P. v. Yanaga

Filed 9/25/17 P. v. Yanaga CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
THOMAS NOLAN YANAGA,
Defendant and Appellant.
2d Crim. No. B267571
(Super. Ct. No. 15F-05954)
(San Luis Obispo County)
Thomas Nolan Yanaga appeals from the judgment
entered after a jury had convicted him of second degree murder.
(Pen. Code, §§ 187, subd. (a), 189.)1 The jury found true an
allegation that he had personally and intentionally discharged a
firearm causing death. (§ 12022.53, subd. (d).) He was sentenced
to prison for 40 years to life.
Appellant is half Japanese. He contends that the
trial court erroneously excluded evidence of white supremacist
1 All statutory references are to the Penal Code unless
otherwise stated.

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tattoos on the bodies of the deceased and a complaining witness,
Ashley Moss. His theory is that the victim and the witness were
biased against Japanese people. In addition, he argues that the
trial court erroneously modified a standard jury instruction on
the reduction of murder to manslaughter and failed to instruct
sua sponte that, when he shot the deceased, he is presumed to
have reasonably feared imminent death or great bodily injury.
We affirm.
Facts
Ashley Moss and appellant were friends. They
frequently used methamphetamine together. Moss was living
rent-free in a spare bedroom in the home of appellant and his
wife, Joyce Yanaga (Joyce).
Moss and the deceased, Marshall Savoy, had a dating
relationship. Savoy visited Moss at appellant’s home when
appellant was present. Appellant told Savoy, “‘You can come over
any time you want.’” “‘You don’t have to call, just come over.’”
After 10:30 p.m. on March 13, 2015, Savoy went to
the front door of appellant’s home. Appellant opened the door,
and Savoy asked if Moss were there. Appellant replied that Moss
was inside a trailer, which was about 50 feet away from the front
door of appellant’s home. Appellant walked with Savoy to the
trailer and knocked on its door. After Moss had opened the door,
appellant returned home.
Inside the home, Joyce (appellant’s wife) walked from
the kitchen through a screen door into the attached garage to
smoke a cigarette. Appellant followed her into the garage. They
started arguing. Joyce “blew a gasket” and became “very angry.”
She said she wanted a divorce. Appellant yelled at her. The
argument continued for 15 or 20 minutes.

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Joyce heard “a loud banging on the outside of the
[metal] roll-up garage door.” She testified: “And then I heard the
front door open and . . . someone walking through the house. And
the next thing I knew, the [screen] door into the garage came
flying open and there was [Savoy] . . . who . . . walked past me
and went straight over to [appellant].” Savoy “smelled like beer.”
“He came in with a purpose. He was irritated. He seemed a little
upset.”
Appellant was sitting in a chair in the garage. Savoy
“told [him] to quit yelling. . . . [Savoy] was tired of hearing him
yell at everybody all the time. . . . ‘Don’t yell at your wife.
Respect her. Don’t yell at her. Quit dissing your wife, dissing
women. You’re a dog. I can beat you down.’” Savoy threatened
“to smash [appellant’s] head in.” He “was starting to flex his
arms and . . . move closer to [appellant]. His face was red. Just,
like, pumped. . . . [L]ike trying to provoke [appellant] to fight
him, and [appellant] wouldn’t say anything and wouldn’t move.”
Joyce continued: Savoy took off his shirt, “wadded” it
up, and threw “it back and forth between his hands.” He was
“trying to provoke” appellant, but appellant just “sat there.”
Savoy threw the shirt at appellant, but it landed to the side of
him. Appellant stood up and walked to the screen door that led
from the garage into the kitchen. He pressed a button that
opened the metal roll-up garage door. After the door had opened,
appellant said to Savoy in a “stern” voice, “‘Please get off my
property.’” Savoy said he would leave when appellant gave him
the keys to appellant’s car. Appellant refused to give him the
keys and walked into the kitchen. Savoy followed behind
appellant. Appellant repeatedly said to Savoy, “‘Get out of my
house.’”

