P. v. Lyles

Filed 11/28/17 P. v. Lyles CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
SCOTT ALAN LYLES,
Defendant and Appellant.
B270897
(Los Angeles County
Super. Ct. No. BA424734)
APPEAL from a judgment of the Superior Court of
Los Angeles County. Craig Richman, Judge. Affirmed.
Robert D. Bacon, 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, Assistant
Attorney General, Victoria B. Wilson and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________

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The Los Angeles County District Attorney’s Office charged
Scott Alan Lyles (appellant) with the shooting murder of Ruben
Castaneda (Castaneda). (Pen. Code, § 187, subd. (a).)1 The
information alleged that appellant personally and intentionally
discharged a handgun causing great bodily injury or death.
(§ 12022.53, subds. (b), (c), (d).) It was also alleged that appellant
had five prior “strike” convictions and/or sustained juvenile
petitions under the “Three Strikes” law (§§ 667, subds. (b)-(j),
1170.12), three prior serious felony convictions (§ 667, subd.
(a)(1)), and that he had served three prior prison terms (§ 667.5,
subd. (b)).
A jury convicted appellant of second degree murder, and
found the firearm allegations to be true. Subsequently, appellant
admitted the priors. The trial court sentenced him to state prison
for 85 years to life, calculated as follows: 45 years to life for
murder (15 years to life, tripled pursuant to the Three Strikes
law), plus 25 years to life for the firearm enhancement under
section 12022.53, subdivision (d), plus 15 years for the prior
serious felony allegations. The enhancements under section
12022.53, subdivisions (b) and (c) were stayed. The sentence on
the section 667.5, subdivision (b) allegations was stricken.
Appellant and Castaneda had a history of violence and
animosity dating back more than 10 years before the shooting.
Below, appellant claimed that at the time of the shooting, he
feared for his life, Castaneda was armed, and appellant was
forced to shoot Castaneda in self-defense. Appellant seeks
reversal of his murder conviction on the grounds that his self-
defense theory was undermined by various errors. He asserts:
1 All further statutory references are to the Penal Code
unless otherwise indicated.

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(1) the trial court erred in admitting his police interview (during
which he failed to claim self-defense) because it was obtained in
violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda);
(2) the trial court erred in precluding a defense witness, Richard
Okihiro (Okihiro), from testifying that Castaneda, at an
unspecified time, stated that he was going to kill appellant;
(3) the trial court erred in precluding the defense from cross-
examining Jose Mendez (Mendez) (a witness to the shooting who
said Castaneda was not armed) about his mental illness, and
whether it impacted his ability to perceive, recall and describe
the shooting; (4) the trial court erred in instructing the jury
pursuant to CALCRIM No. 3472 because it could have misled a
reasonable juror into thinking that prior altercations between
appellant and Castaneda that occurred long ago amounted to
provocations that prevented appellant from claiming self-defense;
and (5) prejudicial error requires reversal.
We find no error and affirm.
FACTS2
Prosecution Evidence
The 2002 Incidents
Lourdes Figueroa (Figueroa) married Castaneda in 1998.
While he was in prison, Figueroa had a sexual encounter with
appellant. She later disclosed the encounter to Castaneda.
In early 2002, appellant showed up at the home of Figueroa
and Castaneda. Castaneda was armed, and shot at the floor.
Afterwards, upon speaking about the sexual encounter between
2 Because we conclude that the trial court did not err, we
have opted to include only those facts necessary give our opinion
context.

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Figueroa and appellant, appellant agreed to end the “dispute”
and shook hands with Castaneda. Three days later, appellant
again showed up at Figueroa and Castaneda’s home. Appellant
went into the bedroom and stabbed Castaneda about seven times.
During this altercation, Figueroa heard a gunshot.
Castaneda’s Incarceration
Castaneda stabbed and killed Jeffrey Baxley. As a result,
on November 6, 2002, Castaneda entered a plea and was
sentenced to state prison for 13 years on a charge of voluntary
manslaughter. He was released from prison on December 28,
2013.
The Events of April 22, 2014
In the afternoon of April 22, 2014, Mendez visited a
homeless friend named “Fred” in a tent near the 110 Freeway in
Los Angeles. Castaneda was inside the tent, too. After about
45 minutes to an hour, Fred left. Mendez and Castaneda were
joined by Cynthia Caldwell (Caldwell), who eventually left and
“went to the bathroom.” Castaneda said he was having problems
with someone, and that they were looking for each other.
While outside of the tent, Caldwell saw appellant near the
tent with a gun. Mendez heard someone say, “Hey man, come
out.” Castaneda went partially out of the opening of the tent. At
no point did Mendez see anything in Castaneda’ hands.
According to Caldwell, there was nothing in Castaneda’s hands
when he came out of the tent; he was holding his hands at his
side. She saw appellant point his gun at Castaneda and shoot
him.3 Mendez heard three to four gunshots and saw Castaneda
3 On direct examination, Caldwell testified that she saw the
shooting. On cross-examination, she testified that she closed her
eyes after hearing the first gunshot. Subsequently, on redirect,

