Filed 12/18/19 P. v. Feci CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES MICHAEL FECI,

Defendant and Appellant.

C086382

(Super. Ct. No. 16FE018319)

Defendant James Michael Feci shot and killed his roommate, Matthew Lambert, after the latter physically assaulted defendant over comments he made about Lambert’s girlfriend. Defendant was convicted by jury of voluntary manslaughter and found to have personally and intentionally discharged a firearm causing Lambert’s death. The trial court sentenced defendant to serve an aggregate determinate term of 15 years in state prison.

On appeal, defendant contends: (1) the trial court prejudicially abused its discretion and violated his federal constitutional rights, including the right of confrontation under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford), by admitting testimonial hearsay, i.e., a statement defendant’s wife made to an investigating officer concerning defendant’s act of pulling his gun on the victim during the assault; (2) the trial court prejudicially erred and further violated defendant’s constitutional rights by instructing the jury on how the law of self-defense applies both in a mutual combat setting (CALCRIM No. 3471) and where a defendant provokes a fight with an intent to create an excuse to use force (CALCRIM No. 3472); and (3) the cumulative prejudicial effect of the foregoing claims of error requires reversal.

We affirm. While we conclude the trial court violated defendant’s right of confrontation by allowing testimony concerning his wife’s statement to police, we also conclude the error was harmless beyond a reasonable doubt in light of the overwhelming evidence defendant’s conduct, at the very least, amounted to voluntary manslaughter. We further conclude any assumed instructional error was also harmless. Nor would the cumulative prejudicial effect of the confrontation violation and assumed instructional errors require reversal.

FACTS

Lambert and a close friend, Michael Carbahal, moved into a house together in September 2015. The following summer, they allowed defendant, his wife, K., and four children to move into the house. Defendant had known Lambert for five or six years and, according to his testimony, considered Lambert to be his “best friend.” He had not known Carbahal for as long, about three years, and met him through Lambert. Carbahal suffered from and took medication for several mental health issues, including depression, anxiety, bipolar disorder, and schizophrenia, during the time he lived in the house. Defendant and his family moved into the house about two months before the events resulting in Lambert’s death.

We begin our recitation of these events a day or two before Lambert died. Lambert’s girlfriend, V., was over at the house. While intoxicated, she became involved in some sort of dispute with one of the neighbors and began spraying a hose at the neighbor over the back yard fence. Law enforcement officers came to the house, but the record is unclear as to the outcome of their visit.

Either the next day or the day after, defendant, K., and Carbahal were “sitting around” the house “making jokes” about the incident with the hose. As Carbahal explained, defendant did “an impression” of V. that was “pretty funny.” Defendant and K. also expressed concern about V. using methamphetamine and said they did not want drug use at the house. Lambert was at work when this conversation took place, but V. was in his room and overheard enough of what was being said to put together they were talking about her.

When Lambert got home from work that afternoon, V. “told him how they were making fun of [her].” Lambert said he had told them not to make her feel uncomfortable at the house, so he would be moving out; V. said defendant and his family should be the ones to move. They then lay down together and Lambert fell asleep. While Lambert slept, V. got up and picked up pizza for them to eat. When he woke up some time later, they ate some of the pizza and V. told him she would be going back to her house that night. Lambert became upset, went into the kitchen, and started knocking various items off of the counter and onto the floor. He also woke up Carbahal, who was sleeping on a couch in the living room, by flicking him in the forehead with his finger. Lambert asked Carbahal whether he had been talking about his girlfriend and told him, “don’t talk shit behind my back.” After a brief argument between these two, K. came out of the room she shared with defendant and their children. She told Lambert, “Fuck you,” Lambert responded, “Shut up, you fat bitch,” and the argument escalated from there, ending a couple minutes later with Lambert telling K. that he wanted them to move out in the next 30 days. Lambert then returned to his room.

Defendant was not at the house when these arguments occurred. He got home a short time later and sat on the arm of one of the couches while Carbahal told him what had happened. Lambert then came out of his room and confronted defendant. Carbahal could not remember what was said between the two, but described the conversation as short and added: “It wasn’t even yelling really.” When Lambert started to walk back to his room, defendant made a parting comment about V., “something like, for that tweaker broad or something.” Hearing the comment, Lambert turned around and said, “talking shit again behind my back.” He then rushed defendant and tackled him on the couch.