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Appellant was standing inside the kitchen when
Savoy lunged at him. Joyce heard several loud “pops.” Savoy
spun around and went back into the garage. Appellant said to
Joyce, “‘I shot the gun. Call 911.’”
Deputy sheriffs responded to Joyce’s 911 call. They
found Savoy lying in the driveway of appellant’s home. Appellant
told the deputies, “‘He charged me. . . . The gun’s in the house.’”
The gun was a .22-caliber semi-automatic pistol.
Appellant was pronounced dead at the scene. The
cause of death was multiple gunshot wounds.
Ashley Moss, Savoy’s girlfriend, provided a version of
events that differed from Joyce’s version. Moss testified: While
standing at the doorway of the trailer, she saw Savoy walk
toward the front door of appellant’s home. Appellant and Joyce
were yelling inside. Savoy did not bang on the roll-up garage
door. After Savoy had entered the home, she heard him say:
“‘You don’t treat women like that. You treat women with respect.
I have daughters.’” Moss heard appellant and Savoy yelling at
each other. She went to the back of the home and looked through
the kitchen window. She did not see Savoy. She saw appellant
grab a gun that was on the kitchen island. He inserted a
cartridge clip into the gun. With a “happy smirk” on his face, he
walked out of the kitchen toward the garage. Appellant said,
“‘Hey, Marshall.’” Moss could not see appellant at this point. She
heard gunshots. She saw appellant “run back in or walk back
inside yelling at his wife to call 911 and tell them that there was
an intruder.”
The night before Savoy was shot, Moss heard
appellant say, “‘I have always wondered what it would be like to
kill somebody.’” That same night, Wesley Hart, Moss’s and

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Savoy’s friend, heard appellant say: “‘I just want to kill someone.
I just want to shoot somebody.’” On January 1, 2015, about two
months before the shooting, appellant threatened Maddison
McCullough, “‘I’ll kill you on my property and say it’s an intruder
and get away with it.’” McCullough was Savoy’s close friend.
Appellant did not testify. Shortly after the shooting,
he made a statement to the police in which he described the
events leading to the shooting. His description is largely
consistent with Joyce’s testimony. According to appellant, he was
inside the garage with Joyce when appellant came “bargin’ in.”
Without knocking, Savoy “burst through the [screen] door [into
the garage], gets in my face.” He “[j]ust starts mouthin’ off about,
you know, just starts ramblin’.” He “tell[s] me he was gonna bash
my head in.” Appellant thought Savoy “was gonna smack me in
the head and fuckin’ crush my skull in.” “And, then all of a
sudden he charges me.” Appellant fired the gun three or four
times.
Exclusion of Savoy’s “White Power” Tattoos
Before trial, appellant sought to admit photographs
depicting tattoos on Savoy’s arms. The back of one arm was
tattooed “white.” The back of the other arm was tattooed
“power.” Defense counsel noted that appellant “is half Japanese.”
Thus, “when Mr. Savoy takes off his shirt . . . everyone can see
the ‘white power’ coming at you . . . . He didn’t take off the white
shirt just to show [appellant] how buff he is and he’s ready to
fight; he wanted to show him who was coming at him.”
The court replied that “[n]ot in a million years” does
appellant look Asian. It asked defense counsel if Savoy had “ever
made some kind of anti-Asian statement or used a slur towards
[appellant].” Counsel responded, “No.” The court declared: “I

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think you’re trying to bias the jury on an issue that’s not really
here.” “I’m not going to allow any photographs of Mr. Savoy’s
white power tattoos, as despicable as they may be. I think it’s
more prejudicial than probative.” “This is, in the court’s opinion,
. . . not a racially motivated case.”
Appellant contends that, in excluding the white
power tattoos, the trial court abused its discretion. The court
acted pursuant to Evidence Code section 352, which provides,
“The court in its discretion may exclude evidence if its probative
value is substantially outweighed by the probability that its
admission will . . . create substantial danger of undue prejudice . .
. .” “‘The “prejudice” referred to in Evidence Code section 352
applies to evidence which uniquely tends to evoke an emotional
bias against the defendant [or victim] and which has very little
effect on the issues. . . .’” (People v. Karis (1988) 46 Cal.3d 612,
638.)
“A trial court’s exercise of discretion under section
352 will be upheld on appeal unless the court abused its
discretion, that is, unless it exercised its discretion in an
arbitrary, capricious, or patently absurd manner. [Citations.]”
(People v. Thomas (2012) 53 Cal.4th 771, 806.) The trial court did
not abuse its discretion. The tattoos were extremely prejudicial.
Their admission would have “evoked an emotional bias” against
Savoy. (People v. Karis, supra, 46 Cal.3d at p. 638.) The tattoos
had little, if any, probative value. There is no evidence that
Savoy’s threatened assault was racially motivated. Savoy never
uttered a racial slur. Defense counsel did not claim that Savoy
had deliberately displayed the tattoos on the back of his arms so
that appellant would “see the ‘white power’ coming at” him. In
his statement to the police, appellant mentioned nothing about

