Filed 7/21/15 P. v. Battle CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL BATTLE,

Defendant and Appellant.

F068190

(Super. Ct. No. F13900064)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. 

Ellison, Judge.

Kyle D. Smith, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney 

General, Carlos A. Martinez and Caely E. Fallini, Deputy Attorneys General, for Plaintiff 

and Respondent.

-ooOoo-

 

* Before Poochigian, Acting P. J., Detjen, J. and Peña, J.
2.

INTRODUCTION

Appellant Michael Battle challenges his convictions for arson of property of 

another and misdemeanor tampering with a fire alarm apparatus on the grounds of 

instructional error. He also challenges his sentence, contending the trial court improperly 

punished him for opting to go to trial instead of accepting a plea. We find no merit in 

either of his contentions and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Trial Testimony

On November 11, 2012, Nicole Navarro lived in an apartment with her two 

children. That morning she heard a loud knocking at her door. When Navarro did not 

answer, she heard a loud noise and saw Battle was inside her apartment. Battle asked 

Navarro who was in the apartment. Navarro ran into her children’s bedroom and shut the 

door, but Battle pushed it open. Navarro and her children ran out of their apartment and 

over to her mother’s nearby apartment. 

Navarro stayed at her mother’s apartment for no more than 30 minutes and then 

returned to her own apartment, accompanied by her mother. She saw Battle running 

down the stairs from her apartment saying, “ha, ha, ha, you bitches.” Navarro ran after 

Battle, but he entered a waiting car and drove away. 

Navarro noticed smoke coming out of her apartment and went upstairs to her 

apartment. The front door was damaged, the faucets were running, and the apartment 

was “thrashed.” Her belongings were scattered about and her couch had been moved. A 

fire was still smoking and some of the clothes in her closet had been burned. 

Navarro did not want to testify at Battle’s trial and officers were sent to her 

residence to bring her to court. She had an on-and-off romantic relationship with Battle, 

during which he regularly came over to her apartment and spent the night, but they had 

broken up about two months before November 11, 2012. 
3.

Pretrial Interview

Navarro had given an interview to Fresno City Fire Investigator Rich Willard on 

November 15, 2012. Navarro told Willard she heard a knock at her door the morning of 

November 11, 2012, and then the door was kicked in and Battle entered the apartment. 

She took her children and left her apartment, staying at her mother’s apartment for about 

30 minutes. Battle was the only person in Navarro’s apartment when she left. Navarro 

went back to her apartment, did not go inside, and yelled, “are you done.” Battle came 

out onto the balcony and said he needed to talk with her; Navarro told him to hurry up 

and get out of her apartment. 

Navarro went back to her mother’s apartment and then returned to her own 

apartment, accompanied by her mother. Navarro saw smoke coming from her apartment. 

Battle then ran down the stairs from her apartment. No one else came out of her 

apartment. 

Navarro went inside her apartment; it was in disarray and smelled of smoke. 

About a year before the interview, Battle had told Navarro that he was going to “light 

[her] ass on fire.” 

Law Enforcement Investigation

On November 11, 2012, Fresno Police Officer Kevin Thakham responded to a call 

for service at Navarro’s apartment. Thakham smelled smoke immediately upon entering 

the apartment. The smoke detector was on the floor and the window in Navarro’s 

bedroom was open. The carpet in the bedroom had a burn mark on it; several items of 

clothing on the floor had burn marks and were “somewhat wet.” Thakham made contact 

with Navarro, who was frightened and upset. 

Fresno Fire Department Investigator Nathan Dansby investigated the fire in 

Navarro’s apartment. There was no active fire or smoke when firefighters arrived on the 

scene, but there was a fire smoldering. The firefighters did not put any water on clothes 
4.

that were on the floor. The smoke detector was on the floor in the bedroom and it 

appeared to Dansby that the smoke detector had been forcibly removed from the wall. 

The only room with fire or smoke damage was the master bedroom. Dansby 

observed fire damage inside the closet of the master bedroom—a wooden rod for hanging 

clothes was charred, a shelf had smoke damage, multiple articles of clothing had burn 

damage, plastic hangers had melted, and part of the carpet was burned. Dansby was of 

the opinion the clothes had been set on fire while they were hanging inside the closet. 

Dansby ruled out that the fire was caused by electrical, mechanical, or natural 

means. He also ruled out that an accelerant was used. Dansby opined that the fire was 

caused by an open flame device, like matches or a lighter; neither of these items was 

found at the scene. 

Charges and Verdict

On March 1, 2013, Battle was charged in count 1 with arson of an inhabited 

structure, in count 2 with arson of property of another, and in count 3 with misdemeanor 

tampering with a fire alarm apparatus. Battle pled not guilty. 