Lambert, a much larger man than defendant, began choking and punching him on the couch. Defendant routinely carried a loaded revolver in a holster on his hip and was so armed when Lambert attacked him. He reached for his gun and removed it from its holster. As defendant did so, Lambert released his throat and tried to take the gun from him. V. came into the living room when the fighting began and told Lambert to stop. Lambert responded that defendant had “pulled a gun on him.” K. also came into the living room around this time, said, “fuck that,” and jumped on Lambert’s back as he and defendant struggled for possession of the gun. At this point, Carbahal also joined in the struggle, saying, “give me the fucking gun.” He was “yanking on” the gun in an attempt to disarm both men when “it just went off.”

No one was hit by this initial discharge, but both Lambert and Carbahal were knocked to the ground. Defendant, still standing and now in sole possession of the gun, pointed it at Lambert and fired a second round. The bullet hit Lambert in the jaw as he sat in a kneeling position on the floor, traveled through the soft tissues of his neck, fracturing the cervical vertebrae, and lodged in his back. Lambert immediately fell face down on the floor. Both K. and Carbahal started yelling at defendant. K. was crying. Carbahal then noticed Lambert was moving. As he described, “it look[ed] like he was trying to do a pushup.” Carbahal also described defendant’s response: “And [defendant] takes two steps towards him and drops aim and he puts one in the back of his head.” V. confirmed defendant “stepped forward and shot him again,” adding: “It was really quickly.” This bullet hit Lambert behind the right ear and traveled forward through his brain from right to left, stopping when it hit bone on the left side of his skull. Loss of consciousness was instantaneous; death from blood loss and neurologic compromise quickly followed.

The foregoing description of the confrontation between defendant and Lambert is supported by the testimony of Carbahal and V., their prior statements to law enforcement officers, and the forensic pathologist’s description of the gunshot wounds inflicted on Lambert. Defendant, however, told a different story from the witness stand.

Defendant testified Carbahal suffered from schizophrenia and bipolar disorder, routinely abused a variety of drugs, and that he drank alcohol, smoked marijuana, and used methamphetamine on the day Lambert died. He also suspected V. of using methamphetamine, but never actually witnessed her using the substance. The day he shot and killed Lambert, on his way home from taking two of his children to the park, defendant spoke with K., who was “obviously upset” and said she got into an argument with Lambert and wanted to move out of the house. According to defendant, K. also told him Lambert threatened to kill him. When defendant got home, his eight-year-old daughter told him the same thing. Rather than confront Lambert about these threats, defendant knocked on his bedroom door because he saw there was pizza in the house and asked if his family could eat some of the pizza. Lambert was “calm, cool, collected, and he said that’s fine.” Five or ten minutes later, Lambert came out of the room and, as defendant put it, “started talking about how we were talking trash about [V.] and he was upset about that” and went “back and forth between he was moving out to he wanted us to move out in 30 days to he wanted us out that day to us out at the end of the week.” At the end of the conversation, which included some yelling and cussing on the part of Lambert, defendant agreed they would be out at the end of the week and Lambert went back to his room.

About half an hour later, Carbahal initiated a conversation with defendant about Carbahal’s drug abuse and asked defendant to take him to the methadone clinic. Defendant initially said no because he was “frustrated” and “very upset” with Carbahal for being high around the children. As defendant summarized what transpired next in the conversation: “I started to walk away. And he called back at me again, said and yelled please. And I turned back at him and he had, like, this look in his eyes like a child and he started to cry. And I’m, like, what? He’s, like, can you take me to get my meds, please?” Ultimately, defendant agreed to take Carbahal to the clinic the next day because he “felt bad for him” and “was still his friend,” as defendant put it: “I didn’t want to turn my back on him.”

