Filed 4/28/22 P. v. Diaz CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ADRIAN DIAZ,

Defendant and Appellant.

D078614

(Super. Ct. No. SCD283828)

APPEAL from a judgment of the Superior Court of San Diego County, 

David M. Rubin, Judge. Affirmed as modified.

Denise M. Rudasill, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Melissa A. Mandel, Assistant Attorney General, Joseph C. 

Anagnos, Deputy Attorney General for Plaintiff and Respondent. 
2

An information charged defendant Adrian Diaz with robbery (Pen. 

Code, § 211—count 1)1 and assault with a deadly weapon (a knife) (§ 245, 

subd. (a)(1)—count 2). The information alleged Diaz, in committing these 

offenses, personally used a deadly and dangerous weapon (§ 1192.7, subd. 

(c)(23)); and personally inflicted great bodily injury on the victim, not an 

accomplice (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)).

The jury found Diaz not guilty on count 1 and guilty on count 2, and 

found true the two enhancements. Diaz admitted the truth of the allegation 

that he previously had been convicted of making a criminal threat (§ 422), 

which was both a strike prior (§§ 667, subds. (b)-(i), 668, 1170.12) and a 

serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)(38)). The trial 

court sentenced Diaz to nine years in prison: the middle term of three years 

on count 2, doubled to six years due to the strike prior; and an additional 

three years to run consecutive on the great bodily injury enhancement.

On appeal, Diaz contends: (1) the trial court erred in giving the 

“mutual combat” self-defense instruction because there was no substantial 

evidence of mutuality; (2) the prosecutor erred in her remarks during closing 

argument; (3) the errors were cumulative and prevented him from receiving a 

fair trial; and (4) the $154 criminal justice administration fee should be 

vacated as a result of the recent passage of Assembly Bill No. 1869 (former 

Gov. Code, § 29550 et seq.). 

As we explain, we agree as of July 1, 2021, any unpaid balance of the 

criminal justice administration fee should be vacated and, as the People point 

out in their brief, certain corrections should be made to the abstract of 

judgment. In all other respects the judgment is affirmed.

1 All further statutory references are to the Penal Code unless otherwise 

indicated. 
3

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Evidence

Victim James M. testified he rode an electric scooter he owned to a 

Mexican restaurant at about 10:00 p.m. on October 24, 2019. The scooter was 

similar to those that are seen in the “streets of San Diego” that riders can use 

through a ride-sharing “App.” When he arrived at the restaurant, James saw 

three men outside “conversing.” One of the men was sitting on the ground, 

whom James identified at trial as Diaz. James observed two bicycles and two 

backpacks near the men. James assumed the men were “homeless,” as he 

was familiar with the area and knew it was popular with transients. James 

had never seen any of the men before that night.

James took his scooter inside the restaurant. After ordering food, the 

cashier directed him to take the scooter outside. James complied, parking 

the scooter right outside the entrance of the restaurant. James next used the 

bathroom inside the restaurant. Immediately thereafter, he checked on his 

scooter and saw one of the three men at the edge of the parking lot running 

with the scooter “into the darkness.” James yelled at the man, “That’s my 

scooter,” but the man kept going.

James saw the man who had been sitting on the ground (i.e., Diaz) 

quickly jump up and get into James’s “personal space,” coming within about 

six inches of him. With a “smirk,” Diaz told James, “ ‘It’s not your scooter,’ ”

and blocked James’s path as James contemplated chasing after the man. 

James repeated it was his scooter and stated he was going to call the police. 

“Shaken” and “upset” by the events, James picked up one of the bicycles on 

the ground and said, “ ‘I am going to hold onto this until the police get here,’ ”

as he believed all three men were involved in the theft.
4

Diaz yelled a name and the other man, whom James had seen when he 

first came to the restaurant, came out of the restaurant “irate” and stood 

about two feet away from James. At the direction of the men, James let go of 

the bicycle and put his “hands up.” James then heard the other man say, 

“ ‘Now you’re going to get it’ ” as Diaz and the other man “came at [James].”

James told the jury, “[B]efore I could blink,” Diaz “pulled out a knife 

from his pocket and cut my arm, stabbed my arm.” Other than saying he was 

going to call the police, James testified he had not threatened any of the three 

men, had not “balled up” his fists as if he wanted to fight, and had no 

weapon. James described the knife as having about a six-inch blade. James 

was stabbed in his left bicep, which injury required 17 stiches to close and 

which left a scar. 

After being stabbed by Diaz, James went to the entrance of the 

restaurant and yelled, “ ‘Please call 911.’ ” James then told the two 

remaining men, “ ‘You guys aren’t leaving. I am calling the police.’ ” James 

picked up Diaz’s backpack and threw it across the parking lot. The other 

man in response yelled, “ ‘Now you’re really going to get it.’ ” James saw both

men “square[ ] up” to him as if they were all in a “boxing ring,” and the men 

began punching James.

“[S]cared” and “fighting for [his] life,” James fought back, kicking and 

punching at the two men. The two men at some point stopped fighting and 

collected their belongings, as James heard sirens. Shortly thereafter, at the 

request of officers, James identified Diaz as the one who had stabbed him 

with the knife. 

On cross-examination, James denied he started the confrontation with 

Diaz and the other man. James also denied being “mad” that his scooter was 
5

taken, but instead stated he was just “upset.” James stated the only threat 

he made to the two men was that he was “going to call the police.” 

Also during cross-examination, the jury was shown a video of an 

interview with James immediately after the incident, recorded by the bodyworn camera of San Diego Police Officer Aaron Merris. A transcript of the 

video was included in the appellate record. The transcript corroborates much 

of James’s trial testimony. James told the officer that one of three men in 

front of the restaurant had stolen his scooter and James in response grabbed 

a bicycle belonging to one of the remaining men to “get an answer” about its 

whereabouts, which he admitted had been a mistake; that the other two men 

“thought it was big joke” and “wanted to fight over it”; and that James “was 

just trying to defend [himself].” James estimated the entire incident lasted 

about three or four minutes. Officer Merris treated James’s stab wound until 

paramedics arrived. 

April D. was the cashier at the restaurant and was the individual who 

called 911 to report the incident. The audio of her 911 call was played for the 

jury, and a transcript of the call was included in the appellate record. April 

informed the 911 operator that there was a fight outside the restaurant and 

it was “three against one”; that the three were “really hitting” the one and it 

was “bad” for that man; and that police needed to hurry. 

