Filed 3/19/14 P. v. Aspinwall CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. DEAN FRANCES ASPINWALL, Defendant and Appellant. H039158 (Santa Clara County Super. Ct. No. C1239867)

S TATEMENT OF THE C ASE A jury convicted defendant Dean Franci s Aspinwall of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and h it and run driving caus ing property damage (Veh. Code, § 20002, subd. (a)). The trial c ourt sentenced defendant to four years in prison. Defendant now appeals from the judgment of conviction. He makes the following arguments on appeal: 1) the trial court erred in admitti ng his prior convictions for impeachment purposes, and, in the alternative, defense couns el was ineffective in failing to adequately object to the ad mission of the prior convictions ; 2) the trial court erred in admitting evidence regarding a restraini ng order, and defens e counsel rendered
ineffective assistance in faili ng to object to the evidence pursuant to Evidence Code section 352; 3) the trial court erred in refu sing to instruct the jury on necessity as a defense to the hit and run charge; and 4) cumulative error warrants reversal.2 As set forth below, we find no merit in defendant’s claims. We therefore will affirm the judgment of conviction.
S TATEMENT OF THE F ACTS The Prosecution’s Evidence On the evening of August 24, 2012, defend ant arrived at a parking lot located at
the corner of Stevens Creek B oulevard and Northlak e Drive in San Jose. The parking lot was frequented by homeless people who lived in vans and cars. Defendant, Dale Goldsmith, and Lahna Yosten were among the people who frequented the parking lot. When defendant arrived at the parkin g lot, defendant told Goldsmith that
defendant’s brother had obtained a restrain ing order against defendant. Defendant explained that his brother’s girlfriend had served him with the restraining order. Goldsmith testified that defendant was ag itated and “pretty pissed off” about the restraining order. Defendant told Goldsmith that “it was time for payback.” Defendant
retrieved a baseball bat from hi s van, and he walked away from the parking lot. He returned to the parkin g lot 45 minutes later, and he told Goldsmith that he had broken the windows of his brother’s girlfriend’s car. Goldsmith noticed that defendant’s hand was “cut up” and bleeding Goldsmith began to walk away from defendant, and defe ndant asked whether Goldsmith had seen Joseph. 1 Goldsmith testified that Joseph was connected to defendant’s brother. Goldsmith explained th at Joseph and defendant’s brother did work for each other, and that Joseph worked on ca rs for defendant’s brother. After asking Goldsmith about Joseph’s wh ereabouts, defendant drove his van across Stevens Creek Boulevard and parked the van.

1 Joseph was referred to only by his first name at trial. None of the witnesses provided Joseph’s last name.3 Later that evening, defendant walked back to the parking lot. Joseph arrived at the parking lot, and defendant asked Joseph, “W hat do you have going with my brother?” Defendant threw a punch at Joseph, and the two men began to fight. Goldsmith pulled defendant and Joseph apart. Joseph began to walk away, and defendant yelled racial slurs at Joseph. Joseph’s half-brother, Tupac, 2 punched defendant and said he did not like defendant’s choice of language. Three or four other men joined in and punched and
kicked defendant. Goldsmith broke up the fighting.
Defendant looked mad and determined , and he walked across Stevens Creek
Boulevard to his van. He took a bat from his van, and he walked back toward the parking
lot. Defendant hefted the ba t over his shoulder and moved it around. Individuals in the parking lot grabbed tire irons, iron bars, a nd fireplace pokers. Four or five of the individuals approached defendant. Defendant backed up and went back to his van.
Defendant sat in the van’s driver’s seat for a few minutes. He then “gunned” the engine and drove across Steven’s Creek Boulev ard toward the parking lot, driving over the center median. Tupac was st anding on the sidewalk adjace nt to the parking lot, and defendant drove up onto the sidewalk. Defendan t drove on the sidewalk at a speed of 25 to 30 miles per hour. He made a right-hand turn and accelerated into the parking lot. Yosten’s car was parked in the parking lot, and Yosten was standing next to her
car. Defendant turned his van towards the area where Yosten’s car was parked. He pointed his van in the direction of Yosten an d her car, and he “headed straight towards” Yosten at a speed of 35 to 40 miles per ho ur. Defendant’s van “s werve[d] at the last second,” and it struck Yosten’s car. The impact threw Yosten to the ground 15 feet away from her car. She was unconscious, and her humerus was fractured.

