People v. Robleto, 2017 Cal. App. Unpub. LEXIS 3600 (CA Ct. App. 2017)
People v. Robleto, 2017 Cal. App. Unpub. LEXIS 3600 (CA Ct. App. 2017)
Court of Appeal of California, First Appellate District, Division Three
May 23, 2017, Opinion Filed
2017 Cal. App. Unpub. LEXIS 3600 | 2017 WL 2242959
Judges: McGuiness, P. J.; Pollak, J., Jenkins, J. concurred.
Opinion by: McGuiness, P. J.
A jury convicted defendant Bernardo Jose Robleto of assault with a deadly weapon and related charges arising out of an incident in which he stabbed a victim multiple times during a fist fight outside of a convenience store. At trial, Robleto claimed he acted in self-defense because he used his knife only after he had tried to stop the fist fight and the victim, who was unarmed, responded with what Robleto characterized as sudden and deadly force.
On appeal, Robleto raises a number of claims of error that he contends prejudicially impacted his self-defense claim. First, he argues the court had a sua sponte duty to instruct jurors that force likely to cause great bodily injury constitutes deadly force within the meaning of the instruction governing when an initial aggressor or mutual combatant may claim self-defense. Second, he claims the prosecutor materially misstated the law by suggesting deadly force necessarily entails the use of a deadly weapon. Third, he argues the court erred in failing to instruct jurors sua sponte to view the defendant’s unrecorded, out-of-court admissions with caution. Robleto claims the cumulative impact of these errors requires reversal, and in his appeal and a related petition for a writ of habeas corpus, he contends he received constitutionally ineffective assistance of counsel as a result of his attorney’s failure to request certain jury instructions or object to the prosecutor’s purported misstatement of the law. Because we conclude these claims of error lack merit, we shall affirm the judgment and summarily deny the habeas corpus petition.
Factual and Procedural Background
In a two-count information, the District Attorney of the City and County of San Francisco charged Robleto with assault with a deadly weapon other than a firearm (Pen. Code,  § 245, subd. (a)(1)) and battery with serious bodily injury (§ 243, subd. (d)). It was alleged as to the assault charge that Robleto inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). As to the battery charge, the district attorney alleged that Robleto had personally used a deadly weapon other than a firearm in the commission of the offense. (§ 12022, subd. (b)(1).)
A jury found Robleto guilty as charged and found the special allegations true. The trial court imposed a five-year sentence, composed of the low term of two years for assault with a deadly weapon (§ 245, subd. (a)(1)), with a consecutive term of three years for the great bodily injury enhancement (§ 12022.7, subd. (a)). The court also imposed but stayed a low term of two years for the battery conviction (§ 243, subd. (d)) and a one-year enhancement for the use of a deadly weapon (§ 12022, subd. (b)(1)).
Robleto timely appealed. While the matter was on appeal, he filed a petition for a writ of habeas corpus claiming he received ineffective assistance of counsel. We consolidated the writ petition with the pending appeal.
At about 11:00 p.m. on September 26, 2011, Allison Fyffe picked up her then-boyfriend, Michael S., at a bar in San Francisco.  During the evening, Michael had consumed two or three beers and had smoked a little marijuana, although it did not appear to Fyffe that Michael was intoxicated when she picked him up.
Fyffe drove Michael in her charcoal Mustang to a convenience store so that Michael could buy some cigarettes. Michael intended to go home to sleep after visiting the store, which was near his home. Fyffe and Michael arrived at the convenience store at around 11:25 p.m. They were in a good mood and sat in the car talking for a while.
As Michael and Fyffe sat in the car, Robleto approached the passenger side, where Michael was seated with the window open. Robleto looked at Michael’s girlfriend and, with an agitated and angry demeanor said, “Nice car.” Michael commented to Fyffe that it seemed strange someone would randomly yell that out. Fyffe also found it odd because a compliment about a person’s car would ordinarily be said in a friendly voice, but she felt Robleto was trying to antagonize Michael and was being flirtatious with her.
Robleto spoke with a person in front of Fyffe’s car and then made eye contact with Michael in a threatening way for an extended period of time. Michael got out of the car to buy cigarettes. He closed the car door pretty hard because it is a heavy door. He also rolled up one of his sleeves as he approached Robleto. Michael ordinarily kept his sleeves rolled up but explained that one of the sleeves had rolled down.