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fall to the ground. Neither Mendez nor Caldwell took any type of
weapon from or near Castaneda’s body.
Defense Evidence
Appellant testified in his own defense as follows:
In the mid-1990’s, Castaneda had a reputation for being
dangerous. Appellant had heard that Castaneda murdered a
couple of people in the neighborhood, that he shot at the police,
and that he was from the Avenues gang. When asked if he feared
Castaneda, appellant said, “Everybody did.”
Two years after a one-time sexual encounter with Figueroa,
appellant was at a house on Meridian Street (Meridian House) in
Los Angeles to see some friends. He knew that Figueroa was
living in the same house. Castaneda confronted appellant. After
appellant admitted the one-time sexual encounter, Castaneda
pulled out a gun and accused appellant of disrespecting
Castaneda by being with his girlfriend. Castaneda said he
should shoot appellant in the legs, then fired in appellant’s
direction. After pulling out a knife, Castaneda said he was
“ready for anything any time[.]” Appellant asked if he could
leave, and Castaneda said, “Go ahead.”
About a month later, appellant went to the Meridian House
to get a ride from a friend. Castaneda emerged from Figueroa’s
bedroom and ran into appellant. Castaneda put his hand behind
his back, and appellant assumed Castaneda was reaching for a
gun. Appellant “bear-hugged” Castaneda and slammed him to
the ground. Castaneda got his hand loose, put a gun to
appellant’s heart, and pulled the trigger as appellant turned,
Caldwell testified that she clearly saw appellant shoot
Castaneda.

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shooting appellant in the left armpit. Castaneda held the gun to
appellant’s throat and tried to shoot but the gun jammed. While
Castaneda was trying to unjam the gun, appellant pulled out a
knife and repeatedly stabbed Castaneda until he dropped his
gun. Appellant ran out of the house. He was hospitalized for
four months and suffered permanent injuries to his left arm as a
result of being shot by Castaneda. Appellant did not trust the
police, so he did not talk to them about the incident.4
After appellant left the hospital, his girlfriend said
Castaneda was going to kill appellant. Subsequently, on one
particular night, appellant noticed a car “going around the block”
and skidding to a stop and revving its engine in front of his
house. Appellant’s friend told him to be careful because
Castaneda and his girlfriend were using a VW Rabbit, and that
was the same car that had been skidding to a stop and revving its
engine. Other people warned appellant that Castaneda was
asking where he was and looking for him.
Sometime in 2002, appellant went to Megan Dickinson’s
house to visit his son and his son’s mother. When appellant
walked out of the garage with some friends, Castaneda began
shooting at them.5 On another occasion in 2002, appellant was at
4 On January 23, 2002, Los Angeles Police Officer Michael
Arteaga responded to a shooting at a residence on Meridian
Street in Los Angeles. Police officers located Castaneda. He had
been stabbed multiple times. Appellant was identified as the
victim of a shooting.
5 Lee Douglas Dickinson, Megan Dickinson’s father and long-
time friend of appellant, corroborated appellant’s account of the
shooting, and testified that in 2002 Castaneda had a reputation
for being violent.

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the Meridian House in the room of his friend, Tennessee.
Another friend informed appellant that Castaneda had arrived at
the house. Appellant could hear Tennessee yell, “Don’t point that
in my face. Don’t put that in my face.” She also said, “There’s no
one in there. I just got here.” Castaneda demanded that she
open the door to her bedroom. Appellant left through Tennessee’s
bedroom window.6
Everywhere appellant went, Castaneda would show up
with a gun. Castaneda pulled a gun on appellant’s friends and
their girlfriends while looking for appellant. After the shooting
incident at the Meridian House, appellant began carrying a gun.
He feared Castaneda and the Avenues gang. When Castaneda
was hunting appellant, no one wanted appellant around, and
there were very few places that he could go. It “screwed with” his
head.
In 2003, appellant was convicted of possession of a firearm
by a felon and sent to prison. He was released on February 10,
2014.
6 Valerie Lynn Westek (Westek) lived in the Meridian House.
She testified that appellant showed up at the house scared.
When Castaneda arrived, appellant went to the back of the house
to Tennessee’s room. Castaneda had a gun and was looking for
appellant. He had a “wild look” in his eyes and tried to “go to”
where appellant was, but Tennessee “wouldn’t open the door.”
Castaneda threatened Westek with his gun. According to
Westek, “He said he should have killed me and . . . and that he
was planning on killing anybody in the house that got in his
way.” About a week later, Westek saw appellant on York
Boulevard. Appellant appeared to be scared, and he “took off
right away.” About 10 minutes later Castaneda arrived and
indicated he was looking for appellant.