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the tattoos. Nor did he say that Savoy was prejudiced against
him because of his Japanese ancestry. The court properly took
into consideration its own perception that “not in a million years”
does appellant look Asian. Thus, there is no evidentiary basis for
appellant’s assertion, “In terms of what [appellant] actually and
reasonably thought, Savoy’s act of taking off his shirt while
attacking [appellant] was no different than had he shouted out
‘white power.’”
Because of the lack of probative value of the tattoo
evidence, we reject appellant’s contention that the trial court’s
ruling deprived him of his constitutional right to a meaningful
opportunity to present a complete defense.
Exclusion of Moss’s White Supremacist Tattoo and Views
Before trial, appellant sought to admit evidence that
Moss had been tattooed with the number “1488,” a white
supremacist symbol. Defense counsel explained that the number
14 refers to a 14-word sentence authored by a white supremacist
“who killed [a] Jewish talk show host.” The number 8 “refers to
the eighth letter of [the] English alphabet, which is H; and 88
represents HH, Heil Hitler.” Counsel claimed that the tattoo was
relevant because it showed “bias against a racial group.”
Pursuant to Evidence Code section 352, the trial
court excluded the evidence because “it’s more prejudicial than
probative.” The court said, “I’m not going to allow you to cross-
examine her on any white power issues.”
Appellant claims that the trial court abused its
discretion. He asserts: “Evidence of Moss’s tattoo would have
shown that she subscribed to white supremacist views, so much
so that she chose to permanently mark her body with a white
supremacist symbol. This, in turn, would have a tendency to

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show that she had a bias against non-white people, including
[appellant], whose last name [Yanaga] unequivocally signaled his
Japanese origin.” (See People v. Williams (1991) 228 Cal.App.3d
146, 150 [“A complaining witness may be asked questions that
inferentially establish a prejudice against the race to which the
defendant belongs”]; In re Anthony P. (1985) 167 Cal.App.3d 502,
511-513.)
The trial court did not abuse its discretion. The
tattoo was extremely inflammatory and had minimal, if any,
probative value as to Moss’s credibility. The record is devoid of
evidence that she was prejudiced against appellant because of his
Asian ancestry. In his reply brief appellant acknowledges that,
“independent of her bias in favor of Savoy,” there is no evidence
that Moss was biased against appellant. “Instead, the only
evidence showed she was not biased.” Appellant notes: “[T]he
state of the evidence was that ‘Moss and appellant were friendly
and . . . appellant never behaved inappropriately toward her.
Moss was also being helped by appellant, who provided her a
place to stay.’” Moss may not even have known that appellant is
of Asian ancestry or that his last name is Japanese. The trial
court opined that appellant does not look Asian. Thus, based on
her white supremacist tattoo, no reasonable juror would have
concluded that Moss was so racially biased against appellant that
she would testify falsely against him.
Moreover, the trial court did not prohibit appellant
from cross-examining Moss on racial bias against Asians. It
prohibited him from cross-examining her “on any white power
issues,” i.e., issues concerning the belief that whites are superior
to and should exert power over other races. Appellant wrongly
contends that, “[b]y ruling that [he] could not refer to Moss’s

