Filed 1/28/ 21 P. v. Reyes CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. DANIEL REYES, Defendant and Appellant. G058538
(Super. Ct. No. 17CF0039)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed.

Joseph F. Walsh for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
* * *2 A jury convicted defendant Daniel Reyes of domestic battery with corporal injury of L

. A. (Pen. Code § 273.5, subd. (a); count 1) and assault with a semiautomatic firearm (Pen. Code § 245, subd. (b); (count 2 )

. The jury also found defendant personal ly used a firearm (Pen. Code § 12022.5, subd. (a)) during the commi ssion of both offenses. The court imposed a three

- year prison sentence on count 2 . The court also imposed a three

- year sentence on count 1, but stayed the sen tence pursuant to Penal Code section
654 . The court struck the punishment for the firearm enhancement.

Defendant raises seven contentions on appeal: (1) the court erred in denying his motion to exclude from evidence the gun allegedly used in the assault and battery ; (2) the court erred in admitting evidence of an uncharged act of domestic
violence under Evidence Code section 1109 ; 1 (3 ) the court erred when instructing the jury concerning the section 1109 evidence; ( 4 ) defense counsel provided ineffective assistance of counsel by failing to object to some of L .A. ’s testimony; (5) the court failed to instruc t sua sponte with CALCRIM No. 3477 (presumption the defendant was reasonably afraid of death or great bodily inju ry while in his home ) ; (6 ) the court erred in limiting a defense of property instruction as applicable only to count 2 ; and (7 ) the court erred in instructing the jury of the unanimity requirement. We reject each contention and affirm the judgment

.

FACTS AND PROCEDURAL HISTORY

In 2016, defendant and L .A. were in a “ traditional romantic relationship ” ; L .A. “ would stay [at defendant ’ s house] most of the week . . . . ” L .A. spent Christmas morning of 2016 with defendant and his children

. T hat night L .A. and defendant went to a nightclub and bar. L .A. co nsumed four shots and two alcoholic beverages at the bar.

1 All further statutory references are to th e Evidence Code unless otherwise stated.3 L .A. saw a male acquaintance at the bar who kissed her on the ch eek when he greeted her. Defendant accused L .A. of kissing the male acquaintance , called her a

“ hoe, ” and left the bar. L .A. remained at the bar and eventually used a rideshare service to get back to defendant ’ s house between midnight and 2:00 a.m.

L .A. was unable to find her key to defendant ’ s house, so she went to the
front door , knocked , and rang the doorbell. The door was locked, so s he went into the backyard and tr ied to open the back door , but it also was locked. While in the backyard,

s he kn ocked on defendant ’ s bedroom window and called his name, but he did not respond

. She returned to the front of the house and checked t o see if the front door
was unlocked

. Defendant opened the door dressed in his underwear and holding a handgun. Defendant pointed the gun at L .A. ’s face and called her a “whore” and “hoe

. ”
L .A. stepped into the entryway and crouch ed down with her face toward the floor

. At some point, d efendant told L .A. she was blee ding, so she touched the back of her head
and saw blood on her hand. Defendant walked away and set the gun down

. L .A. ran out the door toward a neighbor’s house , calling for help. A female neighbor told L.A. she would call the police. A surveillance vi deo showed L.A. with two neighbors, crying and saying , “H e hit me.”

Although L .A. never felt or saw defendant hit her , she assumed he hit her with the gun because he was standing close to her. 2 She later learned she had a cut on the
back of her head which required five staples to close it.

At trial defendant made an oral motion in limine to exclude from evidence a ha ndgun recovered from his house. The court did not conduct an evidentiary hearing, but
heard the following arguments of both counsel

.

2 During cross

- examination, L .A. a dmitted she testified at the preliminary hearing that defendant did not h it her in the back of the head. She testified she was lying during the preliminary hearing because she was afraid of defendant.4 According to defense counsel, a fter defendant was arrested, an officer read
him his Miranda rights and he invoked his right to remain silent. 3 He also did not

consent to a search of his house. The officers acquired a search warrant for defendant’s
ho use . In the affidavit for the search warrant, the officers stated they were looking for firearms and specifically requested “the ability to bring i n a civilian locksmith if necessary to breach” a gun safe. 4 During the search of defendant’s ho use , the officers discovered a gun safe in defendant’s bedroom closet. Before bringing in a locksmith, an officer contacted defendant in custody and requested the com bination to the safe without

re advising defendant of his Miranda rights. Defendant provided the combination allowing the officers to search the safe in which they found a gun with what appeared to
be a human hair attached to the barrel.

