1

Filed 5/14/13 P. v. Bilbrey CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES S. BILBREY,

Defendant and Appellant.

 A129236

 (Solano County

 Super. Ct. No. VCR198866)

James S. Bilbrey appeals from his conviction for attempted murder (Pen. Code,1

§§ 187, subd. (a), 664), aggravated mayhem (§ 205), and assault with a deadly weapon 

(§ 245, subd. (a)(1)). Bilbrey makes the following assertions of error: (1) insufficient 

evidence supported his specific intent to kill or to maim; (2) the trial court failed to 

instruct the jury with CALCRIM No. 570; (3) the trial court wrongfully instructed the 

jury with CALCRIM Nos. 3471 and 3472; (4) the prosecution violated its discovery 

obligations, seriously prejudicing his case; (5) he was denied effective assistance of 

counsel because his trial counsel withdrew a request for a mistrial, even though the trial 

court was willing to grant the request; (6) less significant errors operated in combination 

to create reversible error; and (7) his sentence of life in prison, with the possibility of 

parole, constitutes cruel and unusual punishment.

We affirm the judgment of the trial court.

 

1

 Unless otherwise indicated, all statutory citations are to the Penal Code. 
2

BACKGROUND

I. Procedural Background

On March 13, 2009, an information was filed charging Bilbrey with attempted 

murder (§§ 187, subd. (a), 664), aggravated mayhem (§ 205), assault with a deadly 

weapon (§ 245, subd. (a)(1)), and battery causing serious bodily injury (§ 243, subd. (d)). 

The information also alleged, for each of the four counts, that Bilbrey personally inflicted 

great bodily injury (§ 12022.7, subd. (a)) and personally used a deadly and dangerous 

weapon (§ 12022, subd. (b)(1)). 

On December 11, 2009, a jury found Bilbrey guilty on all four counts and found 

true the two sentencing allegations.2 On June 2, 2010, the court denied Bilbrey‟s motion 

for a new trial and proceeded to sentencing. 

At sentencing, the court dismissed the fourth count (battery causing severe bodily 

injury), along with its enhancements, as a lesser included offense. The court used the 

count of attempted murder as the principal determinate count and imposed the midterm of 

seven years, plus three years for the section 12022.7, subdivision (a), enhancement, plus 

one year for the section 12022, subdivision (b)(1), enhancement—for a total base term of 

11 years. On the assault count, the court imposed the midterm and stayed the sentence 

and enhancements pursuant to section 654. On the count of aggravated mayhem, the 

court imposed an indeterminate term of life with the possibility of parole, to run 

concurrently with the determinate term. 

On June 10, 2010, Bilbrey filed a timely notice of appeal. 

II. Evidence Presented at Trial

A. The Prosecution Case

1. The Argument Outside the Bar

In the early morning hours of July 13, 2008, David Apple, Michael McDaniel, 

Melvin Black, and Andrew Buchanan were at the Past Time bar on First Street in 

 

2

 The jury verdict form did not ask the jury to make a finding concerning the 

section 12022.7, subdivision (a), enhancement attached to the section 243, subdivision 

(d), count.
3

Benicia. Apple identified Bilbrey as being in the bar that night, along with a friend of 

his, David Becchio.3 Apple heard Bilbrey say to someone, “I‟m from Richmond.” 

McDaniel also remembered Bilbrey and Becchio being in the bar, noticing them because 

they were confrontational and stared at people. Buchanan said that inside the bar, Bilbrey 

seemed upset and rude, talking in a disrespectful manner to people with whom he came in 

contact. 

Around 2:00 a.m., Apple left the bar to make a phone call. While talking on the 

phone, Bilbrey bumped him from behind. Apple turned around and said, “What‟s going 

on? What‟s your problem?” or “Dude, what the fuck?” Bilbrey responded, “I‟m from 

Richmond.” Apple said: “It‟s not where you‟re from. It‟s where you‟re at.” or “The hell 

with Richmond. We‟re in Benicia.” At this point Apple and Bilbrey squared off, as if to 

fight. McDaniel, Black, and Buchanan witnessed all or part of this confrontation. 

Someone said that Bilbrey had a knife and McDaniel pulled Apple back. Both 

Apple and Black saw Bilbrey holding a knife. According to Buchanan, Bilbrey said he 

had a knife and wanted to fight. 

Benicia Police Officer Mark Simonson was on patrol and noticed the men arguing 

outside the Past Time bar. Simonson drove between the two groups and told them to go 

their separate ways. He told Bilbrey and Becchio to walk north on First Street, while 

Apple and his friends walked west on H Street. 

Simonson then contacted Bilbrey and Becchio about two blocks up First Street. 

Bilbrey said there had been an argument at the bar, but there was no problem and they 

would like Simonson to call a cab for them. Simonson asked police dispatch to call a cab 

company and have a cab sent, but about 30 seconds later a cab came down First Street. 

The driver, Ernest Alameda, said he was en route to a fare, but would call and ensure that 

another cab was coming. Simonson departed while Alameda was still on the scene. 

 

3

 The witnesses all described Bilbrey‟s friend as the taller of the two. It was 

uncontested during trial, and confirmed by Bilbrey, that Bilbrey‟s companion was 

Becchio. In reciting the facts, we refer to Becchio by name, even when the witnesses 

were not able to name the companion.
4

2. Joseph and Rachelle Tomada’s Accounts

Joseph Tomada and his sister, Rachelle Tomada (Rachelle), were also at the Past 

Time bar that evening. They left the bar when it closed at 2:00 a.m., and walked down 

First Street intending to go to Rachelle‟s condominium. As they walked, they heard 

some people talking and cursing, but did not know where the words were coming from, 

and did not think the words were directed at them. Tomada heard the voices say they 

were from Richmond and he yelled out “Faggots,” and told whoever it was to go back to 

Richmond. Tomada and Rachelle then heard people coming up behind them and 

Rachelle heard someone say, “What the fuck did you call me?” or “What the fuck did 

you say?” Rachelle turned around and saw Bilbrey, holding a knife in his hand, and 

Becchio. 

Tomada heard Rachelle say, “He has a knife,” turned around, and saw Becchio in 

front of him. Bilbrey was standing to the side with a knife in his hand. Becchio swung at 

Tomada after saying, “You going to be a little bitch?” Tomada returned the punch, 

hitting Becchio on the chin. Becchio fell to the ground, got up, and charged Tomada. 

Tomada hit Becchio in the face and Becchio again fell to the ground. 