2 Like Joseph, none of the witnesses at trial provided Tupac’s last name.4 After defendant’s van struck Yosten’s car, defendant drove the van onto Stevens Creek Boulevard. He accelerated, and he drove up to Tupac’s parked van. While accelerating, defendant made a right-hand turn “directly into” the front of Tupac’s van.
Defendant’s van “knocked” the front end of Tupac’s van onto the sidewalk. Defendant accelerated again, and his van “ran into” a parked dump truck. The dump truc ked moved four to five feet, hitting the car parked in fr ont of it. Defendant backed his van into the parking lot, and the van got stuck underneath a tree. He tried to get out of the van, and six or seven people ran toward him. Defendant was able to open one of the van’s doors, and he ran away. The Defense Evidence Defendant was the only defense witness. He denied breaking the windows of his brother’s girlfriend’s car, he denied yelling raci al slurs, he denied hitting Yosten’s van, and he denied hitting the dump truck.
Defendant admitted throwi ng a punch at Joseph. He testified that he was thereafter attacked by Tupac an d other individuals in the park ing lot, but he was able to
break free and return to his van. After defe ndant escaped from the attack, he approached the parking lot with a bat beca use he wanted to “confront them all.” He was “upset” when people in the parking lot grabbed weapons , and he again returned to his van. He
testified that he drove across the center median because he “wanted th em to see [his] state of mind.” He admitted driving on the sidewalk , but only at a speed of three to five miles per hour. After driving on th e sidewalk, he drove through the parking lot without hitting Yosten’s car. He explained that when he dr ove through the parking lot “nobody . . . was around,” and everyone who had been in the parking lot had “dispersed.” After driving through the parking lot, defendant turned onto Stevens Creek Boulevard and revved his engine because he wanted to let everyone know that he was
still there. He was “mad” th at the men who had attacked him had left the area. He5 accelerated to a speed of 35 to 40 miles per hour, and he made a right-hand turn. He lost control of his van and hit Tupac’s van. Defendant stepped out of his van and “immediately started to fl ee the scene” because he was afraid that “[s]ix black gentlemen” would attack him. He also fled because he believed police would come to the

scene. Defendant testified that he spoke with police after the incident, and that the version of events he provide d to the police differed from his trial testimony. When defendant spoke to the police, he denied driving in the fashion that he had described at trial. He told the police that so meone must have taken his van.
Defendant testified that he had suffered prior criminal convictions. He admitted a 1992 conviction for misdemeanor “spousal violence,” a 1992 conviction for felony “spousal battery,” and a 2003 conviction for misdemeanor “brandishing a weapon.”
D ISCUSSION I. Impeachment with Prior Convictions
Defendant contends that th e judgment must be revers ed because the trial court erroneously admitted his prior convictions fo r impeachment purposes. Specifically, he argues, “The trial court erred in allowing in these prior convictions since, as a matter of law, none of these constitute crimes involving moral turpitude.” In the alternative, he
asserts that his trial counsel rendered ineffec tive assistance in failing to object to the admission of the prior convictions on the ground of lack of moral turpitude. We find no
merit in defendant’s claims.

A. Background The prosecutor moved to impeach de fendant with his misdemeanor domestic violence conviction (Pen. Code, § 273.5, s ubd. (a)), his felony domestic violence6 conviction (Pen. Code, § 273. 5, subd. (a)), and his misdem eanor brandishing conviction (Pen. Code, §417, subd. (a)(1)). Defense co unsel conceded that all of the prior
convictions involved “moral tu rpitude under the law.” Defe nse counsel objected to the admission of the prior convictions, however, on th e ground that they were remote in time and impermissibly tended to show a propensity for violence. The trial court ruled that the
convictions were admissible to impeach defendant’s testimony.
B. Defendant Has Not Established Trial Court Error “A general objection to the admission or ex clusion of evidence, or one based on a different ground from that advanced at trial, does not preserve the claim for appeal.” ( People v. Marks (2003) 31 Cal.4th 197, 228 ( Marks ).) Thus, because defense counsel never argued that the prior co nvictions lacked moral turpitude , defendant’s claim that the trial court erred in failing to ex clude the convictions due to thei r lack of moral turpitude is not cognizable on appeal. Indeed, given that defense counsel conceded that the
convictions involved mo ral turpitude, we cannot now concl ude that the trial court erred in failing to deem the convictions lacking in moral turpitude. (See People v. Partida (2005) 37 Cal.4th 428, 435 [a defenda nt “cannot argue the court erre d in failing to conduct an analysis it was not asked to conduct”].) Defe ndant therefore has not established that the trial court erred in failing to exclude the pr ior convictions due to the absence of moral turpitude. (See Marks, supra, 31 Cal.4th at pp. 228-229 [whe re defense counsel objected to the admission of a prior conviction for impe achment purposes, but did not assert that
the conviction lacked mo ral turpitude, the defendant’s clai m that the prior conviction was inadmissible due to lack of moral turp itude was not cognizable on appeal].)