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After appellant was released from custody, he was
homeless and living at the “river” most of the time. Appellant
was warned that Castaneda was looking for him at the river. A
friend had reportedly seen Castaneda in the vicinity of the tent
occupied by Eddie Singletary (Singletary). On April 22, 2014,
appellant spoke to Singletary by phone. Singletary indicated
that he was with Castaneda and said, “Now is your chance to
squash this and talk to him.” Because of Castaneda’s past
actions, appellant armed himself with a gun before going to
Singletary’s tent to see Castaneda.
Caldwell was in the walkway outside the tent. Appellant
said he did not want any problems, and that he was ready to talk.
Caldwell entered the tent. Appellant could see into the tent
through an opening, and he saw Caldwell bent over in front of
someone. She said, “He’s here. He’s here. He’s here.” Feeling
uneasy, appellant began backing away from the tent. Caldwell
exited the tent and said, “He knows you’re here.” Caldwell
walked up close to appellant and extended her hands. As soon as
she did that, Castaneda came bursting out of the tent. Appellant
hit Caldwell’s hands and took two big steps back. He saw a gun
in Castaneda’s hand. Instantly, appellant knew he had been
tricked, and that the plan was for him to be murdered by
Castaneda. Appellant reached for his gun. Caldwell was
between him and Castaneda in a direct line. After appellant
“step[ped] out of the way to avoid her,” he fired four times.
Castaneda was facing appellant. He took a step back, twisted to
his left while bending over at the waist, and then brought the gun
up over his shoulder. Appellant turned and ran away.

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DISCUSSION
I. Miranda.
Appellant contends that he was improperly interrogated by
the police before he received a Miranda admonition, and that the
statements he made during the interrogation should have been
suppressed. Also, he posits prejudice because the prosecution
argued that one reason his self-defense argument lacked
credibility was because he did not assert it when he was first
interviewed. In other words, he contends there was prejudice due
to what he did not say. As we discuss below, no statements were
induced by a practice the police should have known was
reasonably likely to evoke an incriminating response. In
addition, there is no law making a failure to assert self-defense
inadmissible under Miranda.
A. Relevant Facts and Proceedings.
Appellant was arrested on July 2, 2014. He was admitted
to the Jail Ward at County-USC Hospital.7 The next day,
appellant was interviewed by Los Angeles Police Detective
Miguel Barajas and his partner. After Detective Barajas
obtained biographical information from appellant, the following
colloquy ensued:
“DETECTIVE BARAJAS: Okay, well, I think you know
why we’re here. And I think by now you know why you’re here,
you know.
“APPELLANT: Yeah, you’re saying I killed somebody.
“DETECTIVE BARAJAS: Okay.
7 Appellant testified that he was treated for a Staph
infection. The prosecutor said appellant was hospitalized due to
gangrene.

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“APPELLANT: I would really like to talk to you because
it’s bigger than you guys think . . . or maybe you guys already
know. It’s got to do with gangs, drugs, heroin, prostitution,
Mafia. . . . [A]ll that shit and, uh, I would like to talk to you but I
don’t trust you guys.
“DETECTIVE BARAJAS: Mr. Lyles, I’m pretty straight
forward sir, I’m really mellow. This is how I am—the way I’m
talking to you is the way I am all the time, okay. We’re pretty
straight forward and we [would] like to hear your side of what
happened you know—but before that obviously we have to read
your rights you know.
“APPELLANT: Like I said, I’d like to talk to you. . . .
“DETECTIVE BARAJAS: Okay.
“APPELLANT: Because it’s bigger than you guys think, or
maybe you guys already know how big it is.”
The prosecution proposed to play a recording of the
preceding colloquy. The defense objected based on Miranda,
claiming that Detective Barajas’s first statement was designed to
elicit an incriminating response. The trial court considered the
question a close call, and indicated that context was the deciding
factor. Ultimately, the trial court overruled the objection.
The recording was played for the jury.
After the jury heard the recording, Detective Barajas
testified that he had been assigned to this case from the
beginning, and the first time he heard appellant claim self-
defense was at the preliminary hearing.
In his closing argument, the prosecutor argued that
appellant’s self-defense theory lacked credibility because he did
not claim self-defense when he was first interviewed by the
police.

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B. Analysis.
“[T]he Miranda safeguards come into play whenever a
person in custody is subjected to either express questioning or its
functional equivalent. That is to say, the term ‘interrogation’
under Miranda refers not only to express questioning, but also to
any words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police should
know are reasonably likely to elicit an incriminating response
from the suspect. The latter portion of this definition focuses
primarily upon the perceptions of the suspect, rather than the
intent of the police. This focus reflects the fact that the Miranda
safeguards were designed to vest a suspect in custody with an
added measure of protection against coercive police practices,
without regard to objective proof of the underlying intent of the
police. A practice that the police should know is reasonably likely
to evoke an incriminating response from a suspect thus amounts
to interrogation.” (Rhode Island v. Innis (1980) 446 U.S. 291,
300–301, fns. omitted (Innis).)
Here, because the facts are undisputed, our review is
independent. (People v. Weaver (2001) 26 Cal.4th 876, 918.)
According to appellant, it was the functional equivalent of
an interrogation when the detective said, “Okay, well, I think you
know why we’re here. And I think by now you know why you’re
here, you know.” The problem with this argument is that the
detective merely made a statement of inference, i.e., the detective
was inferring that because appellant had been arrested, he knew
why the detectives were talking to him and asking for his
biographical data. The statement did not call for an
incriminating response. (People v. Huggins (2006) 38 Cal.4th
175, 198 [“telling defendant he was a murder suspect did not call