At this point in the conversation, according to defendant, Lambert came out of his room and into the living room. Defendant gave Lambert “a friendly hey,” prompting Lambert to deliver a “hockey body check shove” that knocked defendant off of the arm of the couch and onto the floor, causing him to hit his head in the entryway of the house. Lambert then went into the kitchen and broke some glasses and a plate. When defendant got up, he told Lambert: “I’m not going to put my family in danger over [V.], you, and this whole situation.” Defendant believed “evacuating” was his family’s only option. As he started walking towards the hallway, defendant “didn’t even get a chance to react” before Lambert charged at him, saying, “you’re gonna talk shit about my girl, I’ll fucking kill you.” Lambert then grabbed defendant by the throat with both hands, carried him “five or six feet,” and “slammed [him] onto the couch.” On the couch, Lambert straddled defendant with his knee on his diaphragm and choked him with both hands for 30 to 40 seconds, during which he made various threats, including that he would kill defendant and his “whore wife.” Then Lambert released defendant’s neck with one of his hands and repeatedly punched him in the face.

Defendant “was starting to pass out” when Lambert reached for his gun and, as defendant described, “he had this look in his eye like the wolf wants to eat me.” Defendant “was scared to death” and also reached for the gun, but only to try to keep it holstered. When Lambert managed to remove the gun, defendant yelled for Carbahal to help, but he was “just sitting there in his own little world.” Defendant and Lambert struggled for control of the gun. Carbahal eventually grabbed the gun as well, but defendant did not want him to have it either considering his mental illness and drug use. During this three-way struggle for control of the gun, K. came into the living room and jumped onto Lambert’s back. Carbahal then pulled defendant’s hands away from the gun. Lambert, now with “full control” of the gun, “went back to choking” defendant. As defendant was starting to pass out for the second time, he heard K. pleading for his life and then heard the revolver “go from double action to single action” just before it discharged for the first time.

The discharge caused Lambert to stumble backwards and “somehow” defendant got his gun back. Defendant then yelled for K. to protect the children and told Carbahal to call 911 because he did not know whether anyone had been hit by the bullet. At this, Lambert said, “call the cops on me, I’ll fucking kill you” and again charged at defendant. Still “breathing very heavy” and “in a lot of pain,” defendant fired the gun at Lambert in order to stop the threat to himself and protect his family from what he believed “would have been a massacre” if Lambert got the gun back. Defendant did not know whether Lambert was hit or not, but he fell to the floor on his hands and knees. Then, “quickly and effortlessly,” Lambert went from that position to “taking a knee like a football player” to being “almost upright.” Lambert said, “you and your family are fucking dead” as he quickly rose to his feet. Still afraid for his life, defendant fired the fatal shot.

We recount additional evidence relevant to the issues raised in this appeal in the discussion portion of the opinion, to which we now turn.

DISCUSSION

I

Confrontation Violation

Defendant contends the trial court prejudicially abused its discretion and violated his right of confrontation under Crawford, supra, 541 U.S. 36, by admitting testimonial hearsay over defendant’s timely hearsay objection. The Attorney General responds by arguing the confrontation claim is forfeited for failure to object on that basis below, the challenged statement was not actually admitted into evidence, the statement was not hearsay anyway, and any error was harmless. Anticipating the Attorney General’s forfeiture argument, defendant alternatively asserts his trial counsel provided constitutionally deficient assistance by failing to raise this confrontation claim below. We need not decide the forfeiture issue because whether we address the confrontation claim directly or through the rubric of ineffective assistance of counsel, we conclude the confrontation violation in this case was harmless under either standard for assessing prejudice.

A.

Additional Background

During defendant’s cross-examination, the prosecutor questioned him concerning several phone conversations he had with K. while he was in jail. In one of these phone calls, defendant told K. that Lambert grabbed his gun. K. responded: “Oh he did?” Later, defendant told K. “we need to make the case for deprivation of force.” In another phone call, they argued over the facts of the shooting, specifically Lambert’s position when defendant fired the two shots that ended his life. In that conversation, when defendant said, “he fuckin’ pulled my gun and was pointing,” K. interjected, “Yes,” but then disagreed with defendant’s conclusion of the sentence, “and was pointin’ it right at me,” saying: “No he pushing it . . . [¶] . . . [¶] towards your face. He was pushing it.” After defendant finished his version of how the first shot was fired, K. said: “I – I yeah. See I – I don’t – yeah – I don’t – I don’t remember.” Defendant also told K. their “job” would be to “discredit” Carbahal, to which K. acknowledged “he did see more than I did.” During a third conversation, after defendant described what was required for the shooting to have been in self-defense, K. said, “it’s not like you chose – you did not choose to take out the gun[.]”