As Tomada struck Becchio the second time, Bilbrey hit him in the face. Tomada 

saw a white flash, and everything went black. He backed up, trying to rub his eyes, and 

felt something go into his mouth. He felt his teeth break and something slide in and cut 

his tongue. Tomada felt his face and it seemed to him “like a giant razor cut” down the 

side of his face and he felt his “whole face kind of flap” when he exhaled. He realized he 

had been cut and he threw a punch at the face of the brown shadowy figure he could 

perceive in front of him. Bilbrey fell to the ground and Tomada felt something in his leg 

that caused him to buckle and fall on top of Bilbrey. Tomada continued punching 

Bilbrey on the ground, trying to hold down the hand in which Bilbrey held the knife. 

Eventually, the struggle on the ground stopped and someone helped Tomada up 

and led him to a taxi where he laid across the trunk. 
5

3. Ernest Alameda’s Account

After Alameda had called for a cab for Bilbrey and Becchio, he made a U-turn on 

First Street and saw the two running up to Tomada and Rachelle. One of them had a 

shiny thing in his hand that looked like a knife. Alameda thought this did not look right, 

so he turned around again and parked, at which point the men were fighting. Alameda 

pushed Becchio away when Becchio tried to get involved in the fight that was now 

between Bilbrey and Tomada. Three males came running up when the fight was over and 

separated Bilbrey and Tomada, taking Tomada to Alameda‟s cab. None of these three 

men punched or kicked Bilbrey or Becchio. 

4. Michael McDaniel’s Account

After Simonson broke up the argument in front of the Past Time bar, McDaniel, 

Black, Buchanan and Apple began walking to the house in which the latter three lived, 

making a left from First Street going towards Second Street. The group turned onto 

Second Street but instead of proceeding towards the house, they took an alley that led 

back to First Street.4 McDaniel could not explain why they went back to First Street—

“[i]t was just a split decision.” 

When he reached First Street, McDaniel saw Tomada and Bilbrey “squared up” 

and “confrontational” across the street. Becchio was 20 feet away from them. McDaniel 

saw Tomada and Bilbrey swing at each other at the same time. Both fell, with Tomada 

on top of Bilbrey. They threw blows back and forth on the ground for 30 to 40 seconds. 

When the fighting stopped, McDaniel and Buchanan crossed the street and called Black, 

who was around the corner and arrived moments later. Black helped Tomada to a taxi. 

Neither he, Black, nor Buchanan punched or kicked Bilbrey at any time. 

 

4

 Apple testified that he did not accompany the others back to First Street and 

McDaniel said that Apple was not on the scene of the fight. Apple testified that he was 

picked up and driven home by his cousin‟s wife. However, in his initial statement to 

police, Apple said that shortly after separating from the others he received a call that 

“[t]he Richmond boys” were “at it again” and he went back to First Street to see what had 

happened, arriving to see Tomada covered in blood. 
6

5. Melvin Black’s Account

Black testified that as he walked home, he received a phone call from Buchanan 

and in response to that call went back to First Street. He went through the same alley that 

McDaniel described and, from inside the alley, observed the fight between Tomada and 

Bilbrey across First Street. He saw Tomada and Bilbrey facing each other, with Becchio 

next to Bilbrey. Tomada and his sister were arguing with Bilbrey and Becchio and 

Rachelle was trying to pull Tomada away, telling Bilbrey and Becchio to leave. Black 

did not know who started the argument. Bilbrey was holding something shiny, but Black 

could not see what it was. 

Tomada and Becchio squared off and swung at each other. Becchio stumbled to 

the ground and Bilbrey came up and hit Tomada with the hand holding the shiny object 

Black had previously noticed. Tomada screamed and Black decided to run across the 

street. Tomada stumbled back and then swung at Bilbrey. As Tomada hit Bilbrey, 

Bilbrey swung again and they both dropped to the ground, with Bilbrey on his back and 

Tomada on top of him. Black saw Bilbrey‟s hands “on the side just waving back and 

forth” while Tomada was “swinging downward on him.” Bilbrey was still holding the 

shiny object and Tomada was trying to hold the hand that held the object. The struggle 

on the ground continued for about 10 seconds by the time Black ran over. As he ran 

across the street, he noticed Buchanan and McDaniel, whom he had not seen before 

because they were already on First Street while he was still inside the alley. Black saw a 

pool of blood and he stepped on Bilbrey‟s arm and pulled a knife from his hand, throwing 

it into the street. He helped Tomada up and started to walk him over to a taxi. Neither 

he, McDaniel, or Buchanan punched Bilbrey or Becchio. 

6. Andrew Buchanan’s Account

Buchanan testified that he went through the alley back to First Street with 

McDaniel and that Black joined them later. Bilbrey was on First Street, across the street 

from the alley and Becchio was standing back 10 to 15 feet from Bilbrey. Tomada and 

Bilbrey were already fighting when he saw them. Bilbrey had a knife and it appeared to 

Buchanan that Tomada was trying to fight Bilbrey off. He saw Bilbrey stab Tomada 
7

approximately three times and Tomada was trying to hit Bilbrey. Tomada landed two or 

three punches and wrestled Bilbrey to the ground. Bilbrey continued trying to stab 

Tomada and they struggled on the ground for 60 to 90 seconds. He and McDaniel 

crossed the street and Black picked Tomada off of Bilbrey, covered in a large amount of 

blood, after taking the knife from Bilbrey‟s hand and throwing it aside. They tried to 

move Tomada toward a cab. Neither he, Black, or McDaniel punched Bilbrey or 

Becchio. 

7. Following the Fight

Simonson had just returned to the police station after calling a cab for Bilbrey and 

Becchio when he received a dispatch for a knife brandishing on First Street. He arrived 

on the scene to find Tomada leaning over the back trunk of a cab, bleeding badly. 

Becchio was sitting nearby on the curb and Bilbrey was lying motionless on the sidewalk 

with a number of facial injuries. 

Tomada and Bilbrey were transported to a hospital. Tomada had a six-centimeter 

laceration on his cheek, about one to one and one-half centimeters deep, two to three 

inches from the carotid artery; a through-and-through laceration of the tongue; and a 

penetrating wound to the floor of his mouth, two to three inches from the jugular vein. 

Tomada‟s right eye was split open from front to back. Tomada now has no vision in that 

eye, which will not recover. Tomada also suffered nerve injury to his left eye and does 

not have full sight in that eye. According to Tomada, his left eye has 20/80 vision, 

making him legally blind. He testified that a third of his tongue is hard scar tissue and he 

can taste nothing but saltiness in that portion of the tongue. He lost halves of two teeth 

and he has a scar where he was cut on the face. 

Bilbrey was diagnosed with a traumatic brain injury and disconjugate gaze, 

meaning that his eyes were not working in synch. 