C. Defense Counsel Did Not Rend er Ineffective Assistance The defendant bears the burden of provin g ineffective assistance of counsel. ( People v. Carter (2003) 30 Cal.4th 1166, 1211 ( Carter ).) To obtain reversal due to7 ineffective assistance, a defe ndant must first show “that defense counsel’s performance fell below an objective standard of reasonabl eness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney.” ( People v. Cunningham (2001) 25 Cal.4th 926, 1003 ( Cunningham ); Strickland v. Washington (1984) 466 U.S. 668, 688 ( Strickland ).) Second, the defendant mu st show that there is “a reasonable probability that defe ndant would have obtained a more favorable result absent counsel’s shortcomings.” ( Cunningham, supra, 25 Cal.4th at p. 1003.) “A reviewing court will indulge in a pr esumption that counsel’s performance fell within the wide range of professional co mpetence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” ( Carter, supra, 30 Cal.4th 1166, 1211; see also People v. Witcraft (2011) 201 Cal.App.4th 659, 664.) Where the record on appeal “does not show the re ason for counsel’s challenged actions or omissions, the conviction must be affirm ed unless there could be no satisfactory explanation.” ( People v. Anderson (2001) 25 Cal.4th 543, 569.) “The object of an ineffec tiveness claim is not to grad e counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the gr ound of lack of sufficient prejudice, which we expect will often be so, that course shou ld be followed.” ( Strickland, supra, 466 U.S. at p. 697.) Here, defense counsel was not deficient in failing to argue that defendant’s
domestic violence convictions were inadmissib le due to their lack of moral turpitude. There was a satisfactory explanation for his failu re to make such an objection. Domestic violence convictions pursuant to Penal Code section 273.5 necessarily involve moral turpitude and are thus admissibl e for impeachment purposes. ( People v. Rodriguez (1992) 5 Cal.App.4th 1398, 1402; see also Donley v. Davi (2009) 180 Cal.App.4th 447, 461 [a misdem eanor violation of Penal Code section 273.5 “is a crime of moral turpitude as a matter of law”]; 3 Witkin, Cal. Evidence (5th ed. 2012)8 Presentation at Trial § 318, p. 447 [a Pena l Code section 273.5 conviction involves moral turpitude].) Defense counsel therefore was not deficient in failing to seek exclusion of
defendant’s Penal Code section 273.5 domestic violence convictions on the ground that they lacked moral turpitude. 3 (See People v. Bradley (2012) 208 Ca l.App.4th 64, 90 [“Failure to raise a meritless objection is not ineffective assistance of counsel.”].)
Nor did defense counsel render ineffectiv e assistance in failing to argue that defendant’s brandishing conviction was inadmiss ible due to a lack of moral turpitude. Defendant has failed to show that he was pr ejudiced by the admission of that conviction. Defendant’s credibility was si gnificantly damaged, notwithst anding the admission of his brandishing conviction. Defenda nt admitted that the version of events he provided to police was completely different from the version of events he described at trial. There were many inconsistencies in defendant’s testimony, 4 and the trial court found that defendant’s testimony was “not . . . credible in almost every respect.” Additionally, as

3 In support of his claim that defense co unsel should have ma de a moral turpitude objection to the domestic violence convicti ons, defendant cites a Ninth Circuit case, Morales-Garcia v. Holder (9th Cir. 2009) 567 F.3d 1058 ( Morales-Garcia ). MoralesGarcia held that a Penal Code section 273.5 conv iction is not a crime of moral turpitude for federal immigration purposes. ( Id. at p. 1060.) Defendant’s reliance on MoralesGarcia is unavailing. The decisions of interm ediate federal appellate courts “are not binding on state courts.” ( In re Roderick (2007) 154 Cal.App.4t h 242, 307.) Thus, Morales-Garcia in no way requires us to concl ude that defense counsel rendered ineffective assistance in faili ng to make a moral turpitude objection to the admission of defendant’s domestic violence convictions.