D efense counsel argued , without any evidentiary support, that the officers
violated his Miranda and Fifth Amendment rights by asking defendant for the combination to the safe after he had previously asserted his right to remain silen t , and , therefore , the gun recovered from the safe must be excluded as fruit of the poisonous tree.

The prosecution argued , again without any evidentiary support, that the
officer told defendant “we are going to get into the safe, but if you want to give us the
combo so we don’t destroy it, you can do that” ; thus the gun should be admitted into evidence under the inevitable discovery rule.

The court denied defendant’s motion. Citing U.S. v. Patane (2004) 542
U.S. 630 ( Patane ) , the court noted a Miranda violation only protects against the admission of coerced statements, not physical evidence. The court also ruled the gun was admissible under the inevitable discovery rule.

3 Miranda v. Arizona (1996) 384 U.S. 436.

4 At trial, L .A. testified she had previously seen defendant’s guns in a gun safe he kept locked

.5 DISCUSSION

Defendant ’ s Motion to Exclude Evidence

Defendant contends the court erred in denyi ng his motion in limine to
exclude the gu n recovered from his gun safe. We disagree.

We begin by stating the familiar rule

— a ruling of the trial court is presumed correct. ( People v. Booth (2018) 25 Cal.App.5th 450, 452 [“The judgment is presumed correct. It is defendant’s burden to affirmatively demonstrate error” ]. ) Neither party discussed the standard of review on appeal , we can understand why. A ruling on a motion to suppress evidence depends upon the presentation and weighing of evidence , and here we have no evidence suggesting a Miranda violation, much less that discovery
of the evidence was inevitable

. All we have in the appellate record is the argument of
counsel

. While we could justifiably affirm the ruling denying the motion to suppress based upon t he total lack of an evidentiary record , in the interest of justice we will
nevertheles s discuss the merits of counsel s ’ argument , under the assumption that the facts
referenced in their respective trial court argument s are undisputed. But we cannot pass
the lack of a record and the evident procedural problem s in the trial court without further

comment. Proper p rocedure is important

— it assures fairness ; here , procedure was ignored. To begi n, there is no evidence in the record that the police officer asked defendant for the combination to the gun safe without a further Miranda warning. Counsel proceeded as though this was an acknowledged fact

. But w e do not have an evidentiary rec ord establishing this foundation al fact , or , for that matter, any evidence of what was said during the purported conversation between defendant and the police
officer

. Under the inevitable discovery exception to the exclusionary rule,

“ Evidence need not be suppressed if the prosecution can establish by a preponderance of6

the evidence that the information would inevitably have been discovered by lawful

means. ” ( People v. Carpenter (1999) 21 Cal.4th 1016, 1040) “ As this is essentially a question of fac t, we must uphold the trial court ’ s determination if supported by
substantial evidence. ” ( Ibid .) Thus, u nder the appropriate standard of review, we look
for evidence s upporting the inevitability of discovery. But here, an evidentiary record is completel y missing

. The record does not even contain evidence that the police officer
asked defendant for the combination to the safe. And the prosecution did not have a fair opportunity to present evidence supporting application of the inevitable discovery
doctr ine. Defendant sprang the oral motion in limine on the prosecution without notice , without evidence, and without briefing

. As the trial court observed during the hearing , “As far as a motion to suppress evidence, first of all, you are in complete violati on of rule
800 . There has been no notice, it hasn’t been calendared, litigated, brie f ed. B oth of [you] guys announced ready for trial. We are in the tail end of 402’s.”