Michael asked Robleto why he was looking into their car and staring at them. Michael testified that, after the two exchanged some words, Robleto told him, “I’m going to kill you, white boy.” As she sat in the car, Fyffe saw Robleto remove a knife from his pocket and hold it behind his back with the blade aimed to the ground. Fyffe yelled, “Mike, he has a knife.” When Michael heard Fyffe scream about the knife, he pushed Robleto to get some separation from him.
After Michael pushed him away, Robleto swung at Michael with the knife. Michael testified that he felt like he was fighting for his life, and could not recall the details of the fight after pushing Robleto. Fyffe testified that Robleto pushed Michael onto the hood of the car and stabbed him at the top of the neck. Robleto and Michael fell to the ground with Michael trying to push Robleto off of him. Fyffe got out of the car and saw Robleto stab Michael three more times in the middle of the back.
Michael backed away from Robleto after being stabbed. Fyffe pulled her car out to separate them and yelled to Michael to get in. Michael got in the car, told Fyffe he had been stabbed, and heard blood rushing into his lung. Fyffe looked out her car window at Robleto, who told her as he held the knife, “Your man brought this upon himself.”
Fyffe was unfamiliar with San Francisco and did not know where the hospital was, so she drove to Michael’s house and called 911 while en route. Michael collapsed upon arriving at the house and was taken to the hospital. He ended up spending nine or ten days in the hospital. He had six stab wounds, a few slashes, and a collapsed lung.
On the date of the incident, Michael was 21 years old, stood a little over five feet, ten inches tall, and weighed about 165 to 170 pounds. Michael testified that he had taken a martial arts class for about one-and-a-half to two years when he was 11 or 12 years old. He took the class to prepare him for football, which he played for two years. He was unarmed when he encountered Robleto.
During Fyffe’s testimony, her 911 call and a video of the incident taken by the convenience store were admitted into evidence and played for the jury.
Robleto testified in his own defense at trial. As of September 26, 2011, he was 38 years old, stood five feet, six inches tall, and weighed 165 pounds. He had never taken a martial arts class or played contact sports. He loved automobiles and claimed to have owned four Mustangs. He had worked clearing fire roads for the Conservation Corps in 2010 and said it was helpful to have a knife with him to be able to cut the line on brush cutters. Although he no longer worked for the Conservation Corps, he continued to carry the knife he purchased while he was working there. He used the knife for various purposes, including as a utility tool, to cut fruit, and for fishing. He had the knife with him on the night of September 26.
Robleto had consumed four or five beers on the evening of the incident and walked to the convenience store to buy more. As he approached the store, he noticed a black Mustang that appeared different from a standard version of the car. He walked by the Mustang and said “nice car” to the male passenger. Robleto claimed that he did not notice the driver. He then walked in front of the car and began talking with a store clerk. He heard a commotion in the car and turned his head. The vehicle’s passenger, Michael, was yelling “motherfucker.” Michael jumped out of the car. According to Robleto, Michael was like a “wild animal, yelling at the top of his lungs,” with his eyes “bugged out” and his nostrils flared. He described Michael’s demeanor as “scary.”
Robleto stepped towards Michael and told him, “Dude, I gave you a compliment.” Michael pointed in the direction of a female in the car and replied, “No, you’re trying to get at my girl.” Robleto told Michael he was not doing that. Even though Michael had come at him like a wild animal, Robleto claimed he approached Michael because he thought he could talk some sense into him.
As the two men were talking, Robleto removed the knife from his pants pocket and held it with his right hand pointing backwards. He claimed that his only reason for doing so was to scare off Michael. However, he did not tell Michael he had a knife and never waved the knife but testified that he thought Michael saw it.
After Robleto removed the knife from his pocket, Fyffe yelled, “He’s got a knife.” Michael rolled up his sleeves and punched Robleto twice in the chest while he held the knife in his hand. Robleto stated that he then put the knife in his jacket pocket and tried to grab Michael’s wrist as they wrestled on the car. He testified that he told Michael to stop fighting, and he claims that he did not threaten Michael or say, “I’m going to kill you, white boy.”
Eventually, Robleto was able to gain control of Michael. As he was on top of Michael, he asked multiple times, “Are you going to stop?” At some point, he allowed Michael to get up. Michael then hit Robleto with blows to the chin and chest. Robleto fell back into the glass window of the store. Robleto testified that he was almost “knocked out” and lost consciousness for “a bit.”