4 We note some of the inconsistencie s in defendant’s testimony. Defendant repeatedly testified that no one was at the scene when he struck Tupac’s van, yet he explained that he fled after striking the van because he feared individuals at the scene would attack him. He repeatedly testified that he was “calm” during the incident, but he also described his mood as “agita ted” and “mad.” He insisted that he drove safely during the entire incident, but he adm itted that it was not safe to drive on the sidewalk. He denied striking Yosten’s car, but he was una ble to explain the cause of the extensive damage to her car.9 noted above, defendant’s domestic violence convictions involved moral turpitude and were admissible to impeach the credibility of his test imony. Thus, even if the brandishing conviction had not been admitted, defendant’s credibility still would have been extremely impaired. Defendant therefor e has failed to show the requisite reasonable probability of a more favorable result absent counsel’s shortc omings. We therefore must
conclude that counsel did not render ineffective assist ance in failing to make a moral turpitude objection to the brandish ing conviction. (See generally Cunningham, supra, 25 Cal.4th at p. 1003 [ineffective assistance of counsel is established only where there is “a reasonable probability that defe ndant would have obtained a more favorable result absent counsel’s shortcomings”].) II. Evidence Regarding the Restraining Order
Defendant contends that th e judgment must be revers ed because the trial court erroneously admitted evidence that his brothe r had obtained a restraining order against him. Specifically, he asserts that the trial c ourt erred in refusing to exclude the evidence as irrelevant. Defendant additionally conten ds that his trial counsel rendered ineffective assistance in failing to seek exclusion of the evidence pursuant to Evidence Code
section 352. We conclude that the trial c ourt did not err, and that trial counsel did not
render ineffective assistance.
A. Background Before trial, defense counsel moved to ex clude evidence that defendant had been served with a restraining order that preven ted him from contacting his brother. Defense counsel argued the restraining order was irrelevant because there was no “direct
nexus . . . between the restra ining order and this case.” After reviewing the preliminary hearing tr anscript, the trial court ruled that the restraining order evidence was relevant and ad missible. The court explained: “Well, it seems like in reviewing the prelim testimony of Mr. Goldsmith, that the defendant—the10 first thing that happened was that the defe ndant told Mr. Goldsmith something about the restraining order and that he wanted to talk to Joseph . . . . [T]h e defendant apparently saw [Joseph], came up to him, and asked Jo seph what he and his brother had going on and started swinging on him. And from then on it just continues.” The court noted that defendant’s act of punching Joseph instigated a continuous, widespread altercation that
culminated with defend ant driving into Yosten’s car and other parked vehicles. The court concluded, “So it seems like all of that was one continuous action. And I don’t think it would make any sense not to allow the jury to hear what precipitated . . . the charged conduct because otherwise it’s just not going to make any sense.”
B. The Trial Court Did Not Abuse its Discretion
“ As a general rule, all relevant evidence is admissible.” ( People v. Mendoza (1998) 18 Cal.4th 1114, 1136.) “Evidence is relevant if it has any tendency in reason to prove or disprove a material issue.” ( Ibid. ) “The test of relevance is whether the evidence tends ‘ “logically, na turally, and by reasonable infere nce” to establish material facts such as identity, in tent, or motive.’ ” ( People v. Scheid (1997) 16 Cal.4th 1, 13.)
“The trial court is vested with wide discretion in determining the relevance of evidence.” ( People v. Babbitt (1988) 45 Cal.3d 660, 681.) “The [trial] court, however, has no discretion to admit irrelevant evidence.” ( Ibid. ) An appellate court reviews a trial court’s ruling on the relevance of ev idence for abuse of discretion. ( Id. at pp. 682-683.) Here, contrary to defendant ’s assertion, the trial cour t did not abuse its discretion in refusing to exclude the rest raining order evidence as irre levant. The restraining order
was relevant because it constituted the motive for defendant’s initial confrontation with Joseph: defendant confronted Joseph, who a ssociated with defendant’s brother, because defendant was angry about the restraining or der. Defendant’s act of confronting Joseph instigated an altercation betw een defendant and the people in the parking lot, and that widespread altercation concluded with defend ant driving his van into Yosten’s car and11 the other parked vehicles. Th e evidence regarding the restra ining order was thus relevant to show why defendant initiated a course of conduct that culm inated in his commission of the charged crimes. As the trial court noted, the charged conduct was “not going to make any sense” unless the jury heard evidence re garding defendant’s motive for engaging in the initial confrontation with Joseph. We ther efore conclude that th e trial court did not abuse its discretion in refusing to exclude the restraining order evidence as irrelevant. (See generally People v. Bivert (2011) 52 Cal.4th 96, 116-117 [evidence is relevant and thus admissible if it tends to establish motive].)
C. Defense Counsel Did Not Rend er Ineffective Assistance
Defendant contends that defense counsel rendered ineffective assistance in failing to seek exclusion of the restraining or der evidence pursuant to Evidence Code
section 352. 5 Defendant additionally asserts that defense counsel rendered ineffective assistance in failing to make an Evidence Code section 352 obje ction to the evidence that defendant broke his brother’s girlfriend’s car windows.
Defendant’s ineffective assistance claim fails because he has not shown that he was prejudiced by defense counsel’s failure to make an Evidence Code section 352 objection. (See Strickland, supra, 466 U.S. at p. 697 [an ine ffective assistance claim fails if the defendant does not establish prejudice ].) Defendant theorizes that the evidence regarding the restraining orde r and the broken car windows destroyed the credibility of his testimony, and that he would have achi eved a more favorable verdict if defense
counsel had made a successful Evidence Code section 352 objection. Defendant’s theory is unconvincing. Defendant’s credibility was significantly da maged, regardless of the evidence concerning the restrain ing order and the broken window s. As discussed in part