April told the jury she heard the men arguing about a scooter. She did 

not “see anyone getting physical” before the 911 call because she was behind 

the register. She saw the man with the scooter (whom she identified as 

James, after seeing him in court) “back up on the door” of the restaurant and 

“lift[ ] up his hands” so they were nearly level to his chin in an effort to 

“protect” himself.
6

April confirmed James had brought his scooter inside the restaurant 

and she had told him scooters were not allowed. James next asked to use the 

restroom. While in the restroom, the two men who had been outside came 

into the restaurant. One man (who April identified as Diaz) asked for a cup 

of water, and the other man ordered food. Diaz then went back outside. 

On cross-examination, April testified when James went outside and 

found his scooter missing, he came back inside and “nicely” and “in a good 

way” asked the man who had been with Diaz about its whereabouts. The 

man responded he did not know. James exited the restaurant, and April then 

heard him ask Diaz, “ ‘Where is my scooter?’ ” April next heard Diaz yell for 

the man waiting for food to come outside. The man in response “ran” out of 

the restaurant. 

Officer Yianni Hallios of the San Diego Police Department testified he 

and his partner Officer Merris responded to the October 24 incident. On 

arrival, Officer Hallios contacted James, who indicated he had been stabbed 

and pointed to two individuals fleeing the scene. Officer Hallios pursued 

them on foot and made contact with one of them, Diaz, whom the officer 

identified in court. 

Officer Hallios also interviewed April on the night of the incident and 

prepared a report that included a summary of her statement. April told 

Officer Hallios that prior to James’s arrival, she saw three transient males

outside “while closing the entry door.” April gave a description of two of those 

males, one of whom was Diaz. Shortly thereafter, James arrived on his 

scooter. She then heard a “verbal altercation” outside the restaurant and 

called 911 in response. Officer Hallios’s report noted April saw James “with 

both of his hands up” during the altercation as he “back[ed] away” from the 

other men.
7

Officer Merris testified he responded with his partner Officer Hallios to

the incident. Once the area was secured, Officer Merris walked along the dirt 

path Diaz had taken as he fled, looking for evidence including a possible 

weapon. Near a chain-link fence just off the path, Officer Merris found an 

“open folding knife” resting on ice plant. The knife matched the description 

James had given officers.

Officer Merris also took a statement from James at the scene of the 

incident. James told the officer that he rode his scooter to the restaurant and 

saw a “few homeless guys” near the front door. At the request of the cashier, 

James left his scooter outside. When he went back outside he saw one of the 

three men leaving with the scooter. As James went after the guy with the 

scooter the other two men, one of whom was Diaz, “block[ed] his way” and 

then “squared up . . . and kept pushing him back into the corner of the 

restaurant by the front door.” James believed the two men wanted to fight 

and he responded by grabbing a bicycle belonging to one of them. James told 

the officer that Diaz then “pulled out a knife that was about 7 to 8 inches 

long,” which appeared to have “no handle” and be “one color,” and “slashed” 

his “upper left arm.” James kept telling the two men to leave him alone as 

the police were on the way, but “neither of them would go away.” 

Defense Evidence

Diaz testified in his own defense. He stated he went to the Mexican 

restaurant with an “acquaintance” named “Vince” at around 10:00 p.m. on 

the night of the incident. Diaz sat on the ground near their bicycles and 

backpacks. At some point a man Vince knew rode up on his skateboard 

asking Vince for money and a cigarette. Diaz did not know the man, and was 

suspicious he might try and take some of their belongings. 
8

A short while later, Diaz saw the same man leaving the restaurant on a 

scooter while also carrying his skateboard. Diaz started laughing when the 

man almost fell “face forward” because he was trying to balance his 

skateboard on the handlebars of the scooter. Up until then Diaz had not seen 

the scooter. As the skateboarder was riding away, Diaz saw a man come out 

of the restaurant, whom he identified at trial as James. They made eye 

contact, and Diaz realized the scooter belonged to James. Diaz told James, 

“ ‘You still have a chance to go get your scooter’ ” and “ ‘That’s the world[’s]

dumbest criminal[ ], man. That was the stupidest getaway, man. Go get 

your scooter.” James, however, seemed “stuck” on Diaz. 

James responded, “ ‘Oh, you think it’s funny’ ” and then became 

“confrontational” with Diaz. Diaz remained seated as James went back 

inside the restaurant for about 30 seconds, then came running outside and 

made a “dash” for Vince’s bicycle. James got on the bicycle and attempted to 

ride off with it. Diaz jumped in front of the bicycle to prevent James from 

leaving. James leaned over the handlebars and got “physical” with Diaz. 

Diaz tried to push James off the bicycle, while also yelling for Vince, who 

remained inside the restaurant. Diaz and James then “started exchanging 

blows.” Once outside, Vince helped Diaz get James off the bicycle, and then 

they “chase[d] [James] back into the door, into the door frame” of the 

restaurant. 

At that point Diaz and Vince tried to leave, as they had “retreat[ed]”

from the altercation. James, however, was still “in a fighting stance,” 

although he was no longer coming at them. As Vince gathered his belongings 

and got ready to leave on his bicycle, James “zoom[ed]” in on Diaz and they 

got “into a tug of war” over Diaz’s bicycle, which led to a new round of 

fighting between James and Diaz. As they were exchanging blows for a 
9

second time, Diaz told James he had nothing to do with the theft of James’s 

scooter, to leave him alone, and he did not want to fight anymore. James

responded, “he was going to kill” and “skin” Diaz. 

James next grabbed Diaz’s backpack and threw it across the parking 

lot, and pulled Diaz’s jacket over his head and used his fists and knees to 

pummel Diaz, including on the head. Because he believed he was losing the 

fight, Diaz pulled out a knife from his back pocket and slashed James one 

time, cutting him. 

Diaz told the jury he thought it was necessary to use the knife to 

prevent being seriously hurt by James. After being slashed, James backed off

as Diaz tried to leave on his bicycle. Diaz noticed the bicycle chain had fallen 

off. Hearing sirens, Diaz decided to “ditch” the bicycle and run. Diaz told the 

jury he ran because he did not think the police would believe his story, as he 

was homeless, and had a criminal record and “a knife in [his] hand.”

During cross-examination, Diaz was asked how many blows he and 

James exchanged the “first time” their confrontation became physical. Diaz 

responded one or two. He then was asked, “Is it mutual combat, are you 

fighting him [i.e., James] as well?” Diaz replied, “Oh, yeah,” then added, “I 

am mostly trying to push him off, trying to get him off the bike. But since he 

started swinging, I started swinging back.” Diaz and Vince then “push[ed]” 

and “chase[d]” James toward the inside of the restaurant, and James then 

put his hands up. Although James had his hands up, Diaz believed James 

still “want[ed] to fight” because he was “angry” about his scooter. James and 

Diaz then fought a second time, after James tried to take Diaz’s backpack 

and bicycle. It was then that Diaz slashed James on the arm.
10

DISCUSSION

I. Self-defense Instructions

Diaz contends the trial court erred when it instructed with CALCRIM 

No. 3471, “Right to Self-Defense: Mutual Combat or Initial Aggressor,”

because there was no substantial evidence of a mutual, preexisting 

agreement to fight between him and James before the occasion for selfdefense arose. Diaz further contends the error is reviewable on appeal,

despite defense counsel’s failure to object to the instruction, because it 

affected his substantial rights. 