Officer Kenneth Hart spoke with Bilbrey at the hospital. Bilbrey stated that he 

had been drinking in the Past Time bar with Becchio and that there had been a nonphysical argument with some young men, who had called him a punk. He and Becchio 

then walked down the street and asked an officer to call them a cab. The officer 
8

requested that a cab be sent and left the scene. Bilbrey then said that he and Becchio got 

into an argument with a man who was walking with a woman. During the argument, the 

man punched Bilbrey, knocking him down. Bilbrey walked across the street, but when 

he turned, he saw Becchio fighting the man. Bilbrey returned and was punched and 

knocked down again. Bilbrey told Hart that this was all he remembered and that he did 

not remember who had started the fight. 

Bilbrey told Hart that he didn‟t remember if he had a knife and denied brandishing 

a knife in front of the bar. Bilbrey then admitted that he might have cut Tomada and said, 

“I think I cut him when I went down the second time.” Bilbrey then told Hart that he was 

swarmed by a group of people who began punching and kicking him. While he was 

down, he was able to pull the knife out of his pocket, open it, and cut Tomada. Bilbrey 

never mentioned being threatened by a group of people in front of the bar and never 

mentioned fearing for his life. 

B. The Defense Case

Bilbrey testified that he carried a knife for protection because he had been beaten 

and robbed in the past. On the night of his fight with Tomada, Bilbrey had the knife 

clipped onto the top of his pants. 

Bilbrey said that he and Becchio went to the Past Time bar around 1:00 a.m. 

While in the bar, he did not mention Richmond and did not threaten or intimidate anyone. 

At last call, Bilbrey made a comment to a woman that apparently offended her. When he 

left the bar a few minutes later, Apple confronted him about the comment, asking, “Why 

did you disrespect my friend?” McDaniel, standing next to Apple, said: “What the fuck 

is your problem? Do you want to get fucked up?” Bilbrey said he was sorry if he 

offended anyone and didn‟t want any problems. He went back into the bar to get Becchio 

and when they exited, Apple and McDaniel again confronted and harassed them. They 

began to walk away and Becchio yelled, “Fuck you, punks.” The group in front of the 

bar then began threatening them and someone yelled, “You better fuckin‟ keep walking 

or you are going to get shot.” Bilbrey turned and said: “Fuck you, punks. Don‟t threaten 
9

me. I already said I was sorry, and I told you we were leaving.” Bilbrey also said that he 

was from Richmond and was not scared of them. 

The men started walking toward Bilbrey and he became scared. He took the knife 

off of his pants, opened it and held it up in the air, saying, “Don‟t do it. Back off.” 

Bilbrey put the knife back on his pants and he and Becchio turned and started walking up 

First Street. They sat down on a bench about two blocks up First Street and Bilbrey saw 

Tomada and Rachelle across the street, arguing and yelling at each other. A police 

officer pulled up and broke up the argument. Becchio flagged down the officer and asked 

if he could call a cab for them. The officer told them they would have to get their own 

cab. Bilbrey told the officer that he was scared because of an argument in front of the bar 

in which he had been threatened, but the officer told them to keep walking and drove 

away. 

Just before the officer left, Bilbrey and Becchio flagged down a cab. The cab 

driver said he had a fare in front of them and couldn‟t give them a ride. Tomada and 

Rachelle then crossed the street to the cab, stepped onto the sidewalk near Becchio, and 

started yelling at them about taking their cab. Bilbrey yelled back that they weren‟t 

taking the cab and Tomada punched him on the side of the head. Bilbrey fell to the 

ground and saw Tomada coming at him as he got up. Bilbrey started across the street to 

get away, but when he turned around, he saw Becchio and Tomada in a wrestling hold. 

He then heard yelling and screaming from the west side of the street and saw McDaniel, 

with what looked like a two-foot-long pipe or stick in his hand, accompanied by someone 

else. McDaniel yelled, “What is up now? You are dead, motherfucker.” Bilbrey yelled 

at them that cops were on the way in order to get them to back off. 

Tomada then came in Bilbrey‟s direction, so Bilbrey put his knife out in front of 

him and yelled at Tomada to back off. Tomada swung at Bilbrey and Bilbrey struck back 

with the knife. It felt to Bilbrey that he had made contact with Tomada, but he did not 

see where he hit him. Tomada‟s punch connected and Bilbrey was knocked to the 

ground. Bilbrey was not able to get back up and had not intentionally stabbed Tomada in 

the eye, mouth or face. When on the ground, multiple people started punching and 
10

kicking him at the same time and he was swinging his hands, still holding the knife. He 

was knocked unconscious and woke up at the hospital. He could not see straight for 

about a week. 

The defense also presented evidence concerning prior incidents of violence by 

Tomada. In rebuttal to that evidence, the prosecution introduced evidence of an incident 

in El Cerrito, four days before the fight between Tomada and Bilbrey. Reid Ainsworth 

testified that Bilbrey had brandished his knife and threatened to cut him. 

DISCUSSION

I. Sufficiency of the Evidence

Bilbrey attacks his convictions for attempted murder and aggravated mayhem, 

contending that there was insufficient evidence of specific intent to kill or to maim. 

A. Standard of Review

“ „The proper test for determining a claim of insufficiency of evidence in a 

criminal case is whether, on the entire record, a rational trier of fact could find the 

defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the 

evidence in the light most favorable to the People and must presume in support of the 

judgment the existence of every fact the trier could reasonably deduce from the evidence. 

[Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of 

solid value, nonetheless it is the exclusive province of the trial judge or jury to determine 

the credibility of a witness and the truth or falsity of the facts on which that determination 

depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must 

accord due deference to the trier of fact and not substitute our evaluation of a witness‟s 

credibility for that of the fact finder. [Citations.]‟ ” (People v. Ochoa (1993) 6 Cal.4th 

1199, 1206, quoting People v. Jones (1990) 51 Cal.3d 294, 314.) 

B. Aggravated Mayhem

Bilbrey was charged with a violation of Penal Code section 205, which provides: 

“A person is guilty of aggravated mayhem when he or she unlawfully, under 

circumstances manifesting extreme indifference to the physical or psychological wellbeing of another person, intentionally causes permanent disability or disfigurement of 
11

another human being or deprives a human being of a limb, organ, or member of his or her 

body. For purposes of this section, it is not necessary to prove an intent to kill. 

Aggravated mayhem is a felony punishable by imprisonment in the state prison for life 

with the possibility of parole.”

“Aggravated mayhem is a specific intent crime which requires proof the defendant 

specifically intended to cause the maiming injury, i.e., the permanent disability or 

disfigurement. [Citation.] „[S]pecific intent may be inferred from the circumstances 

attending an act, the manner in which it is done, and the means used, among other 

factors.‟ [Citation.] Thus evidence of a „controlled and directed‟ attack or an attack of 

„focused or limited scope‟ may provide substantial evidence of such specific intent. 