When Robleto regained consciousness, he took his knife out of his jacket pocket. He was able to grab Michael again. He felt weak, tired, and out of breath. He managed to put Michael in between a propane tank and the glass front of the store, and then he stabbed him. Robleto claimed he was not trying to hurt Michael but felt terrified.
After stabbing Michael, Robleto told Fyffe, “Your man attacked me first.” Robleto testified that he never told her that Michael got what he deserved.
An investigator for the public defender’s officer testified that she took photographs of Robleto a little over one week after the incident. The photographs showed that Robleto had multiple bruises on his arms and upper body. Robleto’s former trial counsel testified that the bruises were more purple when he first interviewed Robleto a few days after the incident and were consistent with having been punched.
A bystander testified that he was waiting for a bus about 30 feet from the convenience store when the fight broke out. The first thing he recalled about the incident was a woman yelling, “He stabbed him.” He did not see the Mustang drive up or Robleto walk past it. The bystander observed a man on top of Robleto punching and pushing him. The bystander described the man on top as the aggressor who pushed Robleto into the wall of the store shouting, “I’m fucking you up.” The bystander never saw a knife, did not observe a stabbing, and did not know whether he saw the beginning of the fight. He called 911 and reported that a female was driving a black Mustang and that a white male in the passenger seat had stabbed someone.
1. Sua sponte instruction defining deadly force to include force likely to cause great bodily injury
Robleto asserts that the court erred in failing to instruct jurors sua sponte that force likely to cause great bodily injury is deadly force within the meaning of the instruction governing when an initial aggressor or mutual combatant has a right to defend himself with deadly force. Robleto contends jurors may have reasonably concluded that Michael’s use of fists to punch Robleto constituted force likely to cause great bodily injury but not force likely to kill. The essence of his claim of error is that, in the absence of an instruction defining deadly force, jurors may have mistakenly concluded that Robleto was not entitled to use deadly force to defend himself because they did not understand that force likely to cause great bodily injury constitutes deadly force. As we explain, the contention lacks merit.
The trial court instructed the jury with CALCRIM No. 3470 generally governing the right to self-defense. In relevant part, the instruction as given provides as follows: “Self-defense is a defense to all the crimes charged. The defendant is not guilty of those crimes 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 immediate 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 defendant against that danger; [¶] AND [¶] 3. The defendant used no more force that was reasonably necessary to defend against that danger; [¶] . . . [¶] . . . The defendant must have believed there was imminent danger of bodily injury to himself or an imminent danger that he would be touched unlawfully. Defendant’s belief must have been reasonable and he must have acted because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful self-defense. [¶] . . . [¶] . . . When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed.” (Italics added.) The instruction clarifies that it is the People’s burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense.
The trial court also instructed the jury with CALCRIM No. 3471, which specifies when a mutual combatant or initial aggressor has a right to self-defense.  As given, the instruction provides: “A person who engaged in mutual combat or who starts a fight has a right to self-defense only if; one, he actually and in good faith tried to stop fighting; two, he indicated, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wanted to stop fighting and that he had stopped fighting; and three, he gave his opponent a chance to stop fighting. [¶] If the defendant meets these requirements, he 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 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.” (Italics added.)
In her closing argument, the prosecutor primarily emphasized that a defendant who claims self-defense can use no more force than was reasonably necessary under the circumstances. She stated, “At the end of the day, there is a saying. You don’t bring a knife to a gun fight, right? You don’t bring a knife to a fist fight either.” The prosecutor concluded that Robleto did not act in lawful self-defense because he used more force than was reasonably necessary.
Defense counsel in closing argument focused on CALCRIM No. 3471, which addresses the right to self-defense in a mutual combat situation. Defense counsel first argued that Robleto was entitled to assert self-defense because he had actually and in good faith attempted to withdraw from the fight, only to have Michael punch him and put him in headlock after Robleto allowed Michael to get up. Counsel then argued that Robleto had only used non-deadly force before Michael used such sudden and deadly force that Robleto could not withdraw. According to defense counsel, at that point Robleto had the right to defend himself with deadly force even without having to make an attempt to withdraw.
Robleto does not complain that the trial court erred in instructing the jury with CALCRIM Nos. 3470 and 3471 governing self-defense and, more particularly, the circumstances under which a defendant who was the initial aggressor or who was engaged in mutual combat may claim self-defense. Instead, he claims that because there was substantial evidence Michael punched him with force likely to cause great bodily injury, the court had a sua sponte duty to go beyond these instructions to instruct the jury that the meaning of the term “deadly force” includes force likely to cause great bodily injury.