The People agree there was no forfeiture, but argue there was 

substantial evidence of an implied agreement to fight before the claimed selfdefense occasion arose. The People in the alternative argue any error in 

giving CALCRIM No. 3471 was harmless.

A. Additional Background

The record shows after Diaz’s testimony and outside the jury’s 

presence, the court discussed what it referred to as the “package” of selfdefense instructions. The court stated it was inclined to give CALCRIM Nos. 

3470, 3471, 3472, and 3474. Neither defense counsel nor the prosecutor 

objected to any of these instructions. The court then asked trial counsel if 

any additional instructions were required on self-defense. Both answered 

“No.”

The court instructed the jury with CALCRIM No. 3471 in part as 

follows: 

“A person who engages in mutual combat or who starts a 

fight has a right to 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 
11

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.

[¶] . . . [¶]

“. . . 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.” 

In addition, the court instructed with CALCRIM Nos. 3470, “Right to 

Self-Defense or Defense of Another”;2 3472, “Right to Self-Defense: May Not 

2 The court gave CALCRIM No. 3470 as follows: “Self-defense is a 

defense to assault with a deadly weapon, as charged in Count 2, and the 

lesser included offense of assault. The defendant is not guilty of assault with 

a deadly weapon or assault if he used force against the other person in lawful 

self-defense. The defendant acted in lawful self-defense if: [¶] 1. The 

defendant reasonably believed that he was in imminent danger of suffering 

bodily injury or was in imminent danger of being touched unlawfully; [¶] 

2. The defendant reasonably believed that the immediate use of force was 

necessary to defend against that danger; [¶] AND [¶] 3. The defendant used 

no more force than was reasonably necessary to defend against that danger.

“Belief in future harm is not sufficient, no matter how great or how 

likely the harm is believed to be. The defendant must have believed there 

was imminent danger of bodily injury to him or an imminent danger that he 

would be touched unlawfully. Defendant’s belief must have been reasonable 

and he must have acted because of that belief. The defendant is only entitled 

to use that amount of force that a reasonable person would believe is 

necessary in the same situation. If the defendant used more force than was 

reasonable, the defendant did not act in lawful self-defense.

“When deciding whether the defendant’s beliefs were reasonable, 

consider all the circumstances as they were known to and appeared to the 

defendant and consider what a reasonable person in a similar situation with 

similar knowledge would have believed. If the defendant’s beliefs were 

reasonable, the danger does not need to have actually existed.
12

Be Contrived”;3 and 3474, “Danger No Longer Exists or Attacker Disabled.”4 

B. Guiding Principles

“It is error to give an instruction which, while correctly stating a 

principle of law, has no application to the facts of the case.” (People v. Guiton

(1993) 4 Cal.4th 1116, 1129 (Guiton).) Thus, “instructions not supported by 

substantial evidence should not be given.” (People v. Ross (2007) 155 

Cal.App.4th 1033, 1050 (Ross).) Evidence is “[s]ubstantial” for this purpose if 

it is “sufficient to ‘deserve consideration by the jury,’ that is, evidence that a 

reasonable jury could find persuasive.” (People v. Barton (1995) 12 Cal.4th 

186, 201, fn. 8 (Barton).) An instruction not supported by the evidence is 

subject to the harmless error analysis in People v. Watson (1956) 46 Cal.2d 

818 (Watson). (People v. Chism (2014) 58 Cal.4th 1266, 1299 (Chism).)

“ ‘[A]s used in this state’s law of self-defense, “mutual combat” means 

not merely a reciprocal exchange of blows but one pursuant to mutual 

intention, consent, or agreement preceding the initiation of hostilities. . . . In 

“The slightest touching can be unlawful if it is done in a rude or angry 

way. Making contact with another person, including through his or her 

clothing, is enough. The touching does not have to cause pain or injury of any 

kind. [¶] The People have the burden of proving beyond a reasonable doubt 

that the defendant did not act in lawful self-defense. If the People have not 

met this burden, you must find the defendant not guilty of assault with a 

deadly weapon, as charged in Count 2 and its lesser offense of assault.” 

3 The court instructed with CALCRIM No. 3472 as follows: “A person 

does not have the right to self-defense if he or she provokes a fight or quarrel 

with the intent to create an excuse to use force.” 

4 The court also gave CALCRIM No. 3474: “The right to use force in selfdefense continues only as long as the danger exists or reasonably appears to 

exist. When the attacker withdraws or no longer appears capable of inflicting 

any injury, then the right to use force ends.” 
13

other words, it is not merely the combat, but the preexisting intention to 

engage in it, that must be mutual.’ ” (People v. Nguyen (2015) 61 Cal.4th 

1015, 1044 (Nguyen), quoting Ross, supra, 155 Cal.App.4th at p. 1045.)

Diaz primarily relies on Ross. In that case, the defendant and a woman

“engaged in a hostile verbal exchange, at the culmination of which she 

slapped [the defendant, who] responded with a blow that fractured her 

cheekbone.” (Ross, supra, 155 Cal.App.4th at p. 1036.) The defendant was 

convicted of aggravated assault and battery after the trial court, over defense 

counsel’s objection, instructed the jury that a person charged with assault 

cannot successfully plead self-defense if he or she was engaged in “mutual 

combat” with the alleged victim. (Id. at p. 1042, fn. 8.) The trial court 

refused the deliberating jurors’ request for a legal definition of “mutual 

combat,” telling them there was no legal definition and instead to rely on the 

common, everyday meaning of these words.5 (Id. at p. 1043.) 

The Ross court held this was error. It found the phrase “mutual 

combat” was “too broad to convey the correct legal principle” (Ross, supra, 

155 Cal.App.4th at p. 1044); and the jury therefore was “left . . . free to 

suppose that any exchange of blows disqualifies both participants from 

claiming a right of self-defense. In fact the doctrine applies only to a violent 

confrontation conducted pursuant to prearrangement, mutual consent, or an 

express or implied agreement to fight” (id. at p. 1036). 