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tattoos . . . or to her white supremacist views generally, the trial
court precluded [him] from questioning Moss about her racial
bias against non-whites like [appellant].” Appellant could have
cross-examined Moss about racial bias against Asians without
referring to her tattoo or “white power issues.”
We reject appellant’s claim that the trial court’s
ruling violated his constitutional right to confront and cross-
examine witnesses against him. “‘[A] trial court
may restrict cross-examination on the basis of the well-
established principles of Evidence Code section 352, i.e.,
probative value versus undue prejudice. [Citation.] There is no
Sixth Amendment violation at all unless the prohibited cross-
examination might reasonably have produced a significantly
different impression of credibility.’ [Citations.]” (People v.
Ardoin (2011) 196 Cal.App.4th 102, 119.) Cross-examination of
Moss about her white supremacist tattoo and “white power
issues” would not “‘reasonably have produced a significantly
different impression of [her] credibility.’” (Ibid.)
We also reject appellant’s claim that the trial court’s
ruling denied him a fair trial in violation of due process.
“Ordinarily, proper application of the statutory rules of evidence
does not impermissibly infringe upon a defendant’s due process
rights. [Citations.]” (People v. Ardoin, supra, 196 Cal.App.4th at
p. 119.)
Erroneous Modification of Jury Instructions
The trial court gave CALCRIM No. 570 on the
reduction of murder to voluntary manslaughter where the
defendant killed because of a sudden quarrel or in the heat of
passion (hereafter sufficient provocation). It also gave CALCRIM
No. 571 on the reduction of murder to voluntary manslaughter

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where the defendant killed in imperfect self-defense.2 The last
paragraph of CALCRIM No. 570 provides: “The People have the
burden of proving beyond a reasonable doubt that the defendant
did not kill as the result of a sudden quarrel or in the heat of
passion. If the People have not met this burden, you must find
the defendant not guilty of murder.” (Italics added.) The last
paragraph of CALCRIM No. 571 provides: “The People have the
burden of proving beyond a reasonable doubt that the defendant
was not acting in []imperfect self-defense . . . . If the People have
not met this burden, you must find the defendant not guilty of
murder.” (Italics added.) In the last sentence of both
paragraphs, the trial court struck the word “murder” and
replaced it with the word “manslaughter.”3
2 “An instance of imperfect self-defense occurs when a
defendant acts in the actual but unreasonable belief that he or
she is in imminent danger of great bodily injury or death.
[Citation.] Imperfect self-defense differs from complete self-
defense, which requires not only an honest but also a reasonable
belief of the need to defend oneself. [Citation.] It is well
established that imperfect self-defense is not an affirmative
defense. [Citation.] It is instead a shorthand way of describing
one form of voluntary manslaughter. [Citation.]” (People v.
Simon (2016) 1 Cal.5th 98, 132.)
3 The original instructions said “murder,” not
“manslaughter.” Immediately after the court had completed
reading the original instructions to the jury, defense counsel
asked to approach the bench. The bench conference was not
reported. The settled statement on appeal says: “At the bench
conference . . . , the attorneys and Judge Trice recognized a
typographical error at the end of the reading of CALCRIM 570
and 571. The parties agreed that both instructions should have
ended with the word ‘manslaughter’ instead of the word

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The modification was erroneous. “[I]f the fact finder
determines the killing was intentional and unlawful, but is not
persuaded beyond reasonable doubt that [sufficient] provocation
(or imperfect self-defense) was absent, it should acquit the
defendant of murder and convict him of voluntary manslaughter.
[Citations.]” (People v. Rios (2000) 23 Cal.4th 450, 462.)
Appellant argues that the modification was reversible error
because it “foreclosed a guilty verdict on voluntary manslaughter,
forcing the jury to make an all-or-nothing choice between murder
or acquittal. The error was equivalent to not instructing the jury
at all on voluntary manslaughter.” (Italics added.)
“A challenged instruction is not viewed ‘“in artificial
isolation,”’ but is considered in the context of the instructions as a
whole and the entire record. [Citation.] We are . . . obligated to
regard the [jury] as intelligent and capable of understanding and
correlating all instructions they are given. [Citation.]” (People v.
Mehserle (2012) 206 Cal.App.4th 1125, 1155, fn. omitted; see also
Middleton v. McNeil (2004) 541 U.S. 433, 437 [124 S.Ct. 1830,
158 L.Ed. 2d 701] (Middleton) [“‘“[A] single instruction to a jury
may not be judged in artificial isolation, but must be viewed in
the context of the overall charge”’”].)
“[T]he instructions were at worst ambiguous because
they were internally inconsistent.” (Middleton, supra, 541 U.S.
at p. 438.) “When reviewing ambiguous instructions, we inquire
whether the jury was ‘reasonably likely’ to have construed them
in a manner that violates the defendant's rights. [Citation.]
‘murder.’” Following the bench conference, the court instructed
the jury that “murder” should be replaced with “manslaughter.”
On the instructions provided to the jury in the jury room, a line
was drawn through “murder.” Someone printed “manslaughter”
next to “murder.”