“In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury’s understanding of the case.” (People v. Martinez (2010) 47 Cal.4th 911, 953.) The duty to instruct may arise when a term has a technical meaning peculiar to the law. (People v. Howard (1988) 44 Cal.3d 375, 408.) But the duty is limited: “‘the trial court cannot be required to anticipate every possible theory that may fit the facts of the case before it and instruct the jury accordingly. . . . It need not instruct on specific points or special theories which might be applicable to a particular case, absent a request for such an instruction.'” (People v. Garvin (2003) 110 Cal.App.4th 484, 488-489.) A defendant who believes an instruction requires clarification to fit the specific facts of the case must generally request a pinpoint instruction.” (Id. at p. 489.)
Here, Robleto claims that “deadly force” has a special legal connotation different from the everyday understanding that the term denotes force likely to cause or capable of causing death. (See People v. Pruett (1997) 57 Cal.App.4th 77, 85 [“The word ‘deadly’ means ‘likely to cause or capable of causing death.'”].) As support for his assertion that the term encompasses force likely to cause great bodily injury, he relies upon a federal case arising in the context of a civil rights claim (Smith v. City of Hemet (9th Cir. 2005) 394 F.3d 689, 705-706), and an Ohio state statute.
Robleto acknowledges that he has found no California law expressly defining deadly force. Instead, he relies upon a number of cases standing for the proposition that lawful self-defense only extends to the use of force necessary to repel an attack and that include the statement, “‘deadly force or force likely to cause great bodily injury may be used 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, italics added; see People v. Clark (1982) 130 Cal.App.3d 371, 380.) He also cites section 197, which specifies when a homicide may be justified. That statute provides, in relevant part, that a homicide is justifiable when “committed in the lawful defense of such person . . . when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury . . . .” (§ 197, subd. (3).) Neither the California cases relied upon by Robleto nor section 197 define deadly force to include force likely to cause great bodily injury. Moreover, the cited authorities do not arise in the context of instructional error and are not germane to the issue of what constitutes deadly force within the meaning of CALCRIM No. 3471, the instruction governing the right of an initial aggressor or mutual combatant to assert a self-defense claim.
Under the circumstances, the definition of deadly force as used in a situation involving an initial aggressor or mutual combat is plainly not a general principle of law giving rise to a sua sponte duty to instruct the jury. Accordingly, we conclude the court did not have a sua sponte duty to instruct the jury on the meaning of deadly force in a situation involving an initial aggressor or mutual combat. If Robleto believed the term required further definition under the specific facts of the case, it was his obligation to request a pinpoint instruction.
Further, it is far from clear that a pinpoint instruction defining deadly force would have been necessary or even appropriate. In assessing a claim of error in jury instructions, we consider the jury instructions as a whole and assume jurors are capable of correlating all of the jury instructions that are given. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) We do not consider a single jury instruction in isolation but view it in the context of the charge and the entire record. (People v. Moore (1996) 44 Cal.App.4th 1323, 1330-1331.) Construed in light of these principles, CALCRIM No. 3470 on self-defense and No. 3471 regarding the right of an initial aggressor or mutual combatant to self-defense adequately instructed the jury on the law of self-defense. Taken together, they capture the principle that any right of self-defense, including a right to self-defense that may be asserted by an initial aggressor or mutual combatant, is limited to the use of such force as is reasonable under the circumstances. The emphasis on reasonableness and proportionality in the instructions was sufficient to inform jurors of the circumstances under which a mutual combatant or initial aggressor may use deadly force in self-defense. 
It is notable that Robleto has not proposed the exact wording of any definitional instruction he believes the court was required to give. The closest he comes is a footnote citing CALJIC No. 5.31, which provided: “An assault with fists does not justify the person being assaulted in using a deadly weapon in self-defense unless that person believes and a reasonable person in the same or similar situation would believe that the assault is likely to inflict great bodily injury upon [him] [her].” But that instruction, if given, would have confused rather than clarified issues for the jury. The instruction places an unwarranted emphasis on fists, which could easily lead to confusion in a mutual combat situation where both parties are using their fists. The instruction might suggest to jurors that both parties to a mutual fist fight are entitled to use deadly force in self-defense. As it was, the jury was properly instructed to focus on the reasonableness of the force used to defend against the danger. The jury would have understood that, regardless of the means by which Michael placed Robleto in danger of suffering great bodily injury, Robleto was justified in using only that force that was reasonable and necessary under the circumstances.