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on him to confess”]; People v. Haley (2004) 34 Cal.4th 283, 300,
302 [“A brief statement informing an in-custody defendant about
the evidence that is against him is not the functional equivalent
of interrogation because it is not the type of statement likely to
elicit an incriminating response”].) This is confirmed by
appellant’s response, which was to say, “Yeah, you’re saying I
killed somebody.” He was merely stating what he believed. This
response was not incriminating.
At the heart of appellant’s contention is that he was
prejudiced by what he did not say. But he did not cite any law
establishing that Miranda is implicated in this context. Even if
we were to conclude that the statement was the functional
equivalent of an interrogation, we would decline to create a new
rule that Miranda would make the absence of a statement
inadmissible.
II. Exclusion of Castaneda’s Threat.
Appellant contends that the trial court excluded Okihiro’s
testimony that he heard Castaneda say he was going to kill
appellant on the ground the statement was too remote in time,
and because Okihiro’s testimony was inadmissible hearsay.
According to appellant, People v. Brust (1957) 47 Cal.2d 776
(Brust) establishes that the statement was neither too remote nor
hearsay. Appellant’s contention lacks merit because Castaneda’s
statement was offered for a hearsay purpose, and appellant failed
to establish a hearsay exception.
A. Relevant Facts and Proceedings.
In the prosecutor’s opening statement, he averred that
appellant went to Castaneda’s tent at a homeless encampment,
called for Castaneda to exit the tent, and shot him before he fully
emerged. According to the prosecutor, appellant could not claim

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self-defense because he sought to retaliate against Castaneda for
past altercations by bringing a gun to a situation in which
appellant had been informed that Castaneda would be
vulnerable. During defense counsel’s opening statement, he
related a different narrative. He maintained that appellant went
to the tent because he was told that Castaneda wanted to talk
about a truce. Because appellant was afraid, he brought a gun.
Castaneda came out of the tent and pointed a gun at appellant
“as though he was going to finish the job from years before.”
Appellant then shot Castaneda in self-defense.
During a break in the defense case, the trial court stated,
“So I’ve been provided with a statement that Mr. Okihiro
provided to defense investigators, and I’ve read that statement at
this point in time. [¶] The question is whether and what
Mr. Okihiro would testify to.”8 The trial court asked defense
counsel what he was seeking to present. Defense counsel stated:
“The [Evidence Code section] 1103 portion of Mr. Castaneda’s
being armed [sic] and saying he was going to kill Mr. Lyles is the
most important portion. I would argue that the other portion of
his would go to . . . Mr. Castaneda’s state of mind.”
The prosecutor argued that Castaneda’s state of mind was
“not the issue,” and noted that “[w]e’re looking at the events and
facts surrounding April 22[, 2014].” Further, the prosecutor said
8 Appellant requests that we take judicial notice of the
statement provided to the trial court on the theory it is a fact
capable of immediate and accurate determination by resort to
sources of reasonably indisputable accuracy. (Evid. Code, § 452,
subd. (h).) The request is denied. There is no basis for us to
conclude that the report attached to the request for judicial notice
is the same report that was submitted to the trial court as an
offer of proof.

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Okihiro’s proposed testimony would constitute hearsay and was
therefore inadmissible.
The trial court stated: “Had Mr. Okihiro relayed the
information to [appellant], it would clearly be relevant at that
point in time, although the statement clearly indicates that
Mr. Okihiro did not relay the information to [appellant]. So the
statements Mr. Castaneda is making to Mr. Okihiro are hearsay,
and I find that they do not fall within the hearsay exception of
the declarant’s then existent state of mind; however, because of
the relatively limited time frame that we are talking about
between Mr. Castaneda being released from prison and the
incident at hand, I would allow Mr. Okihiro to testify that at
some point in . . . that limited time frame, Mr. Castaneda was
seen by Mr. Okihiro in possession of a .38 caliber revolver.”
At the time of trial, Okihiro was 41 years old. He testified
that since he was 15 years old, he had known Castaneda, and
they were good friends. Castaneda was a member of the Avenues
gang and could be violent at times. They were in prison together
from 2005 through 2008. Following Castaneda’s release from
prison in early 2014, Okihiro saw Castaneda with a gun on two to
four separate occasions.
B. Analysis.
We review evidentiary rulings for an abuse of discretion.
(People v. Guerra (2006) 37 Cal.4th 1067, 1113 (Guerra).)
In his opening brief, appellant argues: “Mr. Castaneda was
released on parole on December 28, 2013[,] and was killed
April 22, 2014, less than four months later, so the statements
Mr. Okihiro heard were made within that period. Two of the
statements in Brust were made seven and four months before the
victims’s death. Exclusion of the evidence in this case as too