The court ’s reference to r ule 800 was a reference to the local Orange County Supe r ior Court rule governing the procedure for pretrial motions in felony cases. ( Super. Ct. Orange County , Local Rules, rule 800 (R ule 800) .) Rule 800 applies by its terms to a “[m]otion under Penal Code section 1538.5 and other motions to suppress
evi dence or for return of property unlawfully seized.” ( R ule 800(A)(3).) It expands on the basic procedural requirements for all pretrial motions in criminal cases under California Rules of Court, rule 4.111. Among those requirements is that the motion be “accompanied by a memorandum, . . . served and filed at least 10 court days . . . before the time appointed for hearing.” (Cal. Rules of Court, rule 4. 111(a) ; accord R ule 800 ( B)(1) [“all motions, together with points and authorities, must be in writing a nd must be
served and filed . . . in accordance with Rule 4.111 of the California Rules of Court ”] .) Importantly, California Rules of Court, rule 4.111(b) provides that “[t]he court may consider the failure without good cause of the moving party to serve and file a memorandum within the time permitted as an admission that the motion is without7

merit.” ( Ibid .; a ccord, ru le 800 (G)(1) [ “If any motion subject to this rule is not made within the time limits and pursuant to the requirements of this rule, the failure to do so

s hall constitute a waiver of the right to make the motion, but the court for good cause shown, may grant relief from the waiv er”].)

Penal Code s ection 1538.5 likewise limits the circumstances under which a motion to suppress may be heard at trial, instead of as a properly briefed pre trial motion. 5

“ If, prior to the trial of a felony or misdemeanor, opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion, the defendant shall have the right to make this motion during the course of trial. ” (Pen. Code, § 1538.5, subd. (h).) Here, there is no suggestion or argument that defenda nt did not know of the alleged
Miranda violation in time to make the motion to suppress well before trial.

Despite these procedural defects, which alone would have justif ied the denial of defendant’s motion , the court nevertheless heard the argument s of c ounsel , unsupported by any evidentiary showing by either party

. (See R ule 800( E)(4) [“If the pleadings (mov i ng , responding and reply papers) raise no disputed issues of fact, the court will determine said motion on the pleadings and the argument of counsel ”].) Here, we have no pleadings . But t he parties have not argued , neither on appeal n or at the trial
court, that there are any disputed issue s of fact.

5 Penal Code s ection 1538.5 provides: “ A defendant may move . . . to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizu re on either of the following grounds: ” “ The search or seizure with a warrant was unreasonable because any of the following apply: ” “ the method of execution of the warrant violated federal or state constitutional standards ” or “ [t]here w as any other violation of federal or state consti tutional standards.” ( Id. , subd s . (a) (1) ( B)(iv), (v).) Here, defendant alleged a violation of his Fifth Amendment rights during the execution of the warrant by obtaining the combination to the safe without giving a Mir anda warning. Section 1538.5 , subdivision (a)(2) likewise provides that the motion “ shall be made in writing and accompanied by a memorandum of points and authorities and proof of service. ”8 Treating counsel’s arguments as if they were undisputed facts , we note t he police had a lawful warrant to search defendant ’ s house which specifically allowed them
to search for a safe. I n executing the warrant the officers were spec ifically looking for
firearms. In the warrant affidavit, the officers asked to be allowed to “ bring in a civilian
lo cksmith if necessary to breach ” a gun safe

. T his fact alone support s the court ’ s determination the gun would have been lawfully discovered regardless of defendant providing the combination. In executing a search warrant “ [t] he officer may break open any outer or inner door or window of a house, or any part of a house or anything
therein

. . . . ” ( Pen

. Code § 1531 , italics added .) “A search of the residence authorizes the search of all areas of the residence, including conta iners therein, which could hold the
contraband described in the warrant. ” ( People v. Kibblewhite (1986) 178 Cal.App.3d 783, 785.) The fact that the warrant affidavit specifically asked to “bring in a civilian locksmith, if necessary” demonstrates the off icers were going to open that safe, with or
without defendant providing the combination, and thus discovery of the gun was
inevitable. Moreover, the officers ’ determination to open the gun safe , with or without
the combination , was mad e clear when the off icer told defendant “we are going to get into the safe, but if you want to give us the combo so we don’t destroy it, you can do
that

. ” Citing People v. Superior Court ( Corbett ) (2017 ) 8 Cal.App.5th 670, defendant argues the “ inevitable discovery rule does not apply to the search of a person ’ s home. ” However, Corbett does not stand for such an absurdly broad proposition. In
Corbett , law enforcement conducted a warrantless search of the defendant’s home based
on information obtained from the defendant in violation of his Fourth and Fifth Amendment rights. There, “the People did not present evidence that law enforcement was engaged in any lines of investigation that would ultimately have led them to the illegal firearms in [the defendant’ s] home without the information gleaned through the ‘overreaching by the police’” ( Corbett , at p. 684.) The court did not broadly rule that the9

doctrine cannot app ly to the search of any home. Here, the police obviously knew about the gun safe and exhib ited their intent to open it before obtaining the combination.