5 Evidence Code section 352 states: “T he court in its discretion may exclude evidence if its probative value is substantia lly outweighed by the probability that its admission will (a) necessitate undue consumptio n of time or (b) create substantial danger of undue prejudice, of confusing the i ssues, or of misleading the jury.”12 I.C., ante , defendant admitted that the version of events he provided to police was completely different from the ve rsion of events he describe d at trial, there were many inconsistencies in defendant’s testimony, the trial court found that defendant’s testimony was not credible, and defendant’s domestic violence convictions impeached his testimony. Thus, even if defense counse l had succeeded in ex cluding the evidence regarding the restraining order and the broken windows, the jury would not have been apt to credit defendant’s testimony. Defendant th erefore has failed to establish the requisite reasonable probability of a more favorable result absent coun sel’s shortcomings, and we
must conclude that counsel did not render in effective assistance in failing to make an Evidence Code section 352 objection. (See generally Cunningham, supra, 25 Cal.4th at p. 1003 [to establish ineffec tive assistance, the defendant must show that there is “a reasonable probability that defe ndant would have obtained a more favorable result absent counsel’s shortcomings”].) III. Necessity Instruction
Defendant contends that hi s hit and run conviction must be reversed because the trial court refused to instruct pursuant to CALCRIM No. 3403, which articulates the defense of necessity. Specifically, he assert s that the trial court was required to give
CALCRIM No. 3403 as a defense to the hit a nd run charge because there was substantial evidence that he ran away from the scene “out of necessity in fear that the group in the parking lot was intending on attacking him.” We conclude that there was not substantial evidence to support a necessity in struction, and that the trial court therefore did not err in refusing to instruct pursuan t to CALCRIM No. 3403.
A. Background Defense counsel requested that the tria l court instruct pursuant to CALCRIM
No. 3403 as a defense to the hit and run ch arge. The court refused to give CALCRIM No. 3403. The court explained: “And so th ere are six elements that the defense has to13 prove, and one of them is that the defenda nt did not substantially contribute to the emergency. It seemed to me, based upon the ev idence that I heard, that that wasn’t going
to be able to be shown and the Court has to instruct on the de fense when there is substantial evidence supporting the defense. And, frankly, I just don’t think there was any substantial evidence supporting that defe nse, and that’s why I didn’t give it.”
B. The Trial Court Did Not Err
“A defendant is entitled to instruction on reques t on any defense for which substantial evidence exists.” ( People v. Miceli (2002) 104 Cal.App.4th 256, 267.) “However, the trial court need give a request ed instruction concerning a defense only if
there is substantial evidence to support the defense.” ( Ibid. ) “On review, we determine independently whether subs tantial evidence to support a defense existed.” ( People v.
Shelmire (2005) 130 Cal.App.4th 1044, 1054