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remote in time was inconsistent with the holding in Brust.” We
need not dwell on this argument. At no point did the trial court
rule that Castaneda’s statement was subject to exclusion because
it was too remote in time.
In his reply brief, appellant argues that, under Brust,
“Okihiro’s [testimony] was not vulnerable to a hearsay objection.”
According to our Supreme Court’s Brust decision, a “victim’s
expressions of hostility to defendant tend to show the existence of
hostility. The existence of hostility tends to show the probability
of hostile conduct toward defendant.” (Brust, supra, 47 Cal.2d at
p. 784.) Out of court statements “are not vulnerable to [a]
hearsay objection” if they are offered as “circumstantial evidence
of [the declarant’s] feeling toward defendant.” (Id. at p. 785.)
Based on this, appellant suggests he should have been permitted
to adduce testimony of Castaneda’s threat for the nonhearsay
purpose of proving his hostility toward appellant. But appellant
did not seek to offer it for that purpose. Rather, he offered it as
evidence of Castaneda’s character or trait under Evidence Code
section 1103, subdivision (a)9 in order to prove his conformity
9 Except as provided in, inter alia, Evidence Code section
1103, evidence of a person’s character or trait is inadmissible to
provide his or conduct on a specified occasion. (Evid. Code,
§ 1101, subd. (a).)
“In a criminal action, evidence of the character or a trait of
character (in the form of opinion, evidence of reputation, or
evidence of specific instances of conduct) of the victim of the
crime for which the defendant is being prosecuted is not made
inadmissible by [Evidence Code] Section 1101 if the evidence is:
[¶] (1) Offered by the defendant to prove conduct of the victim in
conformity with the character or trait of character.” (Evid. Code,
§ 1103, subd. (a).)

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with that character or trait. As a result, appellant’s reliance on
Brust is misplaced.
In any event, even if we assumed the existence of Brust
error, we would not perceive prejudice to appellant because there
was ample evidence of Castaneda’s hostility toward appellant
based on their years of feuding and fighting during which, on one
occasion, Castaneda shot appellant. As a consequence, appellant
could not persuasively assert that it is “reasonably probable that
a result more favorable to the appealing party would have been
reached in the absence of the error.” (People v. Watson (1956) 46
Cal.2d 818, 836.)
Notably, appellant does not urge us to find an abuse of
discretion under Evidence Code section 1103, subdivision (a).
More specifically, he does not argue that the statement qualifies
as conduct evidence of Castaneda’s character or trait. Properly
viewed, Castaneda’s statement, if anything, was evidence of his
plan, intent or state of mind. But it was not offered for that
below. It was specifically and only offered as Evidence Code
section 1103, subdivision (a) evidence.
Even though appellant did not articulate a desire at trial to
adduce Castaneda’s threat to demonstrate plan, intent or state of
mind10 regarding his fatal confrontation with appellant, the
parties nonetheless spend ample amounts of their briefs
discussing whether this was an applicable hearsay exception.
Though this issue is moot because it was not raised below, we
note the following.
10 Defense counsel referenced state of mind with respect to
portions of Okihiro’s proposed testimony other than his proposed
testimony about Castaneda making threats and being armed.

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With respect to the hearsay use of hostile statements, Brust
stated: “Insofar as the evidence is hearsay, the following analysis
[citation] is pertinent: ‘it is admissible only if there appears to be
a necessity for that type of evidence and a circumstantial
probability of its trustworthiness [citation], and if it falls within
an accepted exception to the hearsay rule. . . . The death of the
declarant [can create] the necessity for resort to hearsay[.]”
(Brust, supra, 47 Cal.2d at p. 785.) Our Legislature gives us
these additional considerations. Subject to Evidence Code section
1252, evidence of a statement of the declarant’s state of mind or
emotion, including a statement of intent or plan, is not made
inadmissible by the hearsay rule when it is offered to prove the
declarant’s state of mind at a time when it is at issue, or to prove
or explain acts or conduct of the declarant. (Evid. Code, § 1250,
subd. (a).) As an exception to the foregoing, Evidence Code
section 1252 provides: “Evidence of a statement is inadmissible
. . . if the statement was made under circumstances such as to
indicate its lack of trustworthiness.”
The only offer of proof before us on appeal is defense
counsel’s statement to the trial court that Castaneda was going to
kill appellant. Defense counsel did not specify when the
statement was made, or provide a context for it. The statement
could have been made recently, or long ago. It could have been
made in jest. Given the paucity of facts, it is impossible for us to
determine—as required by Brust—whether there was a
circumstantial probability that the statement was trustworthy.
(People v. Edwards (1991) 54 Cal.3d 787, 820 [to be admissible
under Evidence Code section 1252, “statements must be made in
a natural manner, and not under circumstances of suspicion, so
that they carry the probability of trustworthiness”].) Appellant

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contends that it was an abuse of discretion for the trial court to
rule without clearing up any questions about the trustworthiness
of the statement by either asking defense counsel for a more
detailed offer of proof, or by questioning Okihiro. But appellant
did not offer the statement under Evidence Code section 1250.
Moreover, he did not cite any law to support his assertion. We
need not discuss this issue further.
III. Limitation on the Cross-Examination of Mendez.
Appellant argues that the trial court erred when it refused
to permit the defense to cross-examine Mendez regarding his
reported diagnosis with mental illness. We conclude there was
no abuse of discretion because: (1) the defense did not make an
initial offer of proof, with foundation, regarding relevance as to
whether Mendez’s mental illness impacted his ability to perceive,
recall or describe the shooting of Castaneda; and (2) even though
the trial court left the door open for the defense to make an offer
of proof, the defense never did.
A. Relevant Facts and Proceedings.
Prior to calling Mendez to the stand, the prosecutor
informed the trial court that Mendez’s speech was slurred in the
video recording of his police interview on April 28, 2014, six days
after the shooting. At the time, per Mendez, he was on
medications for schizophrenia and bipolar disorder. According to
the prosecutor, Mendez stated that he took his medication
regularly, and that it did not affect his ability to remember the
shooting. The prosecutor maintained that Mendez’s use of
medication was irrelevant to the issues.
The trial court stated, “I do believe that it is relevant to
Mr. Mendez’s ability to perceive the events, as well as recall them
and relate them. So over the People’s objection, I will allow some