The Ross court explained: “The ‘combat’ element of [the mutual 

combat] rule is clear enough . . . . It suggests two (or more) persons fighting, 

whether by fencing with swords, having a go at fisticuffs, slashing at one 

5 When Ross was decided, former CALCRIM No. 3471 did not include a 

definition of “mutual combat,” unlike the current version given by the trial 

court in this case. 
14

another with switchblades, or facing off with six-guns on the dusty streets of 

fabled Dodge City. The trouble arises from ‘mutual.’ ” (Ross, supra, 155 

Cal.App.4th at p. 1043.) The Ross court concluded the phrase “ ‘mutual

combat’ is not only ambiguous but a misnomer. The mutuality triggering the 

doctrine inheres not in the combat but in the preexisting intent to engage in 

it.” (Id. at p. 1045.) It thus found that, for a mutual combat instruction, 

“there must be evidence from which the jury could reasonably find that both 

combatants actually consented or intended to fight before the claimed occasion 

for self-defense arose.” (Id. at p. 1047.)

The Ross court went on to find there was insufficient evidence to 

support the mutual combat instruction. (Ross, supra, 155 Cal.App.4th at 

p. 1050.) Instead, it concluded the evidence showed “an exchange of 

belligerent comments culminating in an impulsive and unexpected blow by 

[the woman] to which defendant responded with a combination, flurry, or 

barrage of blows” (id. at p. 1052); and therefore, no reasonable juror could 

conclude beyond a reasonable doubt that when the blows were exchanged, 

both parties had formed the intent to engage in a fight (ibid.). 

C. Analysis

1. Substantial Evidence Supports the Instruction

As noted, Diaz contends a mutual combat instruction was not 

supported by the facts of this case because there was no evidence of a prior 

mutual agreement to fight that occurred “before the claimed occasion for selfdefense arose.” (See Ross, supra, 155 Cal.App.4th at p. 1047.) Diaz instead 

contends James initiated the fight, as summarized ante. Of significance here, 

the agreement need not exist prior to the fight, but only before the claimed 

occasion for self-defense arose. (Ibid.; see CALCRIM No. 3471.) 
15

As summarized ante, Diaz claimed there were two confrontations 

between him and James. According to Diaz, the initial confrontation that led 

to an exchange of blows arose when James tried to ride off on Vince’s bicycle 

and Diaz stopped him by stepping in front of James, blocking his exit. 

Sometime thereafter, Vince joined Diaz outside and the two men managed to 

“push” or “chase” James into the doorway of the restaurant. If the evidence 

had been limited to this single confrontation, we would agree with Diaz that 

the facts were insufficient to support giving CALCRIM No. 3471, based on 

the lack of evidence of mutuality.

However, as noted ante, once James was backed into the restaurant’s 

doorway by Diaz and Vince, James put his hands up, as April also confirmed. 

Diaz and Vince then “retreat[ed],” and there was a clear break in the 

altercation. At this point, the occasion for Diaz to use self-defense had not 

yet arisen. According to Diaz, he and James then engaged in a second 

confrontation, exchanging blows as James next tried to take Diaz’s bicycle 

and/or backpack. James testified he tried to grab the men’s belongings 

because he believed they were also involved in the theft of his scooter and he 

did not want them to leave the area as the police were enroute. It was during 

this second altercation that Diaz pulled out the knife and slashed James, 

believing he needed to defend himself because he was “losing” the fight and, 

despite his plea to stop and leave him alone, James kept coming at him. 

From the foregoing, we conclude a reasonable jury could find the 

evidence of the second confrontation sufficiently “persuasive” (Barton, supra, 

12 Cal.4th at p. 201, fn. 8) of the existence of an implied “agreement” between 

Diaz and James to fight: James, “upset” about being “chased” into the 

doorway after his scooter had been stolen and his belief Diaz was involved; 

and Diaz, concerned James was going to take his bicycle and/or backpack, 
16

after James had already come at him. (See ibid.; CALCRIM No. 3471.) We 

thus find the instant case distinguishable from Ross, and conclude the trial 

court did not error in giving this instruction.6

2. Harmless Error

An error in giving an instruction that, while correctly stating the law, 

is inapplicable to the facts of a case is one of state law subject to the 

traditional Watson test, as we have noted. (See Chism, supra, 58 Cal.4th at 

p. 1299; Guiton, supra, 4 Cal.4th at p. 1129.) In determining whether the 

error was prejudicial, we examine the entire record, “including the facts and 

the instructions, the arguments of counsel, any communications from the jury 

during deliberations, and the entire verdict. [Citation.] Furthermore, 

instruction on an unsupported theory is prejudicial only if that theory became 

the sole basis of the verdict of guilt; if the jury based its verdict on the valid 

ground, or on both the valid and the invalid ground, there would be no 

prejudice, for there would be a valid basis for the verdict.” (Guiton, at 

p. 1130.) The “appellate court should affirm the judgment unless a review of 

the entire record affirmatively demonstrates a reasonable probability that 

the jury in fact found the defendant guilty solely on the unsupported theory.” 

(Ibid.)

6 We note the evidence appears to have supported a finding of selfdefense based on mutual combat if the jury had believed Diaz’s version of 

events, as Diaz testified he tried to stop fighting; he indicated by “word or

conduct” to James that he had stopped fighting when he told James he did 

not want to fight any more and to “leave him alone” as he had nothing to do 

with the theft of the scooter; and he gave James at least one chance, if not 

two chances, to stop fighting before he pulled out the knife and slashed 

James after being pummeled in the head.
17

Here, we conclude any purported error in giving CALCRIM No. 3471

was harmless under Watson. (See Chism, supra, 58 Cal.4th at p. 1299; 

Guiton, supra, 4 Cal.4th at p. 1129.)

First, other than the instruction itself, the only mention of “mutual 

combat” was during Diaz’s cross-examination (summarized ante), when Diaz 

confirmed he and James were fighting and engaged in “mutual combat”—as 

that term is commonly understood and not as defined by CALCRIM No. 

3471—when they were initially exchanging blows. However, the prosecutor

during closing argument did not rely on CALCRIM No. 3471 in arguing Diaz 

was not entitled to self-defense. 

Conversely, the record shows during the closing both the prosecutor 

and defense counsel focused exclusively on who started the fight and thus, 

whether the other responded in self-defense as instructed by CALCRIM No. 

3470.7 Trial counsel during closing also focused on whether Diaz “used no 

more force that was reasonably necessary to defend against the danger” when 

he slashed James with the knife during the second altercation. (See 

CALCRIM No. 3470.)

As summarized ante, the jury was presented with starkly different 

views of the evidence, based on the testimony of James and Diaz, and was 

asked to resolve these purely factual questions in determining whether 

James or Diaz acted in lawful self-defense. (See Guiton, supra, 4 Cal.4th at 

7 The trial court’s instruction with CALCRIM No. 3470 is yet another 

reason the instant case is distinguishable from Ross, where the jury was 

presented with an “all or nothing” choice of self-defense based solely on 

former CALCRIM No. 3471, despite evidence the defendant may have acted 

in lawful self-defense. (Ross, supra, 155 Cal.App.4th at p. 1054 [finding 

prejudicial error in giving this instruction because it “ ‘effectively removed 

[the defendant’s] defense of [self-defense] from the jury’s consideration’ ”].)
18

p. 1131 [jurors are “well equipped . . . to analyze evidence and to reach a 

rational conclusion” using their “ ‘own intelligence and expertise’ ”].)