After questioning defendant about these conversations, the prosecutor asked defendant whether he had read all of the police reports in the case. Defendant said he had. The prosecutor then asked whether he wanted to discredit Carbahal because he said defendant was the one who pulled out the gun. Defendant said he did not recall. The prosecutor asked whether Carbahal’s testimony was true, specifically that defendant did pull out the gun, and that Lambert said as much during their struggle for the gun. Defendant disagreed with both portions of Carbahal’s testimony and agreed with the prosecutor that this disagreement was “part of the reason” he wanted to discredit Carbahal. Then, the prosecutor asked defendant whether K. “makes the same comment that — to the police that you pulled the gun out first and then [Lambert] makes a comment about you pull[ing] the gun out[.]” Defense counsel objected on hearsay grounds. The trial court overruled the objection. The prosecutor then restated the question: “In the police report your wife tells the police I believe on two occasions that it was you who pulled the gun out; correct?” Defense counsel again objected on hearsay grounds. Following an off-the-record discussion, the trial court again overruled the objection, stating: “For the effect on the hearer I would permit the question to be asked.” After the prosecutor repeated the question a third time, defendant answered: “She says that, yes.”

After eliciting defendant’s response, i.e., K. told police defendant was the one who first pulled out the gun, something he knew from having read a police report containing K.’s out-of-court statement, the prosecutor asked defendant whether he agreed with the statement. Defendant disagreed and said he did not believe K. was in the living room when the gun was pulled.

The jury was not instructed K.’s out-of-court statement could not be considered to prove the truth of the matter asserted, specifically that defendant was the one who pulled the gun on Lambert. Moreover, in closing argument, the prosecution told the jury to do just that, arguing they should not believe defendant’s testimony in this regard because “[K.], [Carbahal], and [V.] all in one way or another tell you defendant pulled the gun out.”

B.

Forfeiture

The general rule that a challenge to the admissibility of evidence will not be reviewed on appeal absent a timely and specific objection in the trial court on the same ground urged on appeal applies with equal force to confrontation claims asserted for the first time on appeal. (See People v. D’Arcy (2010) 48 Cal.4th 257, 290; People v. Alvarez (1996) 14 Cal.4th 155, 186.) Defendant’s objection to K.’s out-of-court statement was based solely on hearsay. Such an objection does not preserve his confrontation claim on appeal. (People v. Chaney (2007) 148 Cal.App.4th 772, 779 [hearsay objection in the trial court did not preserve confrontation claim on appeal].)

Defendant does not appear to dispute this. Instead, he argues his failure to object on confrontation grounds below should be excused because the trial court’s conclusion that K.’s statement was not offered for the truth of the matter asserted, and was therefore not hearsay, rendered futile any further confrontation objection. As he correctly observes, the rule laid out in Crawford, supra, 541 U.S. 36, “applies only to testimonial hearsay; the confrontation clause ‘does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted’−that is, for nonhearsay purposes.” (People v. Hopson (2017) 3 Cal.5th 424, 432 (Hopson), quoting Crawford, at p. 60, fn. 9; see also People v. Sanchez (2016) 63 Cal.4th 665, 681 (Sanchez) [“Neither the hearsay doctrine nor the confrontation clause is implicated when an out-of-court statement is not received to prove the truth of a fact it asserts”].) Because the trial court already concluded K.’s out-of-court statement was admissible, not for the truth of the statement, but for the statement’s “effect on the hearer,” defendant argues it would have also overruled any confrontation challenge under Crawford, supra, 541 U.S. 36, rendering such an objection futile.

We decline to decide the matter because even if forfeited, we would still be required to address the confrontation claim indirectly through defendant’s alternative claim of ineffective assistance of counsel. And regardless of whether we assess the claim directly or indirectly, we conclude the confrontation violation in this case was harmless under either standard for assessing prejudice.

C.

Analysis

“The confrontation clause of the Sixth Amendment to the United States Constitution, which is binding on the states under the Fourteenth Amendment, guarantees the right of a criminal defendant ‘to be confronted with the witnesses against him [or her].’ [Citations.] The understanding of the clause’s protections has shifted over time. Although the United States Supreme Court at one time interpreted the clause to bar admission of out-of-court statements that lacked ‘adequate “indicia of reliability” ’ [citation], the court reconsidered this approach in Crawford . . . . Tracing the historical origins of the confrontation right, the court explained that ‘the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.’ [Citation.] Interpreting the clause with this focus in mind, the court held that the Sixth Amendment bars ‘admission of testimonial statements of a witness who did not appear at trial unless he [or she] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.’ [Citations.]” (Hopson, supra, 3 Cal.5th at p. 431.)