[Citation.] However, where the evidence shows no more than an „indiscriminate‟ or 

„random‟ attack, or an „explosion of violence‟ upon the victim, it is insufficient to prove a 

specific intent to maim. [Citation.]” (People v. Quintero (2006) 135 Cal.App.4th 1152, 

1162.)

Bilbrey contends that there was not substantial evidence of a “controlled and 

directed” attack or an attack of “focused or limited scope.” He characterizes his fight 

with Tomada as a “wild melee” in which the “indiscriminate nature of the attack is shown 

by the multiple blows to markedly differing areas of Tomada‟s body—shoulder, knee and 

face.” He claims that “[t]here was no evidence to suggest [Bilbrey] specifically aimed at 

Tomada‟s face or that he made a focused jab or stab with the knife at Tomada‟s mouth.” 

Bilbrey requests that we reduce the charge to simple mayhem (Pen. Code, § 1260). 

Tomada testified that before exchanging blows with Becchio, Bilbrey was 

standing to the side with a knife. As he finished landing his second blow on Becchio, 

Bilbrey hit him in his face. Tomada saw a white flash, and everything went black. 

Tomada backed up, trying to rub his eye, and felt something go into his mouth, cutting 

his tongue and breaking his teeth. 

As Tomada and Becchio fought, Bilbrey was uninvolved and a jury could 

reasonably conclude that Bilbrey had an opportunity to decide if, how, and where he 

would strike Tomada. For the first blow, Tomada was engaged with Becchio and 
12

Bilbrey, who could have stabbed Tomada anywhere in the body, stabbed him in the face. 

Blinded by this stab wound, Tomada backed up and was again stabbed, this time through 

his open mouth. The jury could reasonably conclude that Bilbrey‟s actions were 

controlled and directed, rather than the result of an indiscriminate attack. Following the 

two initial wounds, Tomada and Bilbrey struggled on the ground, and the subsequent stab 

wounds may well have been the result of indiscriminate action, but that fact does not 

change the character of Bilbrey‟s earlier blows. We conclude that substantial evidence 

supported the jury‟s determination that Bilbrey was guilty of aggravated mayhem and we 

affirm that finding.

C. Attempted Murder

“Attempted murder requires the specific intent to kill and the commission of a 

direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee

(2003) 31 Cal.4th 613, 623.) “Intent to unlawfully kill and express malice are, in 

essence, „one and the same.‟ [Citation.] To be guilty of attempted murder . . . , 

defendant had to harbor express malice toward that victim. [Citation.] Express malice 

requires a showing that the assailant „ “ „either desire[s] the result [i.e., death] or know[s], 

to a substantial certainty, that the result will occur.‟ [Citation.]” ‟ ” (People v. Smith

(2005) 37 Cal.4th 733, 739.)

Bilbrey argues that there was insufficient evidence that he had the specific intent 

to kill Tomada. He also argues, in the alternative, that “even if there was adequate 

evidence of specific intent to kill, the circumstances negated the element of malice 

because the fight occurred in the heat of passion and/or [Bilbrey] acted in imperfect selfdefense or defense of others.” 

“[I]t is well settled that intent to kill or express malice, the mental state required to 

convict a defendant of attempted murder, may in many cases be inferred from the 

defendant‟s acts and the circumstances of the crime. [Citation.] „There is rarely direct 

evidence of a defendant‟s intent. Such intent must usually be derived from all the 

circumstances of the attempt, including the defendant‟s actions. [Citation.] The act of 

firing toward a victim at a close, but not point blank, range “in a manner that could have 
13

inflicted a mortal wound had the bullet been on target is sufficient to support an inference 

of intent to kill . . . .” [Citation.]‟ ” (People v. Smith, supra, 37 Cal.4th at p. 741.)

In People v. Avila (2009) 46 Cal.4th 680, 701-702, the court found that 

defendant‟s repeated attempts, some successful, to stab the victim, who was unarmed and 

trapped, was alone substantial evidence of the defendant‟s intent to kill. In another case, 

the court found that “appellant‟s intent [to kill] was established by the evidence of his 

unprovoked attack that rendered the unarmed victim prone and defenseless as appellant 

repeatedly stabbed him with a shank he had hidden in his boxers.” (People v. Gonzalez

(2005) 126 Cal.App.4th 1539, 1552.) 

Here, the same circumstances and inferences that support a guilty verdict for 

aggravated mayhem also provide substantial evidence supporting a guilty verdict for 

attempted murder. Bilbrey initially stabbed Tomada while Tomada was occupied 

defending himself against Becchio‟s attack. Bilbrey did not try to disable Tomada‟s 

ability to fight by stabbing him in an arm or leg, but instead chose to stab him in the face. 

Bilbrey argues that if he had intended to kill Tomada, he would have attempted to stab 

him in the chest or stomach area, but the head is also a vital area and wounds to the head 

can easily be fatal. Indeed, a physician testified that one of Tomada‟s wounds came 

within two or three inches of his carotid artery and another within two or three inches of 

his jugular vein. After stabbing Tomada in the eye, Bilbrey did not try to gather up 

Becchio and seek safety while Tomada was disoriented by the blinding blow, but 

continued his attack on Tomada, again aiming for Tomada‟s head and stabbing into 

Tomada‟s open mouth. From these circumstances, a jury could reasonably infer the 

requisite intent to kill, and we conclude that substantial evidence supported the jury‟s 

determination that Bilbrey intended to kill Tomada.

Bilbrey contends that even if substantial evidence demonstrated an attempt to kill, 

the evidence also established that he was acting in unreasonable self-defense, defense of 

another, or was reasonably provoked and acting in the heat of passion, and that this court 

should reduce the conviction for attempted murder to attempted voluntary manslaughter. 

On the evidence presented, a reasonable jury could reject all the theories of mitigation 
14

that Bilbrey presents. Based on Tomada‟s testimony, the jury could reasonably view 

Becchio and Bilbrey as joint initial aggressors for whom no right of self-defense or 

defense of another arose. Similarly, one who instigates an altercation cannot claim to be 

justifiably provoked when the victim defends himself. (See People v Johnston (2003) 

113 Cal.App.4th 1299, 1312-1313.)

We affirm the jury‟s finding of guilt on the charge of attempted murder.

II. Instructions to the Jury

A. Failure to Instruct Jury on “Heat of Passion”

The trial court did not instruct the jury that the charge of attempted murder could 

be reduced to attempted voluntary manslaughter if the jury determined that Bilbrey acted 

because of a sudden quarrel or in the heat of passion. Bilbrey contends that the court 

erred in failing to include such an instruction and that this error was prejudicial. 