Thus, we conclude t he court did not abuse its discretion in ruling the gun
would inevitably have been discovered. The police were looking for a gun, a valid warrant was obtained, and the polic e had demonstrated their intent to open a gun safe

w ith or without a combination provided by defendant . That defendant provided the combination in an uncoerced manner simply served to “save the safe” from damage or
destruction. 6

Section 1109
T he pro secutor moved in limine to admit evidence of a prior uncharged act of domestic violence against L.A. pursuant to section 1109. Defendant argued the
incident should be exc luded pursuant to section 352. The court granted the prosecutor ’ s motion over defendant ’ s objection. On appeal, d efendant argues the court erred by allowing the evidence.

6 The parties extensively brief the question whether phy sical evidence recovered as a result of a Miranda violation can be excluded as “fruit of the poisonous tree.” Defendant relies primarily on People v. Schader (1969) 71 Cal.2d 761. In Schader , the California Supreme Court held the “exclusionary rule is applied to the fruits as well as the words of an illegally obtained confession.” ( Id . at p. 778.) The Attorney General relies on Patane , supra , 542 U.S. 630 and People v. Davis (2009) 46 Cal.4th 539. In Patane , the United States Su preme Court held in a plurality opinion that “the Miranda rule is a prophylactic employed to protect against violations of the Self

Incrimination Clause,” and “is not implicated by the admission into evidence of the physical fruit of a voluntary statement. ” ( Patane , supra , 542 U.S. at p. 636 .) In Davis , the California Supreme Court held that “ [t] he fruit of the poisonous tree doctrine does not apply to physical evidence seized as a result of a noncoercive Miranda violation.” ( Davis , supra , 46 Cal.4th at p . 598.) Because we determine the gun inevitably would have been discovered through lawful means regardless of any Miranda violation, we need not address whether the evidence could be excluded because of a Miranda violation.10 L.A. testified that in July 2016 she was at defendant ’ s house. While sitting on the bed, d efe ndant pushed her o nto the floor , took her cell phone , and threw it against
the wall.
S ection 1109, subdivision (a)(1), provides : “ [I] n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the
defendant ’ s commission of other domestic violence is not m ade inadmissible

. . . if the evidence is not inadmissible pursuant to Section 352. ”

In turn, section 352 affords the court the discretion to “ exclude evidence if its probative value is substantially outweighed by the prob ability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. ” In this context, the word

“ prejudice ” is used in the sense of “‘ an emotiona l bias ’ ” ( People v. Jennings ( 2000) 81 Cal.App.4th 1301, 1315

- 1316) or “‘“ of ‘ prejudging ’ a person or cause on the basis of
extraneous factors ” ’” ( People v. Harris (1998) 60 Cal.App.4th 727, 737), and is not synonymous with “‘“ damaging ” ’” ( People v. Karis (1988) 46 Cal.3d 612, 638). In deciding whether propensity evidence is admissible under section 352, “ trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likeli hood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availabili ty of less prejudicial alternatives to its outright admission . . . . ” ( People v. Falsetta (1999) 21 Cal.4th 903, 917.)

Here, t he court did not abuse its discretion. The uncharged incident happened six months before the charged incident , so it was not r emote in time. The prior conduct involved only a push without substantial injury , so it was unlikely to have an undue prejudicial impact on the jury. Further, defendant ’ s conduct in the prior incident
was distinct from the current offense , so it was unli kely to confuse or mislead the jurors11

as to what conduct they were considering for the current offense. Finally, the evidence of the prior incident was brief and thus did not lead to an undue consumption of time.

Accordingly, the court did not abuse its discretion by allowing evidence of
the prior uncharged incident.