A jury convicted Battle of counts 2 and 3, and of causing a fire that caused an 

inhabited structure to burn, which is a lesser included offense of count 1. Thereafter, the 

People dismissed count 1 in light of the jury’s verdict on count 2. 

The trial court sentenced Battle to a term of three years in state prison on count 2 

and 301 days in the county jail on count 3, with credit for time served. 

DISCUSSION

Battle challenges his convictions on the grounds of instructional error, contending 

the trial court erred in refusing to instruct with bracketed language from CALCRIM No. 

226 regarding a witness who admits to being untruthful. Battle challenges his sentence 

on the grounds the trial court improperly considered his failure to accept a plea and 

instead to opt for a trial as a factor in sentencing. 
5.

I. No Instructional Error

Battle contends the trial court erred prejudicially in not instructing the jury with 

bracketed language from CALCRIM No. 226 that reads: “Did the witness admit to being 

untruthful?” “What is the witness’s character for truthfulness?” “Has the witness 

engaged in [other] conduct that reflects on his or her believability?” We conclude the 

trial court did not err in omitting this language.

Factual Summary

During cross-examination, Navarro responded to questions from defense counsel 

by saying, “I’m going to say I don’t remember. Just take me to jail then. I don’t care.” 

She also responded with, “You are not my friend. You are his friend, not mine.” 

Defense counsel then asked Navarro, “Even if you remember the answer because I’m the 

one who’s asking it, you are going to say that you don’t remember it?” Navarro

responded, “Yes. I don’t remember.” 

After this series of responses, the trial court had the jurors removed from the 

courtroom and admonished Navarro. The trial court instructed Navarro to “[a]nswer 

[the] questions truthfully and honestly. If you don’t remember, you can say you don’t 

remember. If you do, then answer the question truthfully. Agreed?” Navarro responded, 

“Agreed.” 

The jurors were then brought into the courtroom and the trial court again 

admonished Navarro to “answer questions as best you can. You tell the truth. If you 

don’t remember, you can say you don’t remember. If you do, then tell the truth. Agree?” 

Navarro responded, “I agree.” 

Cross-examination by defense counsel resumed. Defense counsel asked Navarro 

if she had told a police officer that she had broken up with Battle the week before the fire. 

Navarro responded that she did not recall making that statement. 
6.

Later, when counsel and the trial court were discussing instructions, defense 

counsel requested the bracketed portion of CALCRIM No. 226 that reads “Did the 

witness admit to being untruthful” with respect to Navarro’s testimony. The trial court 

indicated that had Navarro “admitted to lying either while she was testifying or on some 

previous occasion,” then including the bracketed portion would be appropriate. The trial 

court, however, declined to instruct the jury with the bracketed language because in the 

trial court’s view Navarro had been admonished twice to tell the truth and she had agreed 

she would do so. The trial court felt there was no evidence or indication that Navarro had 

in fact lied in response to any questions. 

Analysis

Battle’s contention on appeal fails for two reasons. First, although Battle contends 

in this appeal that three bracketed sentences from CALCRIM No. 226 should have been 

included in the version of the instruction given to the jury, defense counsel asked in the 

trial court for only one of those bracketed sentences to be included. Specifically, defense 

counsel asked for the sentence “Did the witness admit to being untruthful” to be included 

in the instruction to the jury. Since Battle did not request in the trial court that

CALCRIM No. 226 include the other two bracketed sentences when given to the jury, he 

has forfeited this aspect of his contention on appeal. (People v. Guerra (2006) 37 Cal.4th 

1067, 1134.)

Second, the trial court was correct in declining to include in the jury instructions 

the sentence “Did the witness admit to being untruthful.” In contrast to the cases cited by 

Battle in support of his contention that this sentence should have been included, Navarro 

did not admit to being untruthful in her testimony and there was no character evidence 

introduced to establish that she had a reputation for being untruthful. 

Admittedly, at trial Navarro stated she would start responding to defense counsel’s 

questions with a claim she could not remember, even if she could. After this remark, 

however, the trial court twice admonished Navarro to testify fully and truthfully, and 
7.

Navarro twice agreed to do so. While Battle contends that Navarro responded 33 times in 

cross-examination that she could not remember and claims this is evidence she was lying 

in response to defense questions, she also stated this response 19 times in response to 

questions from the People. 

Regardless, any improper omission of jury instructions is evaluated under the 

standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Larsen

(2012) 205 Cal.App.4th 810, 830.) The jury was instructed that in evaluating witness 

credibility, it could consider anything that tends to prove or disprove the accuracy of the 

testimony, a witness’s behavior and attitude while testifying, prior inconsistent 

statements, and a witness’s ability to remember. The instructions, when considered as a 

whole, properly guided the jury’s evaluation of a witness’s credibility and testimony. 