As mentioned, the Attorney General argues the challenged statement was not admitted into evidence, the statement was not hearsay, and any error was harmless. Beginning with the first of these arguments, while the Attorney General is correct the police report containing K.’s statement was not admitted into evidence, that is not the only way to bring such hearsay before the jury. The prosecutor first asked defendant whether he had read the police reports, to which defendant said he had, and then asked defendant whether K. told police that he pulled the gun on Lambert, to which defendant answered: “She says that, yes.” These answers adopted the substance of the prosecutor’s questions. (7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 297 [“jury may be instructed . . . not to speculate to be true any suggestion contained in a question asked, unless it was adopted by the answer,” italics added].) Thus, two layers of hearsay were admitted into evidence over defendant’s objection, specifically defendant’s testimony that an out-of-court statement contained in a police report (“K. said X”) indicated K. made an out-of-court statement to the author of that report (“defendant pulled the gun on Lambert”). (See Sanchez, supra, 63 Cal.4th at pp. 674-675.)

We also reject the Attorney General’s argument that K.’s statement was not hearsay, but rather offered for the effect the statement had on the hearer. An example of such a nonhearsay use of an out-of-court statement can be found earlier in defendant’s testimony, in which he said Lambert threatened to kill him and his family prior to the shooting. Lambert’s purported statement was not offered to prove the truth of the statement, i.e., Lambert would in fact kill defendant and his family, but rather to prove defendant, believing Lambert possessed an intent to do so, acted accordingly and fired the gun in self-defense. (See People v. Livingston (2012) 53 Cal.4th 1145, 1162 [statement offered to prove effect on hearer is not hearsay because the hearer’s reaction to the statement is the relevant fact sought to be proved, not the truth of the statement itself].) In contrast, K.’s statement to the investigating officer could not have been offered to prove its effect on the hearer because the investigating officer’s conduct in response to hearing the statement has no relevance whatsoever to the issues sought to be proved in this case. “The nonhearsay purpose must be relevant for the statement to be admissible for that purpose.” (Ibid.)

Nevertheless, the Attorney General argues K.’s statement did have a relevant effect on a different hearer, i.e., defendant. “With [defendant] as the hearer,” the argument goes, “the evidence was clearly relevant” on the question of “whether or not [defendant], in the jail phone calls with his wife, was trying to coach her on what her testimony should be.” This argument conflates the two layers of hearsay noted above. The first layer is the investigating officer’s statement in the police report; the second is K.’s statement to that officer. Defendant may well be the “hearer” of the first layer of hearsay, as the person who read the police report. It may also be true that regardless of whether the officer’s statement in the report (“K. said X”) was true or not, in response to reading that statement, defendant had several conversations with K., in which he attempted to convince her of his version of the shooting. However, this does not account for the second layer of hearsay. As for this layer of hearsay, for the reasons already expressed, K.’s statement to the investigating officer was not admissible for its effect on the hearer. “Multiple hearsay may not be admitted unless there is an exception [or relevant nonhearsay purpose] for each level.” (Sanchez, supra, 63 Cal.4th at p. 675.)

Moreover, as was the case in Hopson, supra, 3 Cal.5th 424, “the jury was never informed of the limited nonhearsay purpose for which [K.’s statement] was ostensibly admitted, and, critically, the prosecution did not use [the statement] for any such limited purpose.” (Id. at pp. 432-433.) Instead, during closing argument, the prosecutor told the jury to use K.’s statement, along with the other evidence in the case, to prove “defendant pulled the gun out,” in other words, to prove the truth of the matter asserted in the statement.

Having concluded the challenged statement was indeed hearsay, we must now determine whether or not the hearsay was “testimonial,” and if so, whether or not K. was “unavailable to testify” and defendant “had a prior opportunity for cross-examination.” (Crawford, supra, 541 U.S. at pp. 53-54.) The Attorney General offers no argument on these points.