Second, the court instructed with CALCRIM 200 that “[s]ome words or 

phrases used during this trial have legal meanings that are different from 

their meanings in everyday use”; that “[t]hese words and phrases will be 

specifically defined in these instructions”; and to “[p]lease be sure to listen 

carefully and follow the definitions that I give you.” (Italics added.) “Jurors 

are presumed able to understand and correlate instructions and are further 

presumed to have followed the court’s instructions.” (People v. Sanchez 

(2001) 26 Cal.4th 834, 852 (Sanchez); see People v. Scott (1988) 200 

Cal.App.3d 1090, 1095 [same].) 

Third, the jury was instructed that not all instructions may apply in a 

case: “Some of these instructions may not apply, depending on your findings 

about the facts of the case. Do not assume just because I give an instruction 

that I am suggesting anything about the facts. After you have decided what 

the facts are, follow the instructions that do apply to the facts as you find 

them.” (See CALCRIM No. 200.) Thus, if Diaz is correct and there allegedly 

was insufficient evidence of “mutual combat” to support instructing with 

CALCRIM No. 3471, the jury would have ignored it, as it was instructed to 

do. (See Sanchez, supra, 26 Cal.4th at p. 852; CALCRIM No. 200.) 

Indeed, nothing in the instructions prevented the jury from considering 

evidence of self-defense, which was the central issue in this case. The 

instructions given did not eliminate Diaz’s claim of self-defense. Rather, the 

jury rejected the defense based on the evidence which, as summarized ante, 

was more than sufficient to support a reasonable jury’s finding beyond a 

reasonable doubt that Diaz did not act in lawful self-defense when he slashed 

James with a knife after James had picked up one of the men’s bicycles and 
19

said he was calling the police. (See People v. Brown (2014) 59 Cal.4th 86, 

105-106 [substantial evidence is “evidence that is reasonable, credible and of 

solid value such that a reasonable trier of fact could find the defendant guilty 

beyond a reasonable doubt”]; People v. Earp (1999) 20 Cal.4th 826, 887 [on 

review, we view the evidence in a light most favorable to the prosecution to 

determine whether any rational trier of fact could have found the crime 

beyond a reasonable doubt]; id. at pp. 887-888 [that evidence might 

reasonably be reconciled with a contrary finding does not render the evidence 

insubstantial].) We thus reject this claim of error.

II. Prosecutorial Error

Diaz contends the prosecutor committed misconduct during closing by 

(1) misstating the law; (2) expressing a personal belief in his guilt; and 

(3) implying that his failure to disclose his reliance on self-defense prior to 

trial constituted grounds for disbelieving his testimony.8

A. Guiding Principles

“ ‘ “A prosecutor’s misconduct violates the Fourteenth Amendment to 

the United States Constitution when it ‘infects the trial with such unfairness 

as to make the conviction a denial of due process.’ [Citations.] In other 

8 Diaz did not object to any of the statements during the prosecutor’s 

presentation. (People v. Seumanu (2015) 61 Cal.4th 1293, 1328 [“making a 

timely and specific objection at trial, and requesting the jury be 

admonished . . . , is a necessary prerequisite to preserve a claim of 

prosecutorial misconduct for appeal” (italics added)].) We nonetheless reach 

the merits of this issue. As such, we deem it unnecessary to decide whether 

Diaz received ineffective assistance based on counsel’s failure to object and 

request an admonition. (Ibid. at p. 1328; see People v. Urbano (2005) 128 

Cal.App.4th 396, 404 [concluding a defendant’s claim of ineffective assistance 

of counsel is moot because the appellate court exercised its discretion to reach 

the merits of the defendant’s challenges to his sentence].)
20

words, the misconduct must be ‘of sufficient significance to result in the 

denial of the defendant’s right to a fair trial.’ [Citation.] A prosecutor’s 

misconduct that does not render a trial fundamentally unfair nevertheless 

violates California law if it involves ‘the use of deceptive or reprehensible 

methods to attempt to persuade either the court or the jury.’ ” ’ ” (People 

v. Covarrubias (2016) 1 Cal.5th 838, 894.)

“Error with respect to prosecutorial misconduct is evaluated under 

Chapman v. California (1967) 386 U.S. 18, to the extent federal 

constitutional rights are implicated, and People v. Watson (1956) 46 Cal.2d 

818 if only state law issues were involved.” (People v. Fernandez (2013) 

216 Cal.App.4th 540, 564.) “Misconduct that does not constitute a federal 

constitutional violation warrants reversal only if it is reasonably probable the 

trial outcome was affected.” (People v. Shazier (2014) 60 Cal.4th 109, 127

(Shazier); People v. Crew (2003) 31 Cal.4th 822, 839 [“A defendant’s 

conviction will not be reversed for prosecutorial misconduct . . . unless it is 

reasonably probable that a result more favorable to the defendant would have 

been reached without the misconduct.”].) Here, we conclude the Watson 

standard applies to the prosecutor’s remarks in this case. 

We review de novo a defendant’s claim of prosecutorial misconduct. 

(People v. Uribe (2011) 199 Cal.App.4th 836, 860 (Uribe).) “ ‘In conducting 

this inquiry, we “do not lightly infer” that the jury drew the most damaging 

rather than the least damaging meaning from the prosecutor’s statements.’ ” 

(People v. Brown (2003) 31 Cal.4th 518, 553-554.) We consider the 

prosecutor’s remarks in context of the entire record. (People v. San Nicolas 

(2004) 34 Cal.4th 614, 665-666 (San Nicolas).) 

As noted, in the absence of evidence to the contrary, we presume that 

the jury understands and follows instructions from the trial court (Sanchez, 
21

supra, 26 Cal.4th at p. 852); and that the jurors treat the court’s instructions 

as statements of law, and the arguments of counsel as words spoken by an 

advocate in an attempt to persuade (People v. Thornton (2007) 41 Cal.4th 

391, 441 (Thornton)).

B. Analysis

1. Misstatements of Law

Diaz contends the prosecutor misstated the law when she argued in 

closing the “age old idea” that “You don’t get to bring a knife to a fist fight,” 

and that “You don’t get to whip out a knife and stab someone if you guys are 

pushing and punching one another.” According to Diaz, the “obvious import” 

of these fleeting statements were that Diaz could not act in lawful selfdefense because he used a weapon to defend himself when James only used

his fists. 