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questioning concerning the medication that Mr. Mendez is or was
taking at the time. I don’t want to spend that much time. So at a
point in time, I would sustain my own [Evidence Code section]
352 objection, but I do believe it is relevant and probative.”
Defense counsel asked if “the limitation on the questioning
would be specific as to his diagnosis.” In reply, the trial court
stated, “I don’t really care what his diagnosis is. Was he taking
medication at the time? Does it affect his ability to perceive
things, and the like? And I think [defense counsel] can point out
that in the videotape that [Mendez] is speaking with slurred
speech.” The trial court asked defense counsel if he thought the
diagnosis was relevant. Defense counsel replied, “Well,
potentially[.] I’m not a doctor[,] but schizophrenia can affect, you
know, hallucination; things of that nature.” The trial court
answered back as follows: “I have no idea whether it does or not,
because I missed that day in law school. . . . If it comes to my
attention it may affect a person’s ability to perceive and the like,
I’ll be more than happy to appoint an expert for either side, a
psychiatrist who can render a fairly rapid opinion on that. I’ll
leave Mr. Mendez on call, or we can call the panel psychiatrist to
testify that the disease itself may affect the person’s ability to
perceive or recall or relate. [A]ll right, [defense counsel]? [¶] Are
you satisfied with that?” Defense counsel said, “Yes, for now.”
Summarizing, the trial court stated, “Then we’ll just leave
it up in the air for now. But now I don’t want any questions as
far as the diagnosis itself.”
Mendez testified with the assistance of the Spanish
interpreter. During cross-examination, defense counsel asked if
Mendez noticed that he was slurring during his police interview.
Mendez said there was an explanation, and stated that he had

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been taking medication since 2007. Defense counsel asked, “The
medication affects your ability to speak sometimes?” The
prosecutor objected to Mendez’s answer before the interpreter
could translate it. At sidebar, the prosecutor and the interpreter
informed the judge that Mendez had said that he was taking
“medications for the mind.” The judge ordered the answer
stricken and it was not translated for the jury. When cross-
examination resumed, Mendez testified that the medication
affected his ability to speak. He said the medication did not
affect his ability to see or hear, but it did make him feel “a little
like” he needed “to rest a lot.” On April 22, 2014, he was taking
his medication. When asked if the medication affected his
memory, he replied, “That is the purpose of the medication, to
help me remember more.”
B. Analysis.
As previously noted, evidentiary rulings are reviewed for
an abuse of discretion. (Guerra, supra, 37 Cal.4th at p. 1113.)
“[T]he mental illness or emotional instability of a witness
can be relevant on the issue of credibility, and a witness may be
cross-examined on that subject, if such illness affects the
witness’s ability to perceive, recall or describe the events in
question.” (People v. Gurule (2002) 28 Cal.4th 557, 591–592.)
In arguing that he made a sufficient offer of proof,
appellant relies on People v. Huskins (1966) 245 Cal.App.2d 859,
861–862 (Huskins) to establish error.
In Huskins, the defendant stood accused of molesting his
six-year-old daughter, who was living with foster parents. The
foster mother testified that on two occasions, the defendant took
his daughter out and returned her in a disheveled and upset
condition. On both occasions, the foster mother took the

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daughter to a doctor, who found genital inflammation. The
defendant testified that on “the day in question he and his wife
worked around the house while their children played.” (Huskins,
supra, 245 Cal.App.2d at p. 861.) His wife testified that she was
with the defendant, their six-year-old daughter and their other
children “during the entire day of the visit and [their six-year old
daughter] was undisturbed and in good physical condition when
she left the house with her father to return to her foster home.”
(Ibid.)
“After the criminal conviction and during . . . sexual
psychopathy proceedings, the defense discovered that [the foster
mother] had instituted civil commitment proceedings against her
own husband[, the foster father,] in 1951, accusing him of being a
sex pervert who had attacked his own daughter and had
performed sex acts with animals. These accusations were never
proved. Rather [the foster mother] herself was found to be
suffering from paranoid schizophrenia, and after her attempt at
suicide was committed to Camarillo State Hospital, where she
remained for a year and a half. The defense moved for a new
trial, contending this newly-discovered evidence cast serious
doubt on the credibility and motives of [the foster mother], the
main prosecution witness, and suggested either that [the foster
mother] was suffering from delusions and no crime had ever been
committed, or that [the foster mother] had fabricated the
accusations and coached the child in order to keep the child in
her family, or that another person, the foster father, might have
molested the child.” (Huskins, supra, 245 Cal.App.2d at pp. 861–
862.)
The trial court denied the motion for new trial and the
reviewing court reversed. (Huskins, supra, 245 Cal.App.2d at