Furthermore, even if the court were required to instruct sua sponte on the meaning of deadly force, any error was harmless. The parties dispute which standard for assessing prejudice applies, with Robleto urging that we must reverse unless the error was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24), and the People arguing that reversal is not required unless the entire record establishes a reasonable probability the error affected the outcome (People v. Watson (46 Cal.2d 818, 836). It is unnecessary for us to decide which standard of prejudicial error applies because the error was harmless regardless of which standard is applied.
Robleto focuses on the bruises he suffered and the supposed fighting experience and physical advantage enjoyed by Michael to suggest that a jury might have reasonably concluded he was faced with the threat of great bodily injury. While it is clear that Robleto sustained injuries in the fight, he points to no authority that would support his claim that stabbing Michael multiple times was a reasonable response under the circumstances. Indeed, his own testimony demonstrates the unreasonableness of his response. He admitted that he drew his knife before the first punch was thrown. Even if one rejects testimony offered by the prosecution that Robleto stabbed Michael at the outset of the fight, it was still Robleto’s testimony that he quickly gained control of Michael. After he purportedly allowed Michael to stand up and was thrown into the glass, he again managed to gain control of the situation by shoving Michael into the space between a propane tank and the glass where he proceeded to stab Michael. Thus, even by Robleto’s own account, it was unnecessary to resort to stabbing Michael in order to respond to the threat posed by Michael.
Robleto’s self-defense claim turned on a narrow interpretation of the facts—specifically, that a mutual fist fight involving non-deadly force suddenly transformed into one in which Michael used his fists in a manner constituting deadly force after Robleto allowed him to get up off the ground. But even if the jury accepted Robleto’s version of events, Michael had hit him multiple times before the sudden and supposed application of deadly force by Michael with his fists. The jury had the benefit of a video of the fight and could determine for itself whether a sudden change in circumstances escalated the danger faced by Robleto and justified the use of deadly force. A jury instruction equating force likely to cause great bodily injury with deadly force would not have changed the fact that Robleto’s decision to stab Michael six times was an unreasonable response to a mutual fist fight.
2. Claim that prosecutor committed misconduct by misstating the law
Robleto contends the prosecutor misstated the law during her rebuttal argument by suggesting that Robleto was not entitled to use deadly force in self-defense unless Michael had used a deadly weapon. He claims there is no interpretation of the facts that would have authorized the jury to find that he acted in self-defense if the jury credited the prosecutor’s argument. As discussed below, Robleto misconstrues the prosecutor’s argument, which was offered to refute defense counsel’s closing argument and constituted a fair comment on the evidence.
As an initial matter, we observe that the issue is forfeited for purposes of Robleto’s direct appeal because his defense counsel did not object to the prosecutor’s argument at trial. (People v. Gonzalez (2011) 52 Cal.4th 254, 305.) Robleto argues that, because the error is of constitutional magnitude, we should exercise our discretion to consider the claim despite the lack of an objection. To avoid any suggestion the purported error violated Robleto’s constitutional rights, and in light of Robleto’s assertion that his trial counsel was ineffective for failing to make an objection, we shall address the merits of the claim. 
“‘A prosecutor’s misconduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.'” (People v. Gonzalez, supra, 52 Cal.4th at p. 305.) When the claim of prosecutorial misconduct is based upon comments made before the jury, “we must view the statements in the context of the argument as a whole” (People v. Dennis (1998) 17 Cal.4th 468, 522), and “‘the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.” (People v. Dykes (2009) 46 Cal.4th 731, 771-772.) “A prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment on the evidence, including reasonable inferences or deductions that may be drawn from the evidence.” (People v. Ledesma (2006) 39 Cal.4th 641, 726.)