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Applying the same standard to the conflicting instructions at
issue here, we conclude it is not reasonably likely the jury
determined the [voluntary manslaughter] instructions meant
nothing at all.” (People v. Rogers (2006) 39 Cal.4th 826, 873.)
The instructions as a whole made clear that the jury
should acquit appellant of murder, not voluntary manslaughter,
if the People failed to carry their burden of proving beyond a
reasonable doubt that he had not killed in imperfect self-defense
or because of sufficient provocation. CALCRIM Nos. 570 and 571
correctly provided: “A killing that would otherwise be murder is
reduced to voluntary manslaughter if the defendant killed” in
imperfect self-defense or because of sufficient provocation. The
instructions listed the elements of sufficient provocation and
imperfect self-defense. Furthermore, the court gave CALCRIM
No. 522, which provided: “Provocation may reduce a murder
from murder to manslaughter. The weight and significance of
the provocation, if any, are for you to decide. [¶] Consider the
provocation in deciding whether the defendant committed murder
or manslaughter.” The court also gave CALCRIM No. 3517,
which informed the jury that if it found appellant not guilty of
murder, it could convict him of the “lesser crime” of voluntary
manslaughter.
This case is similar to Middleton, supra, 541 U.S.
433. There, the defendant was convicted in California of second
degree murder. On appeal, he contended that the trial court had
erroneously instructed the jury on imperfect self-defense. The
challenged instruction provided, “‘“An ‘imminent’ peril is one that
is apparent, present, immediate and must be instantly dealt
with, or must so appear at the time to the slayer as a reasonable
person.”’” (Id. at p. 435, italics added.) The italicized language

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had been added to the standard instruction and was erroneous.
There is no “reasonable person” requirement for imperfect self-
defense. (See People v. Por Ye Her (2010) 181 Cal.App.4th 349,
353 [actual belief in need to defend based on unreasonable belief
in imminent danger of death or great bodily injury is “sufficient
to transform perfect self-defense into imperfect self-defense”].)
The California Court of Appeal acknowledged the
instructional error but upheld the defendant’s conviction. It
reasoned: “‘[R]eversal is not required because “[e]rror cannot be
predicated upon an isolated phrase, sentence or excerpt from the
instructions since the correctness of an instruction is to be
determined in its relation to the other instructions and in light of
the instructions as a whole.” Here, when all of the jury
instructions on voluntary manslaughter and imperfect self-
defense, are considered in their entirety, it is not reasonably
likely that the jury would have misunderstood the requirements
of the imperfect self-defense component of voluntary
manslaughter. . . .’” (Middleton, supra, 541 U.S. at pp. 435-436.)
The defendant sought federal habeas relief. “The
Ninth Circuit held that the erroneous . . . instruction ‘eliminated’
[defendant’s] imperfect self-defense claim . . . .” (Middleton,
supra, 541 U.S. at p. 437.) The United States Supreme Court
reversed the Ninth Circuit. It noted that, on at least three
occasions, the instructions had correctly informed the jury of the
elements of imperfect self-defense. “Given three correct
instructions and one contrary one, the state court did not
unreasonably apply federal law when it found that there was no
reasonable likelihood the jury was misled.” (Id. at p. 438.)
The Supreme Court’s reasoning applies to the
erroneous substitution of “murder” for “manslaughter” in the last