When viewed in context of the entire record (see San Nicolas, supra, 

34 Cal.4th at pp. 665-666), we independently conclude it is not reasonably 

likely the jury construed these statements to mean Diaz as a matter of law

could not act in self-defense because he used a knife in the fight (see Shazier, 

supra, 60 Cal.4th at p. 127; Uribe, supra, 199 Cal.App.4th at p. 860). When 

the prosecutor made these statements, she was reviewing the elements of 

self-defense as provided in CALCRIM No. 3470, including the requirement 

that a defendant use no more force than reasonably necessary to defend 

against the danger. The prosecutor focused on the word “reasonable” in 

arguing Diaz used more force than “necessary”—an inherently factual 

question—when he slashed James during the altercation. (See CALCRIM 

No. 3470.) At no time, however, did the prosecutor argue that self-defense 

was legally unavailable to Diaz merely because of the knife. 
22

Moreover, we note both at the beginning of trial and immediately 

before closing argument, the trial court told the jury that it was required to 

follow the law as instructed by the court, even if jurors “disagree with it”; 

that any remarks or comments by the attorneys regarding the law that 

conflicted with the court’s instructions were to be ignored; and that the 

remarks of attorneys were not evidence. (See CALCRIM No. 222 [given by 

the trial court and providing in part: “Nothing that the attorneys say is 

evidence. In their opening statement and closing arguments, the attorneys 

discuss the case, but their remarks are not evidence.” (Italics added.)].)

In addition, at the beginning of her closing argument the prosecutor

discussed the jury’s role as fact-finder: “So what I’m going to do is to take the 

evidence that you heard and apply it to the law that the judge just read you. 

Because your job as jurors is [to] take the evidence as you find it, apply it in 

that equation to figure out if it has been proven beyond a reasonable doubt.” 

It was then the prosecutor again reminded the jury that it was to follow the 

law as instructed by the trial court: “This is my summary of the instructions 

that [the trial judge] gave you. If I say anything different here that is 

different from the instructions, follow the written law that you g[o]t.” (See 

Thornton, supra, 41 Cal.4th at p. 441; Sanchez, supra, 26 Cal.4th at p. 852.)

We therefore reject this claim of error as it is not reasonably likely the 

jury construed the prosecutor’s statements that bringing a knife to a fist-fight 

precluded the jury from considering Diaz’s claim he acted in lawful selfdefense. (See Shazier, supra, 60 Cal.4th at p. 127; San Nicolas, supra, 

34 Cal.4th at pp. 665-666.)

Diaz also contends the prosecutor misstated the law when arguing 

whose version of events the jury should believe: “So you’re left with, do I 

believe [James], do I believe [April], do I believe my own eyes when I see the 
23

cut, the ditched knife, the running away from police? Or do I believe Mr. 

Diaz? And it’s your job as jurors, and it’s pretty much your only job in this 

case that you’re going to work through, is who do I believe, which version of 

events is accurate? Do I have a reasonable doubt about this idea that Mr. 

Diaz shared with you today?” Diaz claims these statements left jurors with 

the impression that they should compare the prosecution’s and the defense’s 

case on an “equal basis,” and suggested he was required to prove his version 

of events beyond a reasonable doubt.

We independently conclude it is unlikely the jury inferred from these 

remarks that it was Diaz’s burden to prove beyond a reasonable doubt that 

he acted in lawful self-defense. We note the prosecutor made these 

statements while discussing how the jury might judge witness credibility, 

including under CALCRIM No. 226.9 

Moreover, the trial court repeatedly instructed the jury throughout the 

case that the prosecutor bore the burden to prove beyond a reasonable doubt 

the elements of the crimes, a burden the jury clearly understood when it 

found Diaz not guilty on count 1. The court also instructed with CALCRIM 

No. 3470, as we have noted, which explained the People had the burden to 

prove beyond a reasonable doubt that Diaz did not act in lawful self-defense. 

9 The jury was instructed under CALCRIM No. 226 to consider a myriad 

of “factors” in determining the “credibility or believability of the witnesses,” 

including: “What was the witness’s behavior while testifying?”; “Was the 

witness’s testimony influenced by a factor such as bias or prejudice, a 

personal relationship with someone involved in the case, or a personal 

interest in how the case is decided?”; “How well was the witness able to 

remember and describe what happened?”; “How reasonable is the testimony 

when you consider all the other evidence in the case?”; “Did other evidence 

prove or disprove any fact about which the witness testified?”; and “Has the 

witness been convicted of a felony?” 
24

And defense counsel at the very beginning of his closing argument 

reminded the jury that “in a criminal courthouse, all of the burden lies at this 

table right here,” referring to where the prosecutor was seated, and that the 

defense “doesn’t have to ask questions, doesn’t have to make argument, 

doesn’t have to put on evidence” because it is the People’s burden to prove 

guilt beyond a reasonable doubt. (See Shazier, supra, 60 Cal.4th at p. 127; 

Sanchez, supra, 26 Cal.4th at p. 852.) We thus find these remarks were not 

improper.

2. Belief in Diaz’s Guilt

Diaz next contends the prosecutor committed error by expressing a 

personal belief that Diaz was guilty, arguing as follows: “And as the judge 

pointed out in [CALCRIM No.] 226, there are some ideas as to how to 

evaluate witness credibility. How to determine whether Mr. Diaz was lying 

to you. Because I can stand here for the next ten minutes and say he is 

completely full of it. None of that is true. He is not telling you the truth. 

Disregard what he is saying. It’s completely made up. [¶] But what you 

need to do is work through that on your own.”

In rebuttal, the prosecutor argued the jurors’ role was “to look at the 

evidence,” and “to weigh and evaluate credibility.” She added, “And it doesn’t 

matter that I know beyond a reasonable doubt what happened. It’s that you 

do. That is why we give you the tools to come to that conclusion. Because 

that beyond a reasonable doubt standard applies to every single criminal 

case . . . throughout this country.” 

It is axiomatic that a “prosecutor may not express a personal opinion or 

belief in the guilt of the accused when there is a substantial danger that the 

jury will view the comments as based on information other than evidence 

adduced at trial.” (People v. Mincey (1992) 2 Cal.4th 408, 447.) The danger 
25

that the jury will view the prosecutor’s expressed belief in the defendant’s 

guilt as being based on outside sources “is acute when the prosecutor offers 

his [or her] opinion and does not explicitly state that it is based solely on 

inferences from the evidence at trial.” (People v. Bain (1971) 5 Cal.3d 839, 

848.) 