With respect to testimoniality, deriving “several basic principles” from the United States Supreme Court’s decision in Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2d 224] (Davis), our Supreme Court has explained: “First, . . . hearsay statements that are testimonial . . . are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined ‘objectively,’ considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial.” (People v. Cage (2007) 40 Cal.4th 965, 984, internal fns. omitted.)

Davis, supra, 547 U.S. 813, involved two companion cases. In the first, “a woman called 911 seeking help because her boyfriend was in the process of beating her. The caller did not testify but her hearsay statements to the dispatcher were admitted in Davis’s subsequent trial. The court concluded that even though the statements were made to a police employee, and some were made in response to the dispatcher’s questions, the caller’s statements were not testimonial . . . because ‘the circumstances of [the] interrogation objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency.’ [Citation.]” (Sanchez, supra, 63 Cal.4th at pp. 687-688.) In contrast, in the companion case of Hammon v. State (2005) 829 N.E.2d 444 at page 446 (Hammon), “police were sent to a home following a report of domestic violence. They were met by [the victim], who initially reported that there had been no problem. When interviewed outside her husband’s presence, she acknowledged he had attacked her. An officer had her ‘ “fill out and sign a battery affidavit” ’ describing the assault. [Citation.] [The victim] declined to testify at the subsequent bench trial but the interviewing officer related her statements and ‘authenticate[d]’ her signed affidavit. [Citation.] The high court concluded the statements were testimonial hearsay. ‘It is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct’ and ‘[t]here was no emergency in progress. . . .’ [Citation.] Although acknowledging the in-the-field interview was less formal than the station house questioning in Crawford, the court nevertheless reasoned ‘[i]t was formal enough’ and ‘[s]uch statements under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial.’ [Citation.]” (Sanchez, supra, at p. 688.)

Here, defendant testified that after the shooting, he told K. to call 911 and then locked the gun in a box and waited for law enforcement officers to arrive. When the responding officers arrived, everyone exited the house except V., who had gone to Lambert’s bedroom after the shooting and remained there until officers entered the house and brought her outside as well. Officers then located the lock box containing the gun defendant used to kill Lambert. K. provided them with the key to unlock the box. After making sure the box contained the weapon, one of the officers secured it in his patrol vehicle. The record does not reveal when exactly K. was questioned. However, nothing about this sequence of events suggests an ongoing emergency. Lambert was dead when the officers arrived. Defendant admitted to being the shooter and secured his own weapon prior to their arrival. As in Hammon, supra, 829 N.E.2nd 444, and unlike Davis, supra, 547 U.S. 813, we conclude K. was questioned, not as part of an investigation into an ongoing emergency, but as part of an investigation into possibly criminal past conduct. And while “the in-the-field interview was less formal than the station house questioning in Crawford, . . . ‘[i]t was formal enough’ and ‘[s]uch statements under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial.’ [Citation.]” (Sanchez, supra, at p. 688.)

Finally, there being no dispute defendant had no prior opportunity to cross-examine K. concerning her statement to the investigating officer, we conclude the admission of this testimonial hearsay violated defendant’s right of confrontation. However, as we explain immediately below, the violation was harmless regardless of whether we assess prejudice under the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705] or under the reasonable probability standard used for assessing claims of ineffective assistance of counsel under Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674].

D.

Prejudice

In assessing prejudice, we first note the case against defendant for murder was strong. However, the jury did not convict defendant of murder, instead convicting him of voluntary manslaughter. The case against defendant for that crime was overwhelming. As we have previously set forth in some detail, the testimony of Carbahal and V. provided a compelling version of events in which defendant was physically assaulted by Lambert after defendant called V. a “tweaker.” Lambert, much larger than defendant, quickly got the upper hand in the fight and was choking and punching defendant when defendant pulled out his gun to defend himself. At this point, Lambert and defendant struggled for possession of the gun, K. jumped onto Lambert’s back to try to pull him off of defendant, and Carbahal also joined in the struggle for the gun. The gun discharged, hitting no one, but knocking Lambert and Carbahal to the ground. Defendant, now in sole possession of the gun, pointed and fired a second round at Lambert, hitting him in the jaw. Lambert fell face down on the floor. As Lambert struggled to get up, “like he was trying to do a pushup,” defendant took two steps towards him and fired a third round into the back of Lambert’s head, killing him. The testimony of Carbahal and V., supporting this account of the shooting, was materially consistent both with each other’s testimony and with their prior statements to police, and was also consistent with the forensic pathologist’s testimony describing the injuries suffered by Lambert.