A trial court has a sua sponte duty to instruct on the general principles of law 

relevant to the issues raised by the evidence. (People v. St. Martin (1970) 1 Cal.3d 524, 

531; People v. Aranda (2012) 55 Cal.4th 342, 354.) “[A] trial court errs if it fails to 

instruct, sua sponte, on all theories of a lesser included offense which find substantial 

support in the evidence. On the other hand, the court is not obliged to instruct on theories 

that have no such evidentiary support.” (People v. Breverman (1998) 19 Cal.4th 142, 

162.) “ „Substantial evidence‟ in this context is „ “evidence from which a jury composed 

of reasonable [persons] could . . . conclude[]” ‟ that the lesser offense, but not the greater, 

was committed.” (Ibid.) 

CALCRIM No. 570 provides, in relevant part: “A killing that would otherwise be 

murder is reduced to voluntary manslaughter if the defendant killed someone because of 

a sudden quarrel or in the heat of passion. [¶] The defendant killed someone because of 

a sudden quarrel or in the heat of passion if: [¶] 1. The defendant was provoked; [¶] 2. 

As a result of the provocation, the defendant acted rashly and under the influence of 

intense emotion that obscured (his/her) reasoning or judgment; [¶] AND [¶] 3. The 

provocation would have caused a person of average disposition to act rashly and without 

due deliberation, that is, from passion rather than from judgment.”
15

Bilbrey argues that both the defense and prosecution cases provided substantial 

evidence which would require the court to instruct the jury on the partial defense of 

acting in the heat of passion. 

For the defense case, Bilbrey argues: “According to [Bilbrey], after taunting him 

and calling him a „faggot,‟ Tomada came up to him, accused him of taking Tomada‟s 

cab, and punched him in the face, causing [Bilbrey to fall] to the ground and feel dizzy. 

[Citation.] He turned around to check on Becchio and saw Tomada and Becchio locked 

in a struggle. [Citation.] [Bilbrey] heard yelling from the west side of the street and 

turned back around to see McDaniel and another man running towards him; McDaniel 

was holding a pipe or a stick and shouting „What is up now motherfucker? You are 

dead.‟ [Citation.] This is more than adequate provocation for [Bilbrey] to panic and 

attack [Tomado].” 

Here, tellingly, Bilbrey argues only that there was adequate evidence of 

provocation, but completely ignores the other two elements: evidence that he was 

actually provoked (i.e., acted rashly under the influence of intense emotion) and that the 

provocation would have caused the average person to act from passion rather than from 

judgment. Bilbrey‟s testimony providing his version of the events is devoid of evidence 

that he acted under the stress of emotion caused by the provocation he describes. Instead, 

Bilbrey‟s testimony was that, terrified for his life, he pulled his knife from his pants, but 

also backed up, with the intent to get away. When, according to Bilbrey, Tomada came 

at him, he held the knife in front of him and yelled “Back off” a number of times. In his 

account, he fought with Tomada only after Tomada started to swing at him. Bilbrey 

painted a picture in which he was forced, against his will, into a fight in order to protect 

his life, not a picture in which he took actions that, though unjustified, were caused by 

intense emotion and not rational judgment. Thus, if we consider the defense case, there is 

no evidence that Bilbrey was actually provoked, and no basis for an instruction on heat of 

passion. 

For the prosecution case, Bilbrey states: “Tomada‟s version also provides 

adequate evidence of provocation. According to Tomada, [Bilbrey] did not strike him 
16

until after he had knocked Becchio down. [Citation] Tomada testified that appellant 

struck him twice before he was able to strike back. This suggests that [Bilbrey] had been 

whipped up into a „[v]iolent, intense, high-wrought or enthusiastic emotion‟ brought on 

by the initial confrontation.” Here, Bilbrey suggests that he was provoked because 

Tomada knocked Becchio down. But if we accept Tomada‟s account, as Bilbrey does 

here for the sake of argument, then Tomada knocked Becchio down because Becchio 

attacked him. No reasonable jury could find that an average person would be so 

provoked by such an act of self-defense as to act from emotion rather than reason.

In Tomada‟s account, Bilbrey and Becchio jointly instigated the altercation and one who 

instigates an altercation cannot claim to be justifiably provoked when the victim defends 

himself. (See People v Johnston, supra, 113 Cal.App.4th at pp. 1312-1313.)

Neither the defense nor the prosecution case presented substantial evidence that all 

the elements of an instruction on heat of passion would be met. There was no error in the 

trial court‟s failure to so instruct the jury. 

B. Instruction on Forfeiture of the Right to Self-Defense

The trial court instructed the jury with CALCRIM Nos. 3471 and 3472. As recited 

to the jury, CALCRIM No. 3471 provides: “A person who engages in mutual combat . . . 

[¶] . . . [¶] or who is the initial aggressor has a right to self-defense only if: One, he 

actually and in good faith tries to stop fighting; two, he indicated by word or by conduct 

to his opponent, in a way that a reasonable person would understand, that he wanted to 

stop fighting and that he has stopped fighting; and three, he gives his opponent a chance 

to stop fighting. If a person meets these requirements, he then has a right to self-defense 

if the opponent continues to fight. [¶] 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 

read to the jury, provides: “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.” 

Bilbrey contends that it was error for the court to give these instructions because 

there was no substantial evidence supporting a conclusion by the jury that Bilbrey and 
17

Tomada engaged in mutual combat or that Bilbrey had provoked the fight with Tomada 

to create an excuse to use force. He further contends that he was prejudiced by these 

alleged errors because they confused “the jury on how to apply the law of self-defense to 

the rather contradictory evidence of the fight and thus undermined [Bilbrey‟s] selfdefense claim.” 

McDaniel testified that he saw Tomada and Bilbrey “squared up” and 

“confrontational” from across the street and that they swung at each other at the same 

time. From this testimony the jury could reasonably conclude that an implied agreement 

to engage in mutual combat existed between Becchio and Tomada.

Black testified that Tomada and Bilbrey faced each other, arguing, and that 

Rachelle was trying to pull Tomada away. Then Tomada and Becchio squared off and 

swung at each other. Because Tomada stayed facing Bilbrey and Becchio, apparently 

resisting Rachelle‟s efforts to pull him away, the jury could again reasonably conclude 

that there was an implied agreement to engage in mutual combat.