(People v. Rodrigues (1994) 8 Cal.4th 1060, 1144.) 

II. Battle Properly Was Sentenced

Battle contends the trial court erred in sentencing him because it improperly 

considered as a factor his decision to stand trial instead of accept a plea. His contention 

lacks merit.

Factual Summary

 The People initially offered Battle a stipulated three-year prison term in exchange 

for a plea to count 2; Battle rejected the offer. Before trial commenced, the trial court 

told Battle that there was no current offer from the People. The trial court indicated it 

had told defense counsel that “[Battle] would have to plead to arson of an inhabited 

structure,” and that the trial court would impose the mitigated term of three years “with 

all of [Battle’s] cases included.” The trial court stated, “that’s the only offer that you 

have before you, and told Battle to think about it and provide a decision the next 

morning. Battle declined to plead. 

After the conclusion of the trial, the probation department prepared a report 

recommending Battle be sentenced to a term of three years in prison for the instant case, 
8.

plus a consecutive eight-month term for his conviction in another case for violating 

Vehicle Code section 2800.2, subdivision (a). The probation department found no factors 

in mitigation, but listed five aggravating factors. Battle was statutorily ineligible for 

probation. 

In sentencing Battle, the trial court stated, “How it gets to court and how it gets to 

trial is of some importance to me.” Subsequently, the trial court stated, “You get to go to 

trial, sir, and I told you this—I’m not going to punish you for making the decision to go 

to trial, but you do live with the consequences.” 

Before articulating the sentence to be imposed, the trial court noted that Battle had 

a serious criminal history, detailed over three pages of the probation report, which the 

trial court described as “relentless.” The trial court also noted Battle previously was 

“involved with setting fires at school or something like that.” The trial court went on to 

state, “I have to protect the community, sir. The behavior you engaged in in both of these 

two cases puts the community at risk. Driving [in] a high speed chase with the cops into 

somebody’s house [is] pretty serious stuff.” 

Ultimately, the trial court imposed a sentence in accordance with the 

recommendation of the probation department: the aggravated term of three years for the 

section 451, subdivision (d) conviction, a felony, and a consecutive term of one-third the 

midterm, or eight months, for violating Vehicle Code section 2800.2, subdivision (a), a 

felony. As for the misdemeanor convictions in both cases, the trial court stated those 

would be “credit for time served.” The trial court also found that based upon the current 

offenses, Battle was in violation of his probation that had been granted in yet another 

case. The time to be served as a result of the violation and revocation of probation was to 

be served concurrently. 

Analysis

It is a violation of due process to penalize a defendant for exercising his or her 

right to a trial. (In re Lewallen (1979) 23 Cal.3d 274, 278 (Lewallen).) A trial court 
9.

“‘may not treat a defendant more leniently because he foregoes his right to trial or more 

harshly because he exercises that right.’” (People v. Clancey (2013) 56 Cal.4th 562, 

575.) A defendant must make “‘some showing, properly before the appellate court, that 

the higher sentence was imposed as punishment for exercise of the right.’” (People v. 

Ghebretensae (2013) 222 Cal.App.4th 741, 762.) 

Battle opines that the trial court was displeased that he exercised his right to a trial, 

believed he made a bad decision in exercising his right to a trial, and wanted to avoid the 

inconvenience of a trial. This is not borne out by the record. Prior to trial, the trial court 

stated, “Mr. Battle, I want you to understand this conversation I’m about to have with 

you—you have an absolute right to a jury trial. I’m not interested in talking you out of 

that, sir. That’s the truth. If I’m not doing your trial, Mr. Battle, I’ll be doing somebody 

else’s, so it’s okay by me if you go to trial.” The trial court’s record comments belie 

Battle’s subsequent attempt to misconstrue remarks made by the trial court at sentencing. 

Battle has failed to demonstrate that his sentence was imposed as punishment for 

exercising his right to a trial. The probation report recommended the aggravated term for 

the section 451, subdivision (d) offense, and the trial court specifically referenced an 

appropriate sentencing factor—Battle’s extensive criminal history—in imposing the 

aggravated term of three years. (Cal. Rules of Court, rule 4.421(b).) A single factor in 

aggravation is sufficient to impose the upper term. (People v. Black (2007) 41 Cal.4th 

799, 815.) 

A trial may reveal more adverse information about a defendant than was known at 

the time a plea was offered, which adverse information would warrant an increased 

sentence from what was indicated in a plea offer. (Lewallen, supra, 23 Cal.3d at p. 281.) 

Here, unlike Lewallen, the trial court’s sentence was consistent with the probation 

department’s recommendation and was the same term—three years—that the trial court 

indicated it would impose if Battle had pled to the count 1 offense. 

DISPOSITION 
10.

The judgment is affirmed.