Filed 2/1/00

Appellant Antoine Maurice Brown was convicted by jury of numerous offenses resulting from his violent assault on his girlfriend during a domestic dispute. Brown noticed this appeal after being sentenced to 23 years in state prison as a "second strike" offender under California’s "Three Strikes" law (Pen. Code, § 667, subds. (b)-(i)). In the published portion of this opinion, we consider numerous contentions regarding Evidence Code section 1109, which was enacted in 1996 and allows admission of "evidence of [a] defendant’s commission of other domestic violence" in a criminal action in which the defendant "is accused of an offense involving domestic violence." Specifically, we consider Brown’s contention that the admission of his prior acts of domestic violence under section 1109 deprived him of his constitutional right to a fair trial under the due process clause. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 15.) We also consider Brown’s argument that the court’s instructions regarding this evidence permitted the jury to find him guilty without finding beyond a reasonable doubt that he committed the charged offenses. Finally, we decide whether the trial court should have excluded evidence of his prior acts of domestic violence under section 352, which provides that evidence may not be admitted if its probative value is substantially outweighed by its prejudicial effect.

Shortly after this appeal was fully briefed, our Supreme Court decided People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta). In Falsetta, the court held that propensity evidence may be considered in sex crime cases under section 1108 without violating the due process clause because section 1108’s incorporation of the section 352 balancing test prevents an unfair trial. Furthermore, Falsetta rejected a claim that the instructions given in that case lessened the prosecution’s burden of proving the charged offenses beyond a reasonable doubt. Although the particular statute analyzed in Falsetta, section 1108, governs the admissibility of prior acts of sexual misconduct as distinguished from prior acts of domestic violence, we conclude the proper determination of the section 1109 issues raised by Brown is governed by Falsetta and its rationale.

In the unpublished portion of this opinion, we consider Brown’s claim that the prosecutor and the trial court erred in refusing to grant immunity to a defense witness. Additionally, we consider several claims of instructional error with regard to the offenses of assault with a firearm and assault with a deadly weapon.

We reject all of these arguments and affirm the judgment.

At trial, the chief prosecution witness was the victim of the assault, Lisa Haynes. Haynes testified that at the time of the assault, she had been in an intimate relationship with appellant Brown for about six months. During the course of their relationship, Haynes sometimes spent the night with Brown at a house he shared with Mahlika Chavis, his "cousin or godsister." On March 10, 1998, Haynes spent the night at Brown’s residence. The next day, while she was at work, she received a telephone call from Brown. He accused her of being unfaithful because he had gone through her personal belongings and found a cell phone contract and a receipt dated sometime in December. Haynes recalled Brown said something to the effect, "I found the cellular phone bill contract and a receipt that you bought the next nigger something for Christmas." She refused to speak with him any further by telephone. Angered, she drove from work to Brown’s home during her lunch break to retrieve her belongings. They argued again at the front door. When Haynes went into Brown’s home to retrieve her personal property, Brown produced a weapon with a loaded ammunition clip that looked like an AK-47. Brown made a reference to killing them both, and Haynes turned her back to hide her frightened reaction. As she walked to the bedroom where her possessions were, she heard a clicking noise from the gun behind her. Haynes grabbed a bag belonging to her and tried to leave the bedroom. Brown grabbed her by the hair, causing her to fall on her back. He then struck her two or three times in the face with something heavy and hard, causing her a chipped tooth and a wound above her eyebrow. She started to bleed profusely.

Brown then placed the weapon aside and armed himself with two knives. He held the knives about an inch from Haynes’s face saying, "Now, I’ll have to cut you up and eat you like the guy did to his girlfriend that was on TV." Haynes tried to keep Brown calm. He noticed how badly she was bleeding and began to apologize, saying he loved her and that he was sorry. He cleaned her up and bandaged her eye. She asked him several times if she could leave, but he said no. Finally, after promising not to call the police, Haynes left the house by herself and drove back to her job site. A coworker drove her to the hospital, where she had 15 to 20 stitches to close the wound above her eye.

Haynes reported the incident to the police. Officer Helene Schmitt interviewed Haynes, who reported that her boyfriend had assaulted her with an "AK-47" by striking her in the face with the butt-end of the weapon. Officer Schmitt noticed that Haynes’s right eye was swollen and was turning purple and blue. She appeared to have fresh stitches across her eyebrow.

Police reported to Brown’s home. Brown was there and was immediately arrested. Mahlika Chavis, Brown’s roommate, consented to a search of the house she shared with Brown. The police located 38 live rounds of ammunition in a clip belonging to a weapon that was stashed in a bedroom closet. That weapon was identified at trial as a "Norinco" assault rifle, which is a "copycat" of the AK-47.

At trial, in addition to the above, the prosecution presented the testimony of two women Brown allegedly battered in 1994 and 1996 respectively––Shelissa Smith and Toni Dawkins. Smith testified that during an argument with Brown over telephone contact with her child’s father, Brown had either kicked or hit her in the back, causing her to chip her teeth on a light switch. He then struck and choked her while she lay on the floor. Dawkins testified that during an argument about visitation with their four-year-old son, Brown had grabbed her, causing both of them to fall over a porch railing and land on a brick paved area. She testified that Brown then choked her and struck her head on the pavement.