Rachelle testified that Bilbrey, with a knife in his hand, and Becchio came up to 

Rachelle and Tomada from behind. Tomada testified that Bilbrey stood to the side, with 

the knife in his hands, while Becchio and Tomada engaged. Only after Becchio and 

Tomada begin a physical confrontation did Bilbrey use his knife against Tomada. The 

jury could reasonably conclude from this account that Bilbrey provoked the fight as an 

excuse to use his knife. Such a conclusion would have been reinforced by accounts of 

the earlier altercation between Apple and Bilbrey in front of the Past Time bar, because 

the jury could reasonably have believed that Bilbrey, again with a drawn knife, was 

attempting to provoke a fight, and was prevented from doing so only by Officer 

Simonson‟s arrival.

We reject Bilbrey‟s assertion of error because the jury could have reasonably 

reached the conclusion that Bilbrey and Tomada engaged in mutual combat or that 

Bilbrey provoked the altercation as an excuse to use force.
18

III. Denial of Motion for a New Trial

After the jury returned its verdict, Bilbrey moved for a new trial. Among the 

errors asserted in that motion, Bilbrey argued, as he does here, that there was insufficient 

evidence of intent to kill, or that the charge of attempted murder should be reduced to 

attempted voluntary manslaughter based on either imperfect self-defense, imperfect 

defense of another, or acting in the heat of passion. 

The trial court denied Bilbrey‟s motion for a new trial after a hearing at which the 

court observed: “[Bilbrey‟s] conduct for the entire evening was such that it gave the 

impression that he was looking for trouble, and there was considerable testimony to that 

effect. The nature of the wounds is a factor and an important factor. These are not 

defensive wounds. This is going at a person‟s face, cheek, and eye. It ties in also to the 

self-defense. [Bilbrey], in his post-incident statements, didn‟t talk anything about selfdefense or being in danger in any way. He is talking about this is just a standard BS 

street fight. The victim said he was stabbed before he punched anyone. There was 

evidence that [Bilbrey] was protecting a friend rather than defending himself, but it 

certainly doesn‟t—the evidence doesn‟t rise to a defense of other given the overall facts.” 

The statement that “[t]he victim said he was stabbed before he punched anyone” 

did not accurately reflect Tomada‟s testimony, which was that Bilbrey did not strike him 

until after Tomada and Becchio were fighting. Bilbrey argues that because the court‟s 

order denying the motion for a new trial was based on an erroneous understanding of the

evidence, the court abused its discretion and that we should remand for a new hearing on 

the motion for a new trial. 

The trial court‟s function, when ruling on a motion for a new trial, “is to „see that 

the jury intelligently and justly perform[ed] its duty and, in the exercise of a proper legal 

discretion, to determine whether there is sufficient credible evidence to sustain the 

verdict.‟ ” (People v. Dickens (2005) 130 Cal.App.4th 1245, 1251.) “A trial court‟s 

ruling on a motion for new trial is so completely within that court‟s discretion that a 

reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of 

that discretion.” (People v. Hayes (1999) 21 Cal.4th 1211, 1260-1261.)
19

When the court cited Tomada‟s testimony, it was considering whether self-defense 

might apply. The issue was whether there was evidence that Bilbrey had been afraid and 

was defending himself. The relevant fact from Tomada‟s testimony was that Bilbrey 

stabbed him before Tomada had punched Bilbrey. That the court said “anyone” rather 

than “Bilbrey” does not change the relevant consideration—that in Tomada‟s testimony, 

Tomada had not placed Bilbrey in a situation justifying self-defense simply by defending 

himself against Becchio‟s attack.

The court then went on to consider defense of another and properly acknowledged 

that there was some evidence supporting that defense—an acknowledgment that there 

was evidence that Tomada hit Becchio before Bilbrey stabbed Tomada. However, the 

court weighed the evidence as a whole and found that “it [did] not rise to a defense of 

other.”

Despite the court‟s minor inaccuracy, we find no indication that the court did not 

properly weigh the evidence as a whole. We discern no abuse of discretion in the court‟s 

determination that there was sufficient credible evidence to sustain the jury‟s verdict.

IV. The Late Disclosure of the El Cerrito Incident

A. Background

The prosecution submitted an in limine motion seeking to exclude evidence of past 

incidents of violence by Tomada. On December 1, 2009, the trial court denied the 

motion, allowing the defense to present testimony about these incidents, pursuant to 

Evidence Code section 1103.5 The trial commenced that day with opening arguments 

and the start of the prosecution‟s case.

Denial of the prosecution‟s motion meant that that the prosecution would be able 

to present testimony concerning past acts of violence by Bilbrey in rebuttal to the defense 

 

5

 Evidence Code section 1103, subdivision (a), allows a defendant to introduce 

evidence of the victim‟s character or trait of character to prove conduct of the victim in 

conformity with the character or trait of character. When a defendant takes advantage of 

that provision, and the character trait in question concerns propensity for violence, 

Evidence Code section 1103, subdivision (b), allows the prosecution to present character 

evidence concerning the defendant‟s propensity for violence. 
20

evidence concerning Tomada. Accordingly, the prosecution requested that the 

investigating officer re-run Bilbrey‟s rap sheet. The first time the officer ran the rap sheet 

on December 2, 2009, it appeared the same as the rap sheet that had originally come to 

the prosecutor from the police department and was subsequently provided to the defense. 

Changing the input data in some fashion,6the officer ran the rap sheet a second time and 

this turned up an allegation that Bilbrey had brandished a knife (a violation of section 

417) at a bar in El Cerrito three nights before his fight with Tomada. Bilbrey was not 

arrested or charged in that incident. 

On December 3, 2009, the prosecution informed the defense about the incident 

and that it would likely offer evidence concerning it. At the end of the day, the trial court 

was informed and defense counsel requested a hearing to determine if such evidence 

should be admitted, “given the very, very late date that it‟s been disclosed.” 

A hearing was held on December 8, 2009, the next day the case was on calendar. 

The prosecutor explained to the court why the El Cerrito incident had not been previously 

discovered. The defense asserted that the prosecution was long aware of defense 

intentions to present evidence concerning Tomada‟s previous acts of violence and had the 

opportunity to rerun Bilbrey‟s rap sheet well before December 2. Defense counsel 

characterized the late disclosure as “trial by ambush,” and suggested that, had she been 

aware of the El Cerrito incident, she might have decided not to present evidence of 

Tomada‟s prior acts of violence This was not an option available to her now, because she 

had told the jury in her opening statement that such evidence would be presented. 

Defense counsel told the court that if it allowed the prosecution‟s evidence, she would 

consider the prejudice sufficiently severe to request a mistrial. 