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p. 863.) The Huskins court explained, “The defense, because of
lack of knowledge, never had an opportunity at the criminal trial
to cross-examine [the foster mother] about the charges she had
made against her husband, her history of mental illness, and her
commitment to a mental hospital, or to develop the theory that
[the foster mother] to serve her own purposes had concocted the
charges against [the defendant] in order to keep his children in
her family. Every experienced trial attorney knows the
devastating effect which pertinent cross-examination on a
vulnerable subject can produce on a witness. On occasion the
skillful use against a fabricating witness of ammunition such as
that newly-discovered here may even cause the witness to break
down on the stand and admit perjury in open court. Conversely,
a witness who stands up well against such an assault tends to
bring strengthened credibility to his evidence-in-chief.” (Ibid.)
Further, the Huskins court stated that it was important for
the trier of fact to observe the foster mother’s demeanor while she
explained “what brought about her prior unproved charges of
child molestation against her husband. Her intimate
involvement as accuser in two such matters could be the result of
an unfortunate coincidence—or it could reflect a pattern of mind
which predisposes her to jump to unwarranted conclusions on the
subject. In our view this is one of those exceptional cases with
unusual facts in which newly-discovered evidence impeaching the
credibility of a prosecution witness makes a different result on
retrial probable. [Citation.]” (Huskins, supra, 245 Cal.App.2d at
p. 864.) The court proceeded to note that its “conclusion on the
probability of a different result [was] fortified by the verdict [of]
the jury [in] the sexual psychopathy trial, which, after hearing

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the evidence impeaching [the foster mother], concluded that
defendant was not a sexual psychopath.” (Ibid.)
Appellant’s argument boils down to this sentence in his
opening brief: “While the proffer concerning Mendez was not as
strong as the proffer in Huskins, it must be judged by a more
lenient standard because it was presented prior to his testimony,
not as newly-discovered evidence in a motion for new trial.” This
argument does not establish an abuse of discretion. Appellant
did not cite any law regarding the standard for the offer of proof.
Moreover, appellant’s offer of proof was vague and equivocal and
therefore did not establish a prima facie case for relevance.
Defense counsel said Mendez’s mental illness was potentially
relevant, and suggested that schizophrenia could cause
hallucinations. Defense counsel case did not say Mendez’s
mental illness was relevant, nor did he suggest he had consulted
a mental health professional who would testify that Mendez’s
ability to perceive, recall or describe the shooting had been
impaired by his mental illness.
Setting this aside for a moment, it cannot be forgotten that
the trial court gave the defense the opportunity to revisit the
issue. In other words, the trial court invited an offer of proof, and
one was never proffered. Even though the defense did not have
an opportunity to consult with a mental health expert when the
issue first came to light, the defense could have done so later.
Under these circumstances, it cannot be said that the trial court
abused its discretion.
IV. CALCRIM No. 3472.
Appellant contends the trial court erred by giving
CALCRIM No. 3472, which explains that a person does not have
a right of self-defense if he or she provokes a fight or quarrel with

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the intent to create an excuse to use force. According to
appellant, a reasonable juror could have erroneously concluded
that he provoked a fight or quarrel with Castaneda in 2002 and
therefore could not claim self-defense on April 22, 2014. This
contention lacks merit. CALCRIM No. 3472, taken together with
the other jury instructions, made it clear that the provocation
nullifying self-defense has to immediately precede the use of
force.
A. Relevant Instructions.
1. CALCRIM No. 505.
The trial court instructed: “The defendant is not guilty of
murder or manslaughter if he was justified in killing someone in
self-defense. The defendant acted in lawful self-defense if: [¶]
One, the defendant reasonably believed that he was in imminent
danger of being killed or suffering great bodily injury; [¶] Two,
the defendant reasonably believed that the immediate use of
deadly force was necessary to defend against that danger; and
[¶] Three, the defendant used no more force than was reasonably
necessary to defend against that danger.
“Belief in future harm is not sufficient, no matter how great
or how likely the harm is believed to be. The defendant must
have believed there was imminent danger of death or great bodily
injury to himself. The defendant’s belief must have been
reasonable, and he must have acted only 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 killing was not justified.
“When deciding whether the defendant’s beliefs were
reasonable, consider all the circumstances as they were known to

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and appeared to the defendant, and consider what a reasonable
person in a similar situation with similar knowledge would have
believed. If the defendant’s beliefs were reasonable, the danger
does not need to have actually existed. The defendant’s belief
that he was threatened may be reasonable even if he relied on
information that was not true. However, the defendant actually
and reasonably believed that the information was true.
“If you find that Ruben Castaneda threatened or harmed
the defendant or others in the past, you may consider that
information in deciding whether the defendant’s conduct and
beliefs were reasonable. [¶] If you find the defendant knew that
Ruben Castaneda had threatened or harmed others in the past,
you may consider that information in deciding whether the
defendant’s conduct and beliefs were reasonable. [¶] Someone
who has been threatened or harmed by a person in the past, is
justified in acting more quickly or taking greater self-defense
measures against that person. [¶] If you find that the defendant
received a threat from someone else that he reasonably
associated with Ruben Castaneda, you may consider that threat
in deciding whether the defendant was justified in acting in self-
defense.
“A defendant is not required to retreat. He or she is
entitled to stand his or her ground and defend himself or herself
and, if reasonably necessary, to pursue an assailant until the
danger of death or great bodily [injury] has passed. This is so,
even if safety could have been achieved by retreating.
“Great bodily injury means significant or substantial
physical injury. It is an injury that is greater than minor or
moderate harm.