As noted, the prosecutor commenced her closing argument by stating that the case was about Robleto’s unreasonable use of force. Toward the end of defense counsel’s closing argument, counsel claimed that Robleto never used deadly force until he was faced with sudden and deadly force when Michael purportedly knocked him unconscious momentarily. Counsel thus urged the jury to find that Robleto was justified in using deadly force as described in CALCRIM No. 3471. In rebuttal, the prosecutor argued that CALCRIM No. 3471 was inapplicable. She stated, “What deadly force did [Michael] have in his possession? The only deadly force that he could be referring to is his fist when he is fighting with Mr. Robleto. [¶] Well, ladies and gentlemen, if his fist is what he is referring to, then Mr. Robleto was using his fist. So either the argument is, if Mr. Robleto is using his fist, and defense counsel is saying that that’s non-deadly force, then [Michael] is using his fist, and that’s non-deadly force. And if both of them are using non-deadly force, then you don’t have the right . . . to escalate the fight and use deadly force. And if he is saying that the defendant—that his fists were deadly force, then you don’t get this instruction at all because it says only non-deadly force so counsel cannot have it both ways, ladies and gentlemen. That’s why this instruction doesn’t apply. He didn’t have the right to use deadly force when he stabbed [Michael] five times.”
Robleto urges that the prosecutor’s argument could be construed by reasonable jurors to mean the use of fists could not constitute deadly force and that Robleto only had the right to use deadly force if confronted with a deadly weapon. The argument is unpersuasive.
When the prosecutor’s statement is placed in context, it is clear that she was responding to defense counsel and arguing the facts of the case to the jury. Her point was a simple one and related back to her central theme that Robleto’s decision to stab Michael was unreasonable under the circumstances. The prosecutor was rebutting defense counsel’s assertion that Robleto did not use deadly force until he stabbed Michael. She was pointing out the inconsistency in defense counsel’s argument. Up until Robleto stabbed Michael, the combatants used nothing other than their fists, if one believes Robleto’s claim that he did not stab Michael until the end of the confrontation. Either the combatants’ use of fists constituted non-deadly force, in which case Robleto had no right to use deadly force in response to Michael using his fists, or the combatants’ use of fists constituted deadly force, in which case Robleto had no right to assert self-defense under CALCRIM No. 3471. Robleto was trying to have it both ways by arguing that he did not use deadly force in fighting Michael with his fists while Michael’s use of fists constituted deadly force, at least after Robleto supposedly allowed Michael to get up off the ground. In light of evidence, including the video of the incident, that demonstrated a mutual fight in which Robleto often had the upper hand, the prosecutor’s argument was a fair comment on the evidence as applied to defense counsel’s closing argument. No reasonable juror would have construed the argument to mean that the use of fists may never constitute deadly force. There was no prosecutorial misconduct.
3. Sua sponte instruction warning jurors to view unrecorded admissions with caution
Michael testified that, before the two had started fighting, Robleto told him, “I’m going to kill you, white boy.” Fyffe testified that, at the conclusion of the fight, Robleto told her, “Your man brought this upon himself.” On appeal, Robleto contends that the court had a sua sponte duty to instruct jurors to view these unrecorded, out-of-court admissions with caution. Presumably, Robleto believes the court should have instructed the jury with CALCRIM No. 358, which advises jurors to consider with caution any out-of-court statement made by the defendant tending to show his guilt “unless the statement was written or otherwise recorded.”
At the time of Robleto’s trial, the court had a sua sponte duty to provide such an instruction. (People v. Slaughter (2002) 27 Cal.4th 1187, 1200.) While this appeal was pending, the Supreme Court abrogated this precedent and held that a court should provide a cautionary instruction only upon request. (People v. Diaz (2015) 60 Cal.4th 1176, 1190-1191 (Diaz).)
The Diaz court reserved judgment on whether its newly announced rule applies retroactively because it found that any error in the case before it was harmless. (Diaz, supra, 60 Cal.4th at p. 1195.) Robleto argues that Diaz should not be applied retroactively. We need not decide the issue of retroactivity because we conclude, like the court in Diaz, that any error in failing to instruct the jury with CALCRIM No. 358 was harmless even assuming the court had a sua sponte duty to give the instruction. We assess prejudice under the standard for state law errors: “[W]hether it is reasonably probable the jury would have reached a result more favorable to defendant had the instruction been given.” (Ibid.)
The purpose of the cautionary instruction “‘is to help the jury to determine whether the statement attributed to the defendant was in fact made . . . .'” (People v. Dickey (2005) 35 Cal.4th 884, 905.) “We examine the record to see whether there was a conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately. [Citation.] Where there is no such conflict in the evidence, but simply a denial by the defendant that he made the statements attributed to him, the failure to give the cautionary instruction is harmless.” (People v. Miranda (2015) 236 Cal.App.4th 978, 990-991; accord, Dickey, supra, at p. 906.)