After considering the arguments of both sides, the court observed: “Now, I don‟t 

think—frankly, I don‟t think it‟s fair to the People to prevent the introduction of the 

evidence that you talk about in this matter. On the other hand, it is not fair—it was not 

 

6

 The prosecutor informed the court that the investigating officer “changed the 

date of birth or something was changed that might assist, I guess, with the pulling of the 

rap.” 
21

fair at the beginning of these proceedings to permit [defense counsel] to go ahead and say 

„We‟re going this way,‟ when maybe she shouldn‟t have gone that way or should have 

made a decision to go the other way. I think it‟s a very serious dilemma, and I think that 

it‟s necessary that the court try to be fair to both sides in this matter.” The court 

continued: “But the way I‟m leaning, frankly, is to grant a mistrial because, one, I think 

that your evidence is relevant; two, I think that [Bilbrey] has been put to a serious 

disadvantage because of the way this came forward. And I‟m not trying to blame 

anybody. I can sort of understand as I listen to both of you, but the fact of the matter is 

that [Bilbrey] has been prejudiced; the fact of the matter is, you have evidence that is 

relevant to these entire proceedings in the way it has been going.” The court concluded: 

“I think in fairness to the People and [Bilbrey], my only recourse is to grant a mistrial, 

and I intend to do so. I do at this point.” 

Defense counsel then asked for a recess, before the court made its ruling final, to 

discuss its legal significance with Bilbrey. Before recessing, defense counsel requested a 

clarification as to what evidence would come in if Bilbrey were to withdraw his request 

for a mistrial. After a clarification that the rebuttal evidence as to Bilbrey‟s propensity 

for violence would be limited to the El Cerrito incident, and would not include evidence 

of other incidents that had been disclosed, defense counsel withdrew the request for a 

mistrial, without recessing for discussion with Bilbrey. 

The following day, defense counsel informed the court that the complaining 

witness in the El Cerrito incident, Reed Ainsworth, “has multiple felony convictions and 

other arrests which appear to be for items involving moral turpitude.” Because she did 

not have the ability or time to investigate so that she could properly cross-examine 

Ainsworth, defense counsel requested that the court disallow the witness. During 

discussion, defense counsel also suggested that a continuance of a week or two would 

allow her to fully prepare to cross-examine the witness. 

The court stated: “In trying to balance the equities between the two sides here, and 

taking into consideration the jury, as well, I am going to permit Ainsworth to testify . . . .” 

The court also stated that defense counsel would be allowed to impeach Ainsworth with 
22

the felony convictions that appeared on his rap sheet. Defense counsel again requested a 

continuance and the court denied the request. 

B Bilbrey’s Attribution of Error

Bilbrey argues that the prosecution “violated its discovery obligations by failing to 

timely disclose impeachment witnesses and springing them on the defense in the middle 

of trial. The trial court then compounded the harm by denying the defense adequate time 

to investigate the new witnesses and to prepare effective cross-examination. This 

sandbagging completely undermined the defense approach and in particular, the 

statements trial counsel made to the jury in opening arguments about Tomada‟s violence, 

and [Bilbrey‟s] lack of violent history.” Bilbrey contends that under the circumstances of 

this case, he was denied his rights to due process and effective assistance of counsel 

under the United States Constitution. 

We disagree with Bilbrey that the prosecution was guilty of a discovery violation. 

Section 1054.1 requires a prosecuting attorney to disclose the names and addresses of all 

persons he or she intends to call as witnesses at trial. This duty includes the disclosure of 

rebuttal witnesses that the prosecutor reasonably anticipates calling at trial. (Izazaga v. 

Superior Court (1991) 54 Cal.3d 356, 375, called into doubt on other grounds in 

Maldonado v. Superior Court (2012) 53 Cal.4th 1112, 1133, fn. 13.) Section 1054.7 

provides: “The disclosures required under this chapter shall be made at least 30 days 

prior to the trial . . . . If the material or information becomes known to, or comes into the 

possession of, a party within 30 days of trial, disclosure shall be made immediately . . . .”

It is true that information about the El Cerrito incident and Ainsworth was not 

provided to Bilbrey 30 days prior to trial, but this does not constitute a violation of the 

discovery provisions unless the prosecution knew of the incident 30 days before trial, or 

did not otherwise immediately disclose it. The record before us contains only the 

prosecuting attorney‟s explanation, indicating that the El Cerrito incident was uncovered 

on December 2 and disclosed on December 3. Nothing in the explanation provided to the 

court indicates a willful withholding of information, or even negligence in performing a 

prosecutorial duty that led to the late uncovering of the incident. The record provides no 
23

reason why we should not accept the prosecuting attorney‟s explanation, which would 

place any “blame” here on the state of the database from which rap sheets are queried, 

resulting in different reports on the same individual based on differences in the query 

parameters supplied as input. We have no reason to conclude that a discovery violation 

occurred.

Whether or not the prosecution committed a discovery violation, the defense may 

have been prejudiced by the late disclosure of the El Cerrito incident. Defense counsel 

had already committed herself, in her opening statement, to a defense that would attack 

Tomada‟s character with testimony concerning his previous violent acts. Additionally, 

defense counsel had assured the jury that Bilbrey had no violence in his past. Defense 

counsel made a strategic choice in how she would conduct Bilbrey‟s defense without 

knowledge that it would open the door for the prosecution to introduce evidence 

concerning the El Cerrito incident. The trial judge fully appreciated the potential 

prejudice to Bilbrey‟s defense occasioned by this late disclosure.

In Gimbel v. Laramie (1960) 181 Cal.App.2d 77, the court improperly received 

evidence out of court by seeking the comment of a friend, who was an amateur 

photographer, about a photograph that had been introduced into evidence. (Id. at p. 85.) 

Because of this, the plaintiff‟s attorney could have successfully demanded a mistrial. 

(Ibid.) Instead, the plaintiff‟s attorney requested permission to reopen his case and offer 

contradictory evidence. (Ibid.) The appellate court held: “By electing to reopen his 

case, rather than move for a mistrial, appellant waived his right to a new trial or to a 

reversal of the judgment on that ground. Counsel may not elect to introduce additional 

evidence to counteract evidence wrongly received by the court, speculating upon a 

favorable judgment, and at the same time reserve his objection in the event the judgment 

should be adverse to him.” (Id. at pp. 85-86.)

We conclude that, similarly to Gimbel, Bilbrey has waived his right to object to 

any prejudice occasioned by the late disclosure of the El Cerrito incident. The trial court 

offered defense counsel a remedy—declaring a mistrial. Defense counsel, however, after 

assurances about the scope of evidence concerning Bilbrey‟s prior acts that would be 
24

offered by the prosecution, elected to proceed with the trial. When faced with further 

consequences of that decision—lack of time to prepare for the cross-examination of 

Ainsworth—defense counsel did not renew the request for a mistrial, as she might have 

done, after her request for a continuance was denied, but again elected to proceed. 