Nevertheless, not all such comments by a prosecutor are improper. We 

find guidance in the Supreme Court’s decision in People v. Huggins (2006) 

38 Cal.4th 175 (Huggins). In that case, the prosecutor during closing 

argument “asked the jury to believe him [i.e., the prosecutor] that defendant 

was a liar.” (Id. at p. 205.) Specifically, regarding the defendant’s version of 

events, the prosecutor argued, “ ‘None of this can be true. Please believe me. 

He has lied through his teeth in trying to sell this story to you.’ ” (Id. at 

p. 206, italics added.) 

In rejecting the claim of prosecutorial error, the Huggins court 

recognized the “general rule” that “improper vouching for the strength of the 

prosecution’s case ‘ “involves an attempt to bolster a witness by reference to 

facts outside the record.” ’ ” (Huggins, supra, 38 Cal.4th at p. 206.) 

Importantly for purposes of the instant case, Huggins continued, “It is not, 

however, misconduct to ask the jury to believe the prosecution’s version of 

events as drawn from the evidence. Closing argument in a criminal trial is 

nothing more than a request, albeit usually lengthy and presented in 

narrative form, to believe each party’s interpretation, proved or logically 

inferred from the evidence, of the events that led to the trial. It is not 

misconduct for a party to make explicit what is implicit in every closing 
26

argument, and that is essentially what the prosecutor did here.” (Id. at 

p. 207.)10

Similar to the statements in Huggins (and Lopez), the prosecutor’s 

statements in the instant case regarding her belief that Diaz was “lying,” he 

was “not telling . . . the truth,” and she knew “what happened” did not imply

her belief in Diaz’s guilt based on evidence not presented at trial. (See 

Huggins, supra, 38 Cal.4th at p. 206; Lopez, supra, 42 Cal.4th at p. 971.) 

Instead, as shown by the record, these statements by the prosecutor were in 

the context of arguing Diaz’s story was not to be believed based on the 

evidence, including from the testimony of James and April, and the fact Diaz 

“ditched” the knife and fled the scene. (See Shazier, supra, 60 Cal.4th at 

p. 127.) We thus conclude these remarks by the prosecutor were not 

improper.

3. Postarrest Silence

Diaz also contends the prosecutor erred in arguing that “self-defense 

doesn’t come to mind with the facts or the circumstances for one reason. It’s 

not a thing here. And, in fact, it doesn’t even exist in the facts and evidence 

until today when the defendant decided that he was going to get on the 

witness stand and tell you a story.” The prosecutor added, “And then today 

10 See also People v. Lopez (2008) 42 Cal.4th 960, 971 (Lopez) [concluding 

the prosecutor’s remark in rebuttal, “ ‘I think [defense counsel’s] client is 

guilty,’ ” did not constitute prosecutorial error because “the prosecutor’s 

comment did not imply that she based her belief in defendant’s guilt on 

evidence not presented at trial. To the contrary: Because her statement that 

she believed defendant was guilty immediately followed her comment that, in 

her view, defense counsel’s cross-examination of the victims demonstrated 

that they were credible, a reasonable juror would most likely infer that the 

prosecutor based her belief in defendant’s guilt on the credibility of the 

victims’ testimony at trial.”].) 
27

the defendant decided that he was going to testify.” Diaz contends these

statements imply he should not be believed because he did not disclose his 

self-defense theory until he took the witness stand, in violation of Doyle v. 

Ohio (1976) 426 U.S. 610 (Doyle) and other authorities.11 We are 

unpersuaded.

In Doyle, the United States Supreme Court held a prosecutor violates 

due process by using the postarrest silence of a defendant who invoked 

Miranda to impeach an exculpatory explanation subsequently offered by the 

defendant at trial. (Doyle, supra, 426 U.S. at p. 617.) “Silence in the wake of 

these warnings may be nothing more than the arrestee’s exercise of these 

Miranda rights. Thus, every post-arrest silence is insolubly ambiguous 

because of what the State is required to advise the person arrested.” (Ibid.)

The Court has explained: “[The] use of silence for impeachment is 

fundamentally unfair . . . because ‘Miranda warnings inform a person of his 

right to remain silent and assure him, at least implicitly, that his silence will 

not be used against him. . . . Doyle bars the use against a criminal defendant 

of silence maintained after receipt of government assurances.’ ” (Fletcher, 

supra, 455 U.S. at p. 606.)

Doyle error has two elements, “both of which must exist. The first 

element is that the prosecution makes use of a defendant’s postarrest silence 

11 Diaz’s probation report states Diaz postarrest “declined to provide 

officers with a statement” and claimed “he wanted an attorney.” Although 

the record is silent regarding whether Diaz received Miranda warnings, from 

these statements we will assume he was advised of his rights and invoked 

them, both of which are required for Doyle error. (See Fletcher v. Weir (1982) 

455 U.S. 603, 607 (Fletcher) [concluding there is no due process violation 

when cross-examining a defendant on his or her postarrest silence when the 

defendant was not Mirandized].)
28

for impeachment purposes. Use of a defendant’s postarrest silence can occur 

either by questioning or by reference in closing argument. The second 

essential element is that the trial court permits that use. (Greer [v. Miller 

(1987) 483 U.S. 756,] 761-764 [(Greer)].) The type of permission specified in 

Greer will usually take the form of overruling a defense objection, thus 

conveying to the jury the unmistakable impression that what the prosecution 

is doing is legitimate.” (See People v. Evans (1994) 25 Cal.App.4th 358, 368, 

fn. omitted (Evans); see also People v. Clark (2011) 52 Cal.4th 856, 959 

(Clark) [“The United States Supreme Court has explained a Doyle violation 

does not occur unless the prosecutor is permitted to use a defendant’s 

postarrest silence against him at trial.”].) In assessing Doyle error, we 

consider the context of the prosecutor’s argument, and if that argument is a 

“fair response to defendant’s claim or a fair comment on the evidence,” then it 

is permissible. (People v. Champion (2005) 134 Cal.App.4th 1440, 1448

(Champion).)

Here, we conclude there was no Doyle error because the prosecutor’s

remarks were made in reference to the evidence and the credibility (or lack 

thereof) of the witnesses. Indeed, immediately following these remarks the 

prosecutor argued the totality of the evidence supported a finding that Diaz 

had not acted in lawful self-defense, including from the testimony of James, 

April and her 911 call, and James’s statements to Officer Merris following the 

incident, all of which are summarized ante. 

In addition and as we have noted, throughout the trial in this case the 

primary issue before the jury was who started the altercation and, depending 

on that finding, whether James or Diaz acted in lawful self-defense. As 

summarized ante, the defense in questioning James sought to portray him as 

the instigator of the fight, as “mad” and not merely “upset,” after James 
29

testified he believed Diaz was involved in the theft of his scooter. The 

prosecutor’s remarks that self-defense only became an issue on the day Diaz 

testified is thus belied by the record in this case, including by the parties’ 

opening statements when defense counsel argued Diaz did not “unlawfully

assault” James. (Italics added.) (See Thornton, supra, 41 Cal.4th at p. 441 

[jurors are instructed to treat the court’s instructions as the law, and the 

arguments of counsel as words of an advocate].) 