Here, although the court did not give CALCRIM No. 358, it did instruct the jury with CALCRIM No. 318 regarding the use of out-of-court statements and with CALCRIM No. 226 concerning witness credibility. “These general instructions, like the cautionary instruction, ‘aid the jury in determining whether [the defendant’s extrajudicial statement] was in fact made.'” (Diaz, supra, 60 Cal.4th at p. 1191.) “‘[W]hen the trial court otherwise has thoroughly instructed the jury on assessing the credibility of witnesses, [the courts] have concluded the jury was adequately warned to view their testimony with caution.'” (Id. at p. 1196.)
Moreover, Robleto simply denied threatening Michael or making the statement, “I’m going to kill you, white boy.” He did not quibble with the exact words that were said or the meaning of the statement. In light of his denial, the failure to give a cautionary instruction was harmless. (People v. Miranda, supra, 236 Cal.App.4th at p. 991.)
Robleto likewise denied making the statement attributed to him by Fyffe: “Your man brought this upon himself.” In that instance, he disputed the exact words that he used. He testified that he said, “Your man attacked me first.” Robleto’s attempt to distinguish between the import of the two statements is unavailing. Certainly the prosecutor could, and did, argue that the statement attributed to him by Fyffe was incriminating, but it was also consistent with the defense theory at trial. Robleto admitted stabbing Michael. If, as Robleto claimed, Michael initiated the fight and Robleto only stabbed him in self-defense, then a statement to Fyffe that Michael got what he deserved, while perhaps boastful, was not an admission of criminal responsibility. We conclude it is not reasonably probable the outcome would have been more favorable to Robleto had the jury been instructed to consider with caution Fyffe’s testimony regarding the statement attributed to Robleto.
4. Ineffective Assistance of Counsel
On appeal and in a related habeas corpus petition, Robleto argues that his trial counsel provided constitutionally ineffective assistance of counsel in failing to request certain jury instructions and in failing to object to statements made during the prosecutor’s rebuttal argument. We address these claims in turn after setting forth the principles that guide our review.
A. Governing legal principles
In order to establish a claim of ineffective assistance of counsel, a defendant bears the burden of demonstrating both that counsel’s performance fell below an objective standard of reasonableness (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland)) and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Id. at p. 694; People v. Ledesma (2006) 39 Cal.4th 641, 746.) “‘”[If] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there could simply be no satisfactory explanation,” the claim on appeal must be rejected.'” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
When a defendant raises an ineffective assistance of counsel claim in a petition for a writ of habeas corpus, the court must first determine whether the petition’s factual allegations, if taken as true, entitle the petitioner to relief. (See People v. Duvall (1995) 9 Cal.4th 464, 474-475.) “If no prima facie case for relief is stated, the court will summarily deny the petition.” (Id. at p. 475.)
B. Failure to request instruction defining deadly force to include force likely to cause great bodily injury
Robleto contends his trial counsel was ineffective in failing to request a jury instruction defining deadly force to include force likely to cause great bodily injury. In his direct appeal, he claims there is no conceivable tactical reason for failing to request the instruction. In his habeas corpus petition, he reiterates the contention and includes evidence that he asked trial counsel to sign a declaration identifying the tactical reasons for the decision not to request an instruction defining deadly force. Trial counsel declined to sign the declaration and stated in a letter that it was a tactical decision. Trial counsel did not elaborate or identify the tactical reason.
According to Robleto, it was professionally unreasonable for his trial counsel not to request the instruction. We disagree. As discussed above, it is far from clear that defining deadly force to include force likely to cause great bodily injury is a correct statement of California law as applied to CALCRIM No. 3471. Notably, Robleto cannot cite to a single California case requiring such an instruction in any context, much less in a situation involving an initial aggressor or mutual combatant who claims the right to use deadly force in self-defense. A lawyer is not considered ineffective for failing to make an unmeritorious request. Further, it is conceivable that trial counsel did not want to suggest that Robleto’s use of his fists before he stabbed Michael constituted force likely to cause great bodily injury—and therefore deadly force—that would render him ineligible to claim self-defense under CALCRIM No. 3471. A pinpoint instruction may have caused greater confusion than clarification. Consequently, there is at least a conceivable tactical reason for declining to request the instruction.