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sentence of the last paragraphs of CALCRIM Nos. 570 and 571.
In view of the multiple correct instructions on the reduction of
murder to voluntary manslaughter, it is not reasonably likely
that the error led the jury to misapply the law and violate
appellant’s rights.
We reject appellant’s claim that the “reasonable
likelihood” test is inapplicable because the instructions’
substitution of “manslaughter” for “murder” is “facially
erroneous.” The instruction in Middleton was also facially
erroneous, but the Supreme Court approved the application of
the “reasonable likelihood” test. Relying on Middleton, in People
v. Mehserle, supra, 206 Cal.App.4th at p. 1155, fn. 18, the Court
of Appeal stated, “Defendant erroneously argues the ‘reasonable
likelihood’ test does not apply when the instruction is ‘facially
incorrect.’ [Citation.]”
Appellant contends that, “[b]y mis-instructing the
jury on voluntary manslaughter, the trial court also mis-
instructed the jury on an element of murder” because “the
absence of provocation or imperfect self-defense is an element of
murder. Consequently, the erroneous instruction lightened the
prosecution’s burden to prove murder.”
The contention is without merit. The absence of
provocation or imperfect self-defense is not an element of murder.
“[P]rovocation and imperfect self-defense, though they do not
justify or excuse an intentional . . . homicide, mitigate the offense
by negating the murder element of malice, and thus limit the
crime to manslaughter.” (People v. Rios, supra, 23 Cal.4th at p.
454.) “If the issue of provocation or imperfect self-defense is . . .
‘properly presented’ in a murder case [citation], the People must
prove beyond reasonable doubt that these circumstances

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were lacking in order to establish the murder element of malice.
[Citations.]” (Id. at p. 462.) Here, CALCRIM No. 570 instructed
the jury, “The People have the burden of proving beyond a
reasonable doubt that the defendant did not kill as the result of a
sudden quarrel or in the heat of passion.” CALCRIM No. 571
instructed, “The People have the burden of proving beyond a
reasonable doubt that the defendant was not acting in []imperfect
self defense . . . .” The instructions, therefore, did not lighten the
prosecution’s burden to prove murder. By finding appellant
guilty of murder, the jury necessarily found that the People had
met their burden of proving beyond a reasonable doubt that he
did not kill in imperfect self-defense or as the result of a sudden
quarrel or in the heat of passion.
Alleged Duty to Give CALCRIM No. 3477 Sua Sponte
Appellant argues that the trial court had a duty to
instruct the jury sua sponte pursuant to CALCRIM No. 3477.
The instruction provides that, if the defendant used deadly force
against an intruder inside the defendant’s home, it is presumed
that the defendant reasonably feared imminent peril of death or
great bodily injury if the intruder had unlawfully and forcibly
entered the home and the defendant knew or reasonably believed
that the entry had been unlawful and forcible. The presumption
is rebuttable. To overcome the presumption, “the People must
prove that the defendant did not have a reasonable fear of
imminent death or injury . . . when [he] used force against the
intruder. If the People have not met this burden, you must find
the defendant reasonably feared death or injury.” (Ibid.)
CALCRIM No. 3477 is based on section 198.5, which
provides: “Any person using force intended or likely to cause
death or great bodily injury within his or her residence shall be

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presumed to have held a reasonable fear of imminent peril of
death or great bodily injury to self, family, or a member of the
household when that force is used against another person, not a
member of the family or household, who . . . has unlawfully and
forcibly entered the residence and the person using the force
knew or had reason to believe that an unlawful and forcible entry
occurred.” (§ 198.5.)
In People v. Owen (1991) 226 Cal.App.3d 996, the
appellate court considered whether the trial court had a duty to
instruct sua sponte pursuant to section 198.5. The appellate
court concluded, “[T]he [trial] court had no sua sponte duty to
give an instruction based on section 198.5 because the jury was
adequately instructed on the law pertinent to the facts of the
case, including that encompassed in section 198.5, by the
instructions given.” (Id. at p. 1005.) The appellate court
explained: “The effect of the [section 198.5] presumption is to
impose upon the People the burden of proof as to the
nonexistence of the presumed fact [i.e., the defendant’s
reasonable fear of imminent peril of death or great bodily injury].
(Evid. Code, § 606.) The burden, therefore, was on the People to
prove beyond a reasonable doubt that defendant did not have a
reasonable fear of imminent peril of death or injury . . . when he
killed the victim. [Citations.] However, this burden already
rested upon the prosecution independently of the presumption
created by section l98.5 - and the jury was so instructed in the
instant case.” 4 (Id. at p. 1005.)
4 But see People v. Silvey (1997) 58 Cal.App.4th 1320, 1334-
1337 (conc. & dis. opn. of Wallin, Acting P.J., disagreeing with
Owen). See also Judd v. Lamarque (E.D. Cal., Mar. 22, 2007, No.
2:02-cv-1083-JKS) 2007 U.S.Dist. Lexis 21948, at *13, fn. 4,