Ineffective Assistance of Counsel

During her testimony, L.A. initially said she assumed defendant hit her on the back of the head with a gun. She later testified , however, that she was afraid of defendant because he hit her with the gun. Defendant argues on appeal that L.A. lacked personal knowledge to be able to testify that defendant hit her with the gun and his counsel was ineffective for not objecting. Assuming for the sake of argument that L.A. lacked personal knowledge , w e disagree defendant ’ s counsel was ineffective for failing to object

. To establish ineffective assistance of coun sel, a defendant must prove his
counsel ’ s performance was deficient, and that his defense was prejudiced because of this deficiency. ( Strickland v. Washington (1984) 466 U.S. 668, 687.) “When examining an ineffective assistance claim, a reviewing court d efers to counsel’s reasonable tactical decisions, and there is a presumption counsel acted w ith in the wide range of reasonable professional assistance.” ( People v. Mai (2013) 57 Cal.4th 986, 1009.) “On direct appeal, a conviction will be reversed for ine ffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical p urpose for the challenged act or omission, (2) counsel w a s asked for a reason and failed to provide one, or (3) there simply could be no satisfactory expla nation.” ( Ibid .) Moreover, “ t here is no reason for a court deciding an ineffective assistance claim

. . . to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court nee d
not determine whether counsel’ s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. ( Strickland , at12

p. 697 ; accord People v. Mestas (2013) 217 Cal.App.4th 1509, 1518 [“ If there is no showing of pre

judi ce, we need not examine counsel’ s performance ”].) Here, d uring cross

- examination, d efense cou nsel established L. A. was looking at the ground and thus could not have seen defendant hit her with the gun in the
back of the head

.

“A It happened so fast . I wasn’t watching him. I had my face facing the floor, so obviously I didn’t see exactly what was going on.

“Q So we are clear then, you don’t ever remember seeing him hit you with a gun?

“ A No, I didn’t see him.

“Q But you have assumed that he did? “A Right, because he was right in front of me, yes.” The prosecutor likewise established, d uring his redirect examination of
L.A. , that her crouched position would not have allowed her physically to see defendant
hit her with the gun

.

“ Q My question was , with you looking down and seeing his feet would it have been possible for you to see him hit you with the gun?

“A No, unless I was looking up, and I wasn’t. “Q And you weren’t.
“A I wasn’t.” And in closing argument, the prosecutor argued t hat L.A.’s inability to see the gun strike her actually bolstered her credibility as a witness.

“To her credit she never said, I looked up and saw him hit me. She said he was standing over me and I looked down.

“If the defense tries to insinuat e that she is in some way trying [to] fabricate the evidence or slam the defendant in some way, how easy would it have been for her to say, well, I looked up and saw him hit me with it. She never ever said that. ”13 The prosecutor emphasized the point by later repeating it. “It would have been so easy to just say I saw that happen. But she maintained I was looking down. I couldn’t have seen it. I saw his feet directly in front of

me . And then I’m bleeding.”

With the defendant’s cross exami nation and the prosecutor’s acknowledgment that it would have been physically impossible for L.A. to have seen defendant strike her, there could have been no doubt in the jury’s mind that L.A. did not physically see the gun strike her . Her testimony , that defendant hit her with the gun , was clearly a shorthand description of her perception of the event, based on the circumstantial
evidence she had observed : defendant’s anger with her that evening ; defendant holding a
gun and pointing it at her ; standing o ver her while she crouched in the entryway; and suddenly bleeding from her head

. Her perception of what happened to her was a classic lay opinion, admissible under section 800 , as rationally based on her perception and helpful to a clear understanding of her testimony. An objection would not only have been futile, but it also would have appeared silly. Counsel was wise not to appear silly. Counsel was not ineffective, and even if he were , there could have been no prejudice. The jury could not have understood under these circumstance that L.A. saw the gun descending to the back of her head.

Instructional Error

Defendant makes three claims of instructional error arguing : (1) the court
erred by instructing the jury they could use the sec tion 1109 ev idence as to both the
assault with a firearm offense (count 2) and the domestic violence offense (count 1) ; (2)
the court erred by instructing the jury that the defense of property instruction, CALCRIM
No. 3476 , applied only to count 2 , and not to count 1 , and by failing to instruct sua sponte

w ith CALCRIM No. 3477 (presumption that resident was reasonably afraid of death or great bodily injury from intruder ) ; and ( 3 ) the court improperly instructed with an edited14

version of the unanimity instruction, CALCRIM No. 3500. We address each claim of
instructional error in turn and disagree with each.