In contrast to this account, defendant’s version of the shooting was inherently unbelievable. We decline to repeat it here, except to point out that defendant’s vague account of “somehow” getting his gun back after it initially discharged was itself less than convincing. More importantly, however, his testimony that Lambert “quickly and effortlessly” rose from the floor after being shot the first time, while saying, “you and your family are fucking dead,” was impossible given the nature of the first gunshot wound inflicted upon Lambert. That bullet hit Lambert in the jaw, traveled through the soft tissues of his neck, fracturing the cervical vertebrae, and lodged in his back. We have no doubt he was trying to get up, as Carbahal described, but no reasonable juror would have believed he was quickly and effortlessly rising to his feet while threatening defendant and his family when the fatal shot was fired. Thus, even if the jury believed that defendant believed he needed to fire that shot in self-defense, no reasonable juror would have found such a belief reasonable.

Stated simply, based on the compelling testimony of both Carbahal and V., their prior statements to police, the forensic pathologist’s testimony, and defendant’s patently incredible account of events, the very best defendant could have hoped for was a voluntary manslaughter conviction.

Turning to the likely impact of K.’s out-of-court statement that defendant pulled the gun on Lambert, we acknowledge this statement corroborated the testimony of Carbahal and V. in this regard, and undermined defendant’s contrary testimony. However, whether defendant or Lambert was the first to pull out the gun was not very important in terms of defendant’s culpability. Assuming for purposes of analysis that K.’s statement was not admitted, and without the statement the jury believed defendant’s testimony that Lambert pulled the gun on him, the first discharge of the gun was the result of a struggle for the gun, did not result in anyone being hit, and there was no dispute defendant had sole possession of the gun when he intentionally fired the second two rounds at Lambert. The important shot for purposes of assessing defendant’s culpability was the final shot. And as we have explained, defendant’s testimony with respect to the circumstances under which he fired that shot was unbelievable for reasons independent of K.’s statement regarding who initially pulled out the gun. Moreover, even without this statement, the jury would have understood K. did not agree with defendant’s account of events from the various jailhouse phone calls admitted into evidence.

We have no difficulty concluding beyond a reasonable doubt that K.’s out-of-court statement concerning defendant pulling out the gun did not contribute to defendant’s voluntary manslaughter conviction.

II

Instructional Error

Defendant also claims the trial court prejudicially erred and violated his federal constitutional rights by instructing the jury with CALCRIM Nos. 3471 and 3472. Defendant did not object to the latter instruction and has therefore forfeited his claim that it was not supported by the evidence unless the error affected his substantial rights. (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) Even assuming both instructions were improperly given, these assumed errors were harmless.

CALCRIM No. 3471, as given to the jury in this case, provides:

“A person who engages in mutual combat or who starts a fight has a right to self-defense or imperfect self-defense, only if:

“1. He actually and in good faith tried to stop fighting;

“2. 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

“3. 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, 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.”

CALCRIM No. 3472, as given to the jury, provides: “A person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force.”

Defendant argues these instructions were not supported by the evidence because there was no substantial evidence supporting a finding he engaged in mutual combat or started the fight with Lambert, or that he provoked the fight or quarrel intending to create an excuse to use force. We decline to decide the matter because, even if defendant is correct, his “assertion that no substantial evidence supported the instruction[s] does not warrant our finding reversible error because the jury is presumed to disregard an instruction if the jury finds the evidence does not support its application.” (People v. Frandsen (2011) 196 Cal.App.4th 266, 278.) Moreover, as we have already explained in detail, the evidence overwhelmingly established defendant’s conduct, at the very least, amounted to voluntary manslaughter.

Any error in giving the jury these instructions was manifestly harmless under any standard of prejudice.

III

Cumulative Prejudice

Finally, for all of the reasons previously expressed, we further conclude the cumulative prejudicial effect of the confrontation violation and assumed instructional errors does not require reversal.

DISPOSITION

The judgment is affirmed.

/s/

HOCH, J.

We concur:

/s/

ROBIE, Acting P. J.

/s/

MURRAY, J.