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“The People have the burden of proving beyond a
reasonable doubt that the killing was not justified. If the People
have not met this burden, you must find the defendant not guilty
of murder or manslaughter.”
2. CALCRIM No. 571.
Regarding imperfect self-defense, the jury was instructed
as follows: “A killing what would otherwise be murder is reduced
to voluntary manslaughter if the defendant killed a person
because he acted in imperfect self-defense. [¶] If you conclude
the defendant acted in complete self-defense, his action was
lawful, and you must find him not guilty of any crime. 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.
“The defendant acted in imperfect self-defense if: [¶] one,
the defendant actually believed that he was in imminent danger
of being killed or suffering great bodily injury; [¶] and two, the
defendant actually believed that the immediate use of deadly
force was necessary to defend against the danger; but, [¶] three,
at least one of those beliefs was unreasonable. . . .
“Belief in future harm is not sufficient, no matter how great
or how likely the harm is believed to be. [¶] In evaluating the
defendant’s beliefs, consider all of the circumstances as they were
known and appeared to the defendant. [¶] A danger is imminent
if, when the fatal wound occurred, the danger actually existed, or
the defendant believed it existed. The danger must seem
immediate and present, so that it must instantly be dealt with.
It may not be merely prospective or in the near future. [¶]
Imperfect self-defense does not apply when the defendant,
through his own wrongful conduct, has created the circumstances

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that justify his adversary’s use of force. [¶] If you find that
Ruben Castaneda threatened or harmed the defendant or others
in the past, you may consider that information in evaluating the
defendant’s beliefs. If you find the defendant knew Ruben
Castaneda had threatened or harmed others in the past, you may
consider that information in evaluating the defendant’s beliefs.
[¶] If you find that the defendant received a threat from someone
else that he associated with Ruben Castaneda, you may consider
that threat in evaluating the defendant’s beliefs.
“Great bodily injury means significant or substantial
physical injury. It is an injury that is greater than minor or
moderate harm. The People have the burden of proving beyond a
reasonable doubt that the defendant was not acting in perfect
self-defense. If the People have not met this burden, you must
find the defendant not guilty of murder.”
3. CALCRIM No. 3472.
In addition to the preceding, the trial court instructed: “A
person does not have the right to self-defense if he or she
provokes a fight or quarrel with the intent to create an excuse to
use force.”
4. Counsels’ arguments.
In closing argument, the prosecutor argued that appellant
was not acting under the influence of fear. Rather, he went to
Singletary’s tent with a gun in order to confront Castaneda, who
was unarmed. The prosecutor cited CALCRIM No. 3472 and
stated that “self-defense cannot be contrived.” He also stated, “A
person does not have the right to self-defense if he or she
provokes a fight or quarrel, with the intent to create an excuse to
use force. You can’t show up to a location with a loaded gun,
drawn, ready to shoot and kill somebody. . . . Common sense.

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The law applies common sense. Self-defense does not work that
way.”
Defense counsel argued that Castaneda was armed, and
that appellant reasonably feared for his life when he shot
Castaneda.
B. Analysis.
When addressing a claim of instructional error, an
appellate court must “assess the instructions as a whole, viewing
the challenged instruction in context with other instructions, in
order to determine if there was a reasonable likelihood the jury
applied the challenged instruction in an impermissible manner.”
(People v. Wilson (2008) 44 Cal.4th 758, 803.) A claim of
instructional error is considered in the context of the entire
record of trial, including the arguments of counsel. (People v.
Franco (2009) 180 Cal.App.4th 713, 720.) Moreover, a claim of
instructional error is reviewed de novo. (People v. Guiuan (1998)
18 Cal.4th 558, 569.)
CALCRIM No. 3472 correctly states the law. (People v.
Eulian (2016) 247 Cal.App.4th 1324, 1334 (Eulian).)11
Nonetheless, appellant claims the instruction may have been
misleading given the facts of this case.
Appellant notes that a quarrel can last for years. Thus, he
suggests that the jury could have concluded that appellant was
11 The instruction “might require modification in the rare case
in which a defendant intends to provoke only a nondeadly
confrontation and the victim responds with deadly force.”
(Eulian, supra, 247 Cal.App.4th at p. 1334.) This is not a case in
which appellant intended to provoke nondeadly force. As a
result, there was no need for the trial court to modify the
instruction.

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barred from claiming self-defense based on his 2002 actions. But
the prosecutor never argued that appellant’s 2002 actions
nullified his self-defense theory. Moreover, it would have been
unreasonable for the jury to conclude that appellant’s actions in
2002 were intended to create an excuse to use force at a specific
date and time approximately 12 years later, or to conclude that
his 2002 actions barred him from ever defending himself against
Castaneda. It is not likely the jury applied the instruction in an
impermissible manner.
V. Cumulative Error.
Given the absence of any error, we need not address
appellant’s claim that he was prejudiced by cumulative error.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
_______________________, J. _____________________, J.*
CHAVEZ GOODMAN
* Retired Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.

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