“ In considering a claim of instructional error [reviewing courts] must first ascertain what the relevant law p rovides, and then determine what meaning the instruction given conveys. ” ( People v. Andrade (2000) 85 Cal.App.4th 579, 585.) We apply the de novo standard of review in determining whether a jury instruction correctly states the law. ( People v. Posey (20 04) 32 Cal.4th 193, 218.)

1. The section 1109 evidence (uncharged act of domestic violence) could properly be considered for both counts. The c ourt instructed the jury it could use the sectio n 1109 evidence to

“ conclude that the defendant was likely to commit the offenses alleged in counts 1 and/or
2. ” Defendant argues the court erred by allowing the jury to consider evidence of an

un charged act of domestic violence in relation to count 2

. He asserts the offense of
assault with a firearm is not an offen se involving domestic violence. We disagree. As
discussed above , section 1109 allows evidence of an uncharged act of domestic violence to be used as propensity evidence for an offense “ involving domest ic violence. ” So the issue is simply whether the assault with a firearm offense “involves” domestic violence.

Section 1109 defines “ ‘ domestic violence ’ ” as having “ the meaning set
forth in Section 13700 of the Penal Code. ” ( Id

. , subd. (d)(3).) In turn, Penal Code
section 13700 defines “ ‘ domestic violence ’ ” as “ abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with
wh om the suspect has had a . . . dating or engagement relationship. ” ( Id

. , subd. (b).) It is undisputed defendant was in a dating relationship with L.A. when the charged offense
was committed.

But d efendant argues an offense can only qualify under section 1109 if the

“ victim ’s and the defendant ’ s domestic relationship [is] an element of the crime. ”15

D efendant provides no authority to support this assertion. Courts have routinely foun d
that assaults under Penal Code section 245 qualify as crimes of domestic violence when
the defendant ’ s and victim ’ s relationship qualified under Penal Code section 13700. (S ee
e.g. People v. Jennings (2000) 81 Cal.App.4th 1301, 1308; People v. Truong (2 001) 90 Cal.App.4 th 887, 899

- 900 .) T he plain language of section 1109 does not require the relationship to be an element of the charged offense. We reiterate

. Under section 1109 the prior act evidence is admissible when “the defendant is accused of an offense involving domestic violence , ” it does not say the evidence is admissible when the
defendant is accused of the crime of domestic violence. ( Id ., subd. (a)(1).) “ W hen the statutory language is clear and unambiguous, there is no need for construction and courts
shoul d not indulge in it. [Citation.] The plain language of the statute establishes what was intended by the Legislature. ” ( People v. Fuhrman (1997) 16 Cal.4th 930, 937. ) We
decline to read the posited requirement into the statute.

Defendant also argues his due process rights were violated because the charge of assault with a firearm “ does not give notice that it is a domestic violence
offense. ” However, defendant was also charged with an enhancement under Penal Code section 12022.7, subdivision (e) , al leging that when he committed the assault with a
firearm he “ personally inflicted great bodily injury on [L.A.] under circumstances involving domestic violence as described in Penal Code sec tion 13700(b)

. ” Thus, there

was no conc eivable issue of lack of notice

.

2. The court was not obligated to instruct with CALCRIM No. 3476 as to count 1 n or to instruct sua sponte with CALCRIM No. 3477

. Defense counsel requested the court to instruct the jury with CALCRIM
No. 3476 as to count 2. The court granted the request and instructed the jury, in part,

“ [t]he owner or possessor of real or personal property may use reasonable force to protect16

proper ty from imminent harm. ” The instruction stated the defe nse was applicable to
count 2. During the discussion regarding CALCRIM No. 3476, the court asked
defendant ’ s counsel if CALCRIM No. 3477 should be given as well. 7 Counsel declined , saying he was not requesting CALCRIM No. 3477 because, “ I discussed that with [defendant] and we read the applicable trial testimony. My position and [defendant ’ s] position is [CALCRIM No. 3477] is not applicable to the facts in our case primarily
because it doesn ’ t in volve an intruder entering the home at the time of the confrontation between [defendant] and [L.A.] ”

Now, on appeal, d efendant argues the court erred by ( a ) instructing the jury that CALCRIM No. 3476 (right to defend real or personal property) applied on ly to count 2 and ( b ) failing to instruct sua sponte with CALCRIM No. 3477 (presumption that resident was reasonably afraid of death or great bodily injury from an intruder ).

a. CALCRIM No. 3476

“ It is well settled that a defendant has a right to have the trial court, on its own initiative, give a jury instruction on any affirmative defense for which the record
contains substantial e vidence [citat ion]

— evidence sufficient for a reasonable jury to find
in favor of the defendant [citation]

—unless the defen se is inconsistent with the
defendant ’ s theory of the case [citation]

. ” ( People v. Salas (2006) 37 Cal.4th 967 , 983.)