. ) “ ‘The necessity defense is very lim ited and depends on the lack of a legal alternative to committing the crim e. It excuses criminal condu ct if it is justified by a need to avoid an imminent peril and there is no time to resort to the legal authorities or such resort would be futile.’ [Citation.]” ( People v. Verlinde (2002) 100 Cal.App.4th 1146, 1164.) The defense of necessity ca nnot be invoked “when it is the culpable
conduct of the actor that creates or contri butes to the atmosphere of necessity.” ( Id. at p. 1165.) “To justify an instruction on the defense of necessity , there must be evidence
sufficient to establish that defendant violated the law (1) to prevent a significant evil, (2) with no adequate alterna tive, (3) without creating a greater danger than the one avoided, (4) with a good faith belief in the necessity, (5) with such belief being objectively reasonable, and (6) under circumstances in whic h he did not substantially contribute to the emergency .” ( People v. Pepper (1996) 41 Cal.App.4th 1029, 1035, italics added.)14 CALCRIM No. 3403 articulates the defe nse of necessity. CALCRIM No. 3403 states, in pertinent part: “The defendant is not guilty of ______<insert crime[s]> if (he/she) acted because of lega l necessity. [¶] In order to establish this defense, the defendant must prove that: [¶] 1. (He/She) acted in an emer gency to prevent a significant bodily harm or evil to (himse lf/herself/ [or] someone else ); [¶] 2. (He/She) had no adequate legal alternative; [¶] 3. The defendant ’s acts did not create a greater danger than the one avoided; [¶] 4. When the defendant ac ted, (he/she) actually believed that the act was necessary to prevent the threatened harm or evil; [¶] 5. A reasonabl e person would
also have believed that the act was necessa ry under the circumstances; [¶] AND [¶] 6. The defendant did not substantia lly contribute to the emergency .” (CALCRIM No. 3403, italics added.) Here, defendant theorizes that instruction pursuant to CALCRIM No. 3403 was required because the evidence sh owed that he ran from the sc ene after hitting the parked
vehicles due to fear that he would be immi nently attacked by an gry individuals in the parking lot. 6 We are not persuaded by defendant’s th eory and conclude that there was not substantial evidence to sup port CALCRIM No. 3403. Although defendant testified that he fear ed imminent attack after he hit Tupac’s van, the evidence failed to show that defendan t did not substantially contribute to that emergency. Rather, both the prosecution’s ev idence and the defense evidence established that defendant substantially contributed to th e emergency situation that prompted him to flee the scene. The prosecu tion’s evidence showed that defendant attacked Joseph,

6 Defendant was convicted of hit and r un driving in violati on of Vehicle Code section 20002, subdivision (a). Vehicle Code section 20002, subdivision (a) states, in pertinent part: “The driver of any vehicl e involved in an accident resulting only in damage to any property, including vehicles, shall immediately stop the vehicle at the nearest location that will not impede traffic or otherwise jeopardize the safety of other motorists.” Defendant contends that an in struction on the defense of necessity would have excused his failure to stop after the collision with the pa rked vehicles.15 approached the individuals in the parking lo t while wielding a bat, quickly drove his van on the sidewalk on which Tupac was standing, pointed his van at Yosten and accelerated “straight towards” her, and drove his van “d irectly into” Tupac’s parked van. The
defense evidence showed that defendant threw the first punc h at Joseph, approached the individuals in the parking lot with a bat in order to “confr ont them all,” drove his van
across the center median to show the individua ls in the parking lot his “state of mind,” revved his engine to show everyone that he was “mad,” and recklessly made a turn at a high rate of speed before losing control of his van and hitting Tupa c’s van. Thus, under both the prosecution’s evidence and the defense evidence, defendant engaged in confrontational conduct likely to incite anger and a forcible response from the individuals in the parking lot. The ev idence therefore established that defendant created the emergency situation that prompt ed him to flee. We accordingly conclude that there was
no substantial evidence that defendant did not substantially contribute to the emergency,
and that the trial court did not err in re fusing to give CAL CRIM No. 3403. (See generally Verlinde, supra, 100 Cal.App.4th at p. 1165 [a necessity instruction was not required where the evidence established that the defendant created the emergency].)

IV. Cumulative Error
Defendant contends that cumulative erro r warrants reversal. In assessing a claim of cumulative error, the critical question is “w hether defendant rece ived due process and a fair trial.” ( People v. Kronemyer (1987) 189 Cal.App.3d 3 14, 349.) As discussed above, defendant has failed to show any errors in the trial court proceedings. As there were no errors that could have impacted his due process and fair trial rights, there was no
cumulative error in this case.16 D ISPOSITION

The judgment is affirmed.

__________ _______________ _____________ RUSHING, P.J.

WE CONCUR:

___________________ _________________ PREMO, J.

___________________ _________________ MÁRQUEZ, J.