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People v. Dominguez1/12/2005
n in a prior assault, and advised the jury that it could consider this evidence as tending to prove that the victim was the aggressor in the stabbing. Thereby, the instruction would have invited the jury to draw an inference favorable to the defendant from a specified item of evidence on a disputed question of fact. As such, the instruction was argumentative. " he effect of certain facts on identified theories 'is best left to argument by counsel, cross-examination of the witnesses, and expert testimony where appropriate.' [Citation.]" (Ibid.)
In considering whether Cordero or the defendant was the aggressor in this case, the jury should consider all the facts to make this determination. By directing the jury that they may consider the evidence that Cordero had participated in an assault on a prior occasion or occasions on the issue of who was the aggressor, defendant's proposed instruction improperly singled out one fact, favorable to the defendant. Thus, the instruction was objectionable as argumentative and properly refused. (People v. Wharton, supra, 53 Cal.3d at p. 571.)
Relying on People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), defendant argues that if the requested instruction was improper or incorrect in any way, the trial court had the duty to correct it rather than reject it. In Falsetta, the Supreme Court concluded that the trial court properly declined to give a requested limiting instruction concerning the jury's consideration of evidence of the defendant's prior sex offenses. (Id. at p. 922.) The court found that the instruction was defective in several respects. Contrary to the lower court, however, the Supreme Court held that the trial court erred in failing to tailor the defendant's proposed instruction to give the jury some guidance regarding the use of the other crimes evidence. (Id. at p. 924.)
In this case, unlike in Falsetta, defendant was not requesting a limiting instruction. Rather defendant was asking the jury to take a particular piece of evidence and use it for a particular purpose to his advantage. Accordingly, we find Falsetta inapposite in this case.
Disposition
The judgment is affirmed.
WE CONCUR:
RUSHING, P. J.
PREMO, J.
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