d 557, 578.) In doing so, we do not reweigh the
evidence, resolve conflicts in the evidence, or reevaluate the
credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199,
1206.)
Substantial evidence supports the jury’s verdict. Moses
testified that when defendant intervened between him and
Sanford, Moses and defendant began shoving one another back
and forth. After Moses shoved defendant several feet away from
him, defendant paused, and then approached and stabbed Moses
in the side, damaging his diaphragm.
Lopez’s testimony corroborated in part Moses’s version of
events. Lopez testified that he saw a scuffle between defendant
and Moses. The two were pushing and pulling at each other
while standing on the sidewalk. Lopez did not see any punches
or blows exchanged during the scuffle. Lopez saw defendant and
Sanford run away. He then saw Moses lift his shirt and blood
running down Moses’s side.
On appeal, defendant reiterates her version of the incident,
insisting that she intervened between Moses and Sanford in an
effort to stop the fight, that she merely placed her hand on
16
Moses’s chest, that Moses responded by punching her and
Sanford in the face, and that stabbing Moses was in reasonable
self-defense. The jury rejected defendant’s self-defense claim,
and we do not reweigh the evidence or reevaluate issues of
credibility. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)
Defendant fails to establish any grounds for overturning the
jury’s verdict.
V. Ineffective assistance of counsel
The Sixth Amendment right to assistance of counsel
includes the right to the effective assistance of counsel.
(Strickland v. Washington (1984) 466 U.S. 668, 686-694; see also
Cal. Const., art. I, § 15.) It is the defendant’s burden to
demonstrate that trial counsel was inadequate and that prejudice
resulted. (Strickland v. Washington, at pp. 686-694.) Prejudice is
shown by “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” (Id. at p. 694.) We review an ineffective
assistance of counsel claim de novo. (People v. Taylor (1984) 162
Cal.App.3d 720, 725.)
Defendant fails to sustain her burden of demonstrating
prejudice. For reasons discussed, defendant fails to establish
that she would have obtained a more favorable result had defense
counsel not failed to request CALCRIM No. 3471 or a modified
CALCRIM 3472, to object to the prosecutor’s alleged misconduct,
or to object to the exclusion of evidence concerning Moses’s past
acts of domestic violence.
VI. Cumulative error
Defendant fails to establish any prejudicial error in the
trial court below. There is accordingly no cumulative error that
warrants reversal of the judgment.
17
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
LUI
__________________________, J.
HOFFSTADT
18