Considered in context, it is unlikely the jury inferred from a few 

fleeting remarks by the prosecutor that Diaz had an obligation to disclose his 

“story” between the time of his arrest and trial. Certainly, that was not the 

focus of the prosecutor’s argument. Instead, a reasonable jury would have 

understood the prosecutor’s remarks as a “fair comment on the evidence” and 

not on Diaz’s postarrest silence. (See Champion, supra, 134 Cal.App.4th at 

p. 1448.)12 

12 For the same reasons, we find inapposite the case of People v. Lindsey 

(1988) 205 Cal.App.3d 112 on which Diaz also heavily relies. In Lindsey, the 

prosecutor condemned defense counsel for failing to disclose before trial the 

defendant’s alibi defense, after the defendant had invoked his right to remain 

silent under Miranda. Unlike the facts of the instant case in which the 

prosecutor’s remarks were made in the context of arguing the evidence and 

the credibility of witnesses, the prosecutor’s argument in Lindsey had nothing 

to do with the evidence: “ ‘Well, it makes me angry as an officer of the court 

that this man [i.e., the defendant] who is innocent, according to [defense 

counsel’s] words, has sat in jail since February 4th, went through a 

Preliminary Examination when the alibi was there all the time and this man 

was in jail and this woman allowed him to sit in jail without coming to the 

District Attorney’s Office, without coming to the Police Department saying, 

listen, we’ve got proof . . . that this man didn’t do the crime. Where was this 

information until today? It’s inconceivable. It goes against common sense, 

and it is unreasonable to believe that another officer of the court would allow 

her innocent client to sit in jail for five months and not say anything to 

anyone.’ ” (Id. at pp. 115-116.)
30

Moreover, we separately conclude there was no Doyle error because the 

second essential element is missing: there is no showing the trial court in 

this case “permit[ted]” the prosecutor to use Diaz’s postarrest silence against 

him (see Greer, supra, 483 U.S. at pp. 761-764; Clark, supra, 52 Cal.4th at 

p. 959), “thus conveying to the jury the unmistakable impression that what 

the prosecution is doing is legitimate” (see Evans, supra, 25 Cal.App.4th at 

p. 368).

III. Cumulative Error

Diaz contends that, even if the asserted errors individually do not 

warrant reversal, the cumulative effect of them does. “A predicate to a claim 

of cumulative error is a finding of error. There can be no cumulative error if 

the challenged rulings were not erroneous.” (People v. Sedillo (2015) 

235 Cal.App.4th 1037, 1068.) 

Moreover, to the “extent there are instances in which we have found 

error or assumed its existence, we have concluded no prejudice resulted.” 

(Chism, supra, 58 Cal.4th at p. 1309; see People v. Williams (2015) 61 Cal.4th 

1244, 1291 [rejecting the defendant’s claim that “numerous alleged errors, 

committed during both phases of his trial, cumulatively prejudiced him” 

because there was either no error “or, in those instances where error has been 

found or assumed, no prejudice”].) 

Because, in the instant case, there was no error or any purported error 

was deemed harmless, we reject Diaz’s contention that his trial was 

fundamentally unfair under the cumulative error doctrine. (See People v.

Rivera (2019) 7 Cal.5th 306, 348 [concluding that, even if the trial court erred 

in admitting evidence of the defendant’s “postcrime statements and conduct,” 

“it was not individually prejudicial,” and thus, refusing to apply the 

cumulative error doctrine to reverse the defendant’s judgment].)
31

IV. Criminal Administration Fee

After Diaz was sentenced and while his appeal was pending, Assembly 

Bill No. 1869 (2019–2020 Reg. Sess.) was signed into law. As of July 1, 2021, 

under Assembly Bill No. 1869, the provision pursuant to which the court 

ordered Diaz to pay a $154 criminal justice administration fee (former 

Government Code section 29550.1) was repealed, and Government Code 

section 6111 was added. (Assem. Bill No. 1869, §§ 11, 24.)

Government Code section 6111, subdivision (a), provides in relevant 

part: “On and after July 1, 2021, the unpaid balance of any court-imposed 

costs pursuant to . . . Sections 29550.1 . . . , as th[at] section[ ] read on June 

30, 2021, is unenforceable and uncollectible and any portion of a judgment 

imposing those costs shall be vacated.”

Diaz, relying on In re Estrada (1965) 63 Cal.2d 740 (Estrada), contends 

Assembly Bill No. 1869 applies retroactively and therefore we should strike 

from the judgment the entire criminal justice administration fee, rather than 

just the unpaid portion of this fee as the People contend. 

This court recently considered the same arguments raised by Diaz and 

determined Estrada did not apply because Government Code section 6111 

expressly provided the fee was collectible until June 30, 2021. (See People 

v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 952.) We adhere to our analysis 

and conclusion in Lopez-Vinck: the repeal of Government Code section 

29550.1 does not entitle Diaz to a disposition striking the imposition of the 

$154 criminal justice administration fee, or to a vacatur of the fee in its 

entirety. Instead, pursuant to section 6111 of the Government Code, Diaz is 
32

entitled to have that portion of the $154 fee that remained unpaid as of July 

1, 2021, vacated from the judgment.13

V. Corrections to Abstract of Judgment

The People in their brief have identified the following errors in the 

abstract of judgment: In table 2, change “PC 12022.27(a)” to “PC12022.7(a)”; 

in table 3, delete the serious felony prior enhancement, as the trial court 

struck, as opposed to stayed it; and in table 4, check the second box marked 

“per PC 667(b)-(i) or PC 1170.12 (strike prior).” Diaz’s reply brief is silent on 

the need for these corrections. We agree with the People. Accordingly, the 

trial court should make these corrections to adhere to the judgment as 

reflected in the reporter’s transcript and the trial court’s minute orders. (See 

People v. Mitchell (2001) 26 Cal.4th 181, 188.)

DISPOSITION

The superior court is instructed to vacate any portion of the criminal 

justice administration fee that remains unpaid after July 1, 2021, pursuant 

to Assembly Bill No. 1869; and to make the corrections to the abstract of 

judgment in accordance with this opinion. The superior court is directed to 

prepare an amended abstract of judgment with these changes and forward a 

13 Because the trial court stayed imposition of the criminal justice 

administration fee, Diaz will have paid none of this fee regardless of whether 

Estrada applied in this case.
33

certified copy to the Department of Corrections and Rehabilitation. In all 

other respects the judgment is affirmed.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O’ROURKE, J.