7 CALCRIM No. 3477 states, in relevant part: “ The law presumes that the defendant reasonably feared imminent death or great bodily injury to (himself/herself) . . . if: [¶] 1. An intruder unlawfully or forcibly (entered /[or] was entering ) the defendant ’ s home; [¶] 2. The defend ant knew [or reasonably believed] that an intruder unlawfully and forcibly entered/ [or] was entering) the defendant ’ s home; [¶] 3. The intruder was not a member of the defendant ’ s household or family; [¶] AND [¶] 4. The defendant used force intend ed to or likely to cause death or great bodily injury to the intruder inside the home. ”17 S ubstantial evidence did not support extending CALCRIM No. 3476 to
count 1. There was no evidence t o suggest L.A. was a threat to defe ndant ’ s property once he opened the door and recognized it was her. Defendant argued he opened the door and pointed the gun at L.A. because he feared she was breaking into his house. And
the court correctly instructed on that theory with CALCRIM No. 3476 as applied to count
2

. But count 1 , the domestic violence with corporal injury , w as based on defendant striking L.A. with the gun after he knew it was her and began speaking to her. There was

no evidence presented to support a theory defendant was afraid L.A. was a threat to his property once he opened the door and recognized her

.

In any event, any error in failing to extend CALCRIM No. 3476 to count 1 was harmless under any standard of review. D efendant was able to argue he was defending his property when he committed the assault with a firearm . Indeed , that was his principal argument to the jury. But the jury rejected the argument. Both counts were based on the same incident, so there is n o reason the jury would have accepted the
defense as to count 1 while rejecting it as to count 2

.

b. CALCRIM No. 3477 There was a complete lack of evidence which would have supported instructing the jury with CALCRIM No. 3477. L.A. was a member of defendant ’ s household , not an unknown intruder . It was undisputed she had a key to the residence and stayed at his house most nights of the week. Further, there was no evidence L.A.
unlawf ully or forcibly entered defendant ’ s home nor evidence he believed she was an intruder when she entered his house. Thus, the court was correct to refrai n from instructing the jury with CALCRIM No. 3477.18 3. The unanimity instruction was not erroneous. Defendant argues the court erred by instructing the jury with an edited
versio n of CALCRIM No. 3500 which stated : “ The defendant is charged with inflicting injury on someone with whom the defendant currently has, or previously had a dating relationship r esulting in traumatic condition in Count 1 and Assault with Semiautomatic
Firearm in Count 2. [¶] The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless y ou all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed. ”

Defendant argues the wording of this version of CALCRIM No. 3500 allowed the jury to convict him of both counts “ if the jury found he committed one of the

counts ” and further allowed the jury to convict him of both counts “ if they all agreed that he po inted a loaded firearm at” L.A

. We disagree with both claims.

“ [T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular
instruction. ” ( People v. Burgener (1986) 41 Cal.3d 505, 538 disapproved on another point in People v. Reyes (199 8) 19 Cal.4th 743, 756

. )

Here the jury was also instructed with CALCRIM No. 3515 which said, “Each of the counts in this case is a separate crime. You must consider each count separately and return a separate verdict for each one.” Further, the instruct ion for count 1 instructed the jury they could only find defendant guilty of that count if the prosecution proved “[t]he defendant willfu lly inflicted a physical injury on ” L.A. We must “‘ assume that the jurors are intelligent persons and capable of under standing and correlating all jur y instructions which are given. ’” ( People v. Yoder (1979) 100 Cal.App.3d 333, 338.) Given that context, there was no error with the version of CALCRIM No. 3500 given to the jury.19 DISPOSITION

The judgment is affirmed.

IKOLA, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.