Because defense counsel was aware, at all points, of the potential prejudice and could 

have remedied that prejudice by accepting a mistrial, Bilbrey cannot, on appeal, seek 

reversal when these strategic decisions did not result in the outcome he desired.

C. Inadequate Assistance of Counsel

Bilbrey argues that he was denied his right to adequate assistance of counsel 

because defense counsel withdrew her request for a mistrial on December 8, 2009, and 

because, the next day, she failed to renew her request for a mistrial after her request for a 

continuance was denied. 

“A convicted defendant‟s claim that counsel‟s assistance was so defective as to 

require reversal of a conviction . . . has two components. First, the defendant must show 

that counsel‟s performance was deficient. This requires showing that counsel made 

errors so serious that counsel was not functioning as the „counsel‟ guaranteed the 

defendant by the Sixth Amendment. Second, the defendant must show that the deficient 

performance prejudiced the defense. This requires showing that counsel‟s errors were so 

serious as to deprive the defendant a fair trial, a trial whose result is reliable.” (Strickland 

v. Washington (1984) 466 U.S. 668, 687.) 

“When a claim of ineffective assistance is made on direct appeal, and the record 

does not show the reason for counsel‟s challenged actions or omissions, the conviction 

must be affirmed unless there could be no satisfactory explanation. [Citation.] Even 

where deficient performance appears, the conviction must be upheld unless the defendant 

demonstrates prejudice, i.e., 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.‟ ” ‟ [Citations.]” (People v. 

Anderson (2001) 25 Cal.4th 543, 569.) “If „counsel‟s omissions resulted from an 
25

informed tactical choice within the range of reasonable competence, the conviction must 

be affirmed.‟ ” (People v. Diaz (1992) 3 Cal.4th 495, 557.)

Because the record does not reveal defense counsel‟s reasons for withdrawing the 

request for a mistrial and not renewing the request the next day, we must affirm Bilbrey‟s 

conviction unless there could be no satisfactory explanation. We conclude that there 

could be a satisfactory explanation.

On the morning of December 8, when the issue of a mistrial arose, all of the 

prosecution‟s percipient witnesses had already testified to their versions of the events. 

Tomada was still on the stand, but his direct examination had concluded. Defense 

counsel was fully aware at this point of the prosecution‟s case and would have realized 

that Bilbrey‟s testimony would be contrary to at least parts of the testimony of all these 

percipient witnesses, including witnesses such as cab driver Alameda and Officer 

Simonson who would have no reason to prevaricate if Bilbrey‟s account were true. 

Defense counsel may well have calculated that if a mistrial were granted and the trial 

began anew, she would still need to establish Tomada‟s propensity for violent acts in 

order to mount a defense that had any hope of success. In that case, evidence of the El 

Cerrito incident would still come in and the defense would be in the same position. We 

are unable to conclude that no satisfactory explanation could account for defense 

counsel‟s withdrawal of the request for a mistrial.

The next day, defense counsel did not renew her request for a mistrial when the 

judge denied her request for a continuance to investigate and prepare for the crossexamination of Ainsworth. However, the request for the mistrial was based on the 

prejudice to the defense of having decided on a defense strategy—showing Tomada‟s 

propensity for violence—without having full information about incidents the prosecution 

might use in rebuttal. If defense counsel had determined that she would, even after a 

mistrial were declared, mount the same defense, then there was no actual prejudice and 

no valid ground for requesting a mistrial at that point. We are unable to conclude that no 

satisfactory explanation could account for defense counsel‟s failure to renew the request 

for a mistrial.
26

V. Cumulative Error

Bilbrey alleges two additional errors, the individual effects of which would not 

require reversal, but which in combination create reversible error. We conclude that 

Bilbrey fails to show that the first alleged error was actual error and that he has waived 

the second alleged error on appeal.

A. Evidence Regarding Tomada’s Ability to Care for His Son

While questioning Tomada, the prosecutor followed a line of questioning that 

elicited the information that the damage to Tomada‟s eyes was such as to limit his ability 

to care for his diabetic son, who also had an allergy to wheat gluten, because he did not 

see well enough to read the glucose monitor or read the ingredient labels on food. Twice 

during the line of questioning, the court overruled defense counsel‟s objection that the 

testimony was not relevant. Bilbrey contends that “this dramatic and compelling” 

testimony was “highly irrelevant and prejudicial” and that it was error for the court to 

admit it. 

In order to prove its case for aggravated mayhem, the prosecution had to show that 

Tomada suffered a permanent disability or disfigurement. (§ 205.) Demonstrating how 

injury to Tomada‟s eyes had affected his life was relevant because it showed how 

Tomada was disabled by his injuries. Thus, the court was justified in overruling 

objections that the testimony was not relevant and there was no error.

B. Prosecutorial Misconduct

During closing argument, the prosecutor said: “why isn‟t [Becchio] here to tell his 

side of the story? Maybe he doesn‟t want to commit perjury.” Defense counsel objected 

that this constituted improper argument. The court sustained the objection, but defense 

counsel did not request, nor did the court provide, an admonition to the jury. Bilbrey 

asserts that the prosecutor‟s suggestion that Becchio didn‟t want to commit perjury was 

“prosecutorial misconduct that further injected unfairness into [his] trial.” 

“To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant 

must make a timely objection, make known the basis of his objection, and ask the trial 

court to admonish the jury. [Citation.] . . . [Citation.] Failure to make a specific and 
27

timely objection and request that the jury be admonished forfeits the issue for appeal 

unless such an objection would have been futile.” (People v. Brown (2003) 31 Cal.4th 

518, 553.) Here, defense counsel made an objection but failed to request that the court 

admonish the jury. Such a failure might be overlooked on appeal if a request for 

admonishment would have been futile, but Bilbrey does not make this argument—nor 

does the record support such an argument.

In any case, Bilbrey acknowledges that even if we agreed that prosecutorial 

misconduct occurred, the prejudice was not so great, in itself, as to require reversal. He 

raises the issue of prosecutorial misconduct for us to consider along with other alleged

errors, arguing that their cumulative effect rendered his trial so unfair as to require 

reversal. Having found no other errors, we would be unable to reverse the result based on 

this issue alone.

VI. Cruel and Unusual Punishment

Bilbrey challenges the sentence of life in prison, with the possibility of parole, for 

his conviction of committing aggravated mayhem. He contends that this sentence 

constitutes cruel and unusual punishment under both the state and federal Constitutions. 

Because Bilbrey did not raise this issue below, it is waived on appeal. (People v. Norman

(2003) 109 Cal.App.4th 221, 229; People v. Kelley (1997) 52 Cal.App.4th 568, 583.)

DISPOSITION

We affirm the judgment of the trial court.

Lambden, J.

We concur:

Haerle, Acting P.J.

Richman, J.