Trial counsel’s refusal to sign a declaration identifying the tactical basis for his decision does not change the analysis. We are still left with a silent record as to the specific reason for trial counsel’s decision. We cannot assume trial counsel had no tactical reason for his decision when he wrote that he had one and there are is at least a conceivable tactical reason for declining to request an instruction defining deadly force. Consequently, Robleto cannot satisfy the deficient performance prong of the Strickland analysis.
In any event, Robleto cannot show prejudice under the second prong of the Strickland analysis for the reasons contained in section 1.B, ante.
C. Failure to request instruction that fighting with fists could constitute deadly force
Robleto’s defense turned on the jury finding that Michael used deadly force in the fist fight with Robleto. He contends his trial counsel was ineffective in failing to request an instruction specifying that fighting with fists could be conducted in a fashion that would constitute deadly force. This claim appears only in Robleto’s direct appeal and not in his habeas corpus petition.
Left with a record that sheds no light on why counsel failed to request an instruction, we must reject the ineffective assistance claim unless there could be no conceivable explanation for counsel’s inaction. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 266.) Among other things, counsel may not have wanted to highlight the fact that use of fists may constitute deadly force, because the jury might have reasonably concluded that Robleto used his fists in a manner constituting deadly force even before he used his knife. In such a case, Robleto would not be allowed to assert self-defense as a mutual combatant or initial aggressor under CALCRIM No. 3471. Thus, emphasizing the use of fists may have been to Robleto’s disadvantage. On this record, we must reject the ineffective assistance claim because we cannot conclude there is no conceivable tactical reason for counsel’s inaction.
The claim also fails the prejudice prong of the Strickland test for the reasons cited in section 1.B, ante. Even if the jury had been instructed that Michael’s fists could be considered deadly force, the question for the jury would still have been whether Robleto’s response of stabbing Michael was reasonable under the circumstances. It is not reasonably probable the jury would have reached a different outcome if such an instruction had been given.
D. Failure to object to prosecutor’s purported misstatement of the law
On appeal and in his habeas corpus petition, Robleto contends that his trial counsel was ineffective in failing to preserve the claim that it was misconduct for the prosecutor to suggest that Robleto was not entitled to use deadly force in self-defense unless Michael had used a deadly weapon. As set forth in the habeas corpus petition, trial counsel declined to sign a declaration provided to him by appellate counsel and stated in a letter that his decision not to object to the prosecutor’s argument was tactical.
In light of our conclusion in section 2, ante, that the prosecutor’s statements in her rebuttal argument did not constitute misconduct, Robleto’s ineffective assistance claim premised on a failure to object to those statements necessarily fails.
5. Cumulative error
As a final matter, Robleto argues that the cumulative impact of the various errors he asserts requires that we reverse his convictions. Because we have concluded there was no error, or that Robleto suffered no prejudice even if there was error, we reject the contention that the cumulative effect of any errors requires reversal. (See People v. Rountree (2013) 56 Cal.4th 823, 860 [no cumulative prejudice where “there was no error to accumulate”]; People v. Homick (2012) 55 Cal.4th 816, 875, fn. 35 [rejecting a claim of cumulative prejudice by finding that “[t]he occasional evidentiary error defendant points to could not have had a prejudicial impact sufficient to require reversal”].)
The judgment is affirmed. The petition for a writ of habeas corpus is summarily denied.
McGuiness, P. J.
We concur: Pollak, J.Jenkins, J.
1. All further statutory references are to the Penal Code unless otherwise specified.
2. Pursuant to rule 8.90(b)(4) of the California Rules of Court, we refer to the victim by his first name and last initial in order to protect his privacy.
3. Defense counsel did not object to CALCRIM No. 3471 other than arguing the court should omit the phrase “or who starts a fight” from the instruction. Counsel contended there was no evidence that Robleto started the altercation. The court overruled the objection, finding there was sufficient evidence that Robleto started the fight and that it would be up to the jury to decide the issue.
4. Robleto claims that CALCRIM No. 3471 constitutes a limit on the right to self-defense and that jurors would not even consider the broader self-defense provisions of CALCRIM No. 3470 unless they first determined that the defendant had a right to use deadly force in response to sudden and deadly force. Thus, he claims that language in CALCRIM No. 3470 regarding the reasonable use of force fails to correct the defect in CALCRIM No. 3471. We disagree. Robleto’s analysis looks at the instruction in isolation and ignores the broader context of the instructions on self-defense.
5. We address all claims of ineffective assistance of counsel below.