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We need not decide whether Owen was correctly
decided or whether it is distinguishable. If the trial court
erroneously failed to give CALCRIM No. 3477 sua sponte, “it is
not reasonably probable that a result more favorable to
[appellant] would have been reached in the absence of the error.”
(People v. Watson (1956) 46 Cal.2d 818, 837; see People v. Guiton
(1993) 4 Cal.4th 1116, 1130 [error in state law is “subject to the
traditional Watson test”]; People v. Randle (2005) 35 Cal.4th 987,
1003, overruled on another ground in People v. Chun (2009) 45
Cal.4th 1172, 1200-1201 [“Any error in failing to instruct on
imperfect defense of others is state law error alone, and thus
subject . . . to the harmless error test articulated in People v
Watson”].)
Any error was harmless under the Watson test
because the jury rejected the theory of imperfect self-defense and
convicted appellant of murder. Pursuant to CALCRIM No. 571,
the trial court instructed on imperfect self-defense as follows: “A
killing that would otherwise be murder is reduced to voluntary
manslaughter if the defendant killed a person because he acted in
[]imperfect self-defense . . . . [¶] [¶] The defendant acted in
[]imperfect self defense . . . if: [¶] 1. The defendant actually
believed that []he . . . was in imminent danger of being killed or
suffering great bodily injury; AND [¶] 2. The defendant actually
believed that the immediate use of deadly force was necessary to
defend against the danger; BUT [¶] 3. At least one of those
beliefs was unreasonable. [¶] . . . [¶] The People have the burden
of proving beyond a reasonable doubt that the defendant was not
acting in []imperfect self-defense . . . .” (Italics added.)
discussing Owen and the Silvey dissent.

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We presume that the jury followed this instruction.
(People v. Homick (2012) 55 Cal.4th 816, 851.) Thus, by
convicting appellant of murder, the jury necessarily found that
the People had met their burden of proving beyond a reasonable
doubt that appellant was not acting in imperfect self-defense, i.e.,
he did not actually believe that he was in imminent danger of
death or great bodily injury and that the immediate use of deadly
force was necessary to defend against the danger. (CALCRIM
No. 571.) It is therefore not reasonably probable that, had the
jury been instructed on the presumption of CALCRIM No. 3477,
it would have made the contradictory finding that appellant had
reasonably feared imminent danger of death or great bodily
injury. A defendant cannot reasonably fear what he does not
actually fear.
Appellant would have had a stronger case of
prejudicial error had the jury convicted him of voluntary
manslaughter based on an actual but unreasonable fear of
imminent danger of death or great bodily injury. In such
circumstances, CALCRIM No. 3477’s presumption of reasonable
fear arguably could have affected the outcome. (See CALCRIM
No. 571 [“The difference between complete self-defense and
imperfect self-defense depends on whether the defendant’s belief
in the need to use deadly force was reasonable”].) Here, the jury
found that appellant neither reasonably nor unreasonably
believed in the need to use deadly force.
Appellant claims that his counsel was ineffective for
failing to request CALCRIM No. 3477. The standard for
evaluating a claim of ineffective counsel is set forth in Strickland
v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80
L.Ed.2d 674]: “First, [appellant] must show that counsel’s

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performance was deficient. . . . Second, [appellant] must show
that the deficient performance prejudiced the defense.”
“[A] court need not determine whether counsel's
performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.”
(Strickland v. Washington, supra, 466 U.S. at p. 697.) To prove
prejudice, appellant “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” (Id. at p. 694.) As explained above, there is no
reasonable probability that the result would have been different
had the trial court instructed the jury pursuant to CALCRIM No.
3477.
Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.

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John A. Trice, Judge
Superior Court County of San Luis Obispo
______________________________
Dwyer & Kim and Jin H. Kim, under appointment by
the Court of Appeal for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, Gregory B. Wagner, Deputy Attorney General,
for Plaintiff and Respondent.

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