In Brown’s defense, the jury was read Mahlika Chavis’s testimony from the pretrial suppression hearing. The jury was told she was unavailable to testify at trial. During Chavis’s testimony, she indicated she shared a house with Brown and described their relationship as "really long-time friends, close family." Around noon on March 11, 1998, she was at home and heard a lot of noise downstairs. She saw Brown and Haynes in the kitchen. Haynes was "basically going off, enraged, yelling and screaming and jumping." Once Chavis walked into the room, the argument ceased. Brown then placed some of Haynes’s belongings on the floor in front of Haynes, and then walked out. Neither Haynes nor Brown was cut or hurt in any way. She left the house in time to get to work by 4 p.m.

In closing, defense counsel attempted to capitalize on the fact that Haynes had been charged with one felony count of welfare fraud and two felony counts of perjury stemming from events unrelated to this incident. Defense counsel argued: "What’s being offered to you is uncorroborated testimony of an accused perjurer who was angry at her boyfriend, and based on that uncorroborated evidence nobody else substantiates what she says." He urged the jury to keep in mind these points: "uncorroborated testimony, no lab work, nothing to protect Mr. Brown, and the testimony of Miss Chavis."

After the jury returned its guilty verdicts, the prosecution presented proof that Brown had suffered a prior felony conviction, a 1994 conviction in Contra Costa County for assault with force likely to produce great bodily injury and personal infliction of great bodily injury. After Brown’s prior felony conviction was found true by the jury, it was used to bring him within the "Three Strikes" sentencing scheme. (Pen. Code, § 667, subd. (e)(1); see also Pen. Code § 1170.12, subd. (c)(1).) Brown was sentenced to a total unstayed prison term of 23 years as a "second strike" offender. The sentence was computed as follows: Brown received the aggravated term of four years for the assault with a firearm conviction (Pen. Code, § 245, subd. (a)(2)), doubled to eight years under the Three Strikes law (Pen. Code, § 667, subd.  (e)(1)). He also received a consecutive ten-year term for the personal use with a firearm finding (Pen. Code, §§ 12022.5; 1203.06), and a consecutive five-year enhancement for the prior conviction. This appeal followed.

Over Brown’s objection, evidence of his violence toward two other girlfriends, predating the charged offense against Haynes, was admitted into evidence pursuant to section 1109, which allows admission of evidence of prior acts of domestic violence to prove propensity. The jury was instructed that if it found Brown had committed the prior, uncharged offenses, it could infer that Brown had a "disposition to commit offenses involving domestic violence." (CALJIC No. 2.50.02.) Furthermore, if such a predisposition was found, then the jury was allowed to infer that Brown "was likely to commit and did commit the crimes" with which he was currently charged. (Ibid.) Additionally, the jury was instructed that the prosecution only had to prove the uncharged offenses by a preponderance of the evidence. (CALJIC No. 2.50.1.)

Brown contests the constitutionality of both Evidence Code section 1109 and the jury instructions given in this case. Specifically, he contends that section 1109 violates due process. He argues: "The evidence of prior uncharged acts permitted the jury to find appellant guilty on the basis of a supposed propensity to commit such acts, and the due process clause does not permit criminal defendants to be convicted on the basis of propensity evidence." Brown also claims the trial court failed to instruct the jury properly regarding its consideration of uncharged acts of domestic violence allegedly committed by Brown. He argues "that CALJIC No. 2.50.1, in combination with CALJIC No. 2.50.02, reduced the prosecution’s burden of proof to a standard below that which due process permits."

Brown’s arguments have been eclipsed by our Supreme Court’s recent decision in People v. Falsetta, supra, 21 Cal.4th 903, which has been the subject of supplemental briefing. Falsetta upheld the constitutionality of section 1108, a provision which mirrors section 1109 except that it permits the admission of a defendant’s past sex crimes for the purpose of showing a propensity to commit offenses of the same type.

In rejecting the argument that section 1108 offends due process, the Falsetta court relied on reasoning articulated in People v. Fitch (1997) 55 Cal.App.4th 172, 178-185. The Falsetta court reasoned, "As stated in Fitch, ‘[S]ection 1108 has a safeguard against the use of uncharged sex offenses in cases where the admission of such evidence could result in a fundamentally unfair trial. Such evidence is still subject to exclusion under . . . section 352. . . . By subjecting evidence of uncharged sexual misconduct to the weighing process of section 352, the Legislature has ensured that such evidence cannot be used in cases where its probative value is substantially outweighed by the possibility that it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. . . . This determination is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.] With this check upon the admission of evidence of uncharged sex offenses in prosecutions for sex crimes, we find that . . . section 1108 does not violate the due process clause.’ [Citation.]" (21 Cal.4th at pp. 917-918, original italics.)

Brown argues that the principles underlying the Falsetta opinion, "a case which dealt solely with sexual offense evidence," are "obviously inapplicable in a domestic violence case." To the contrary, we find the reasoning underlying the Falsetta opinion applies to this case because sections 1108 and 1109 can properly be read together as complementary portions of the same statutory scheme. A bill analysis prepared for those who voted to enact section 1109, states that "[t]his section is modeled on the recently enacted Evidence Code 1108, which accomplishes the same for evidence of other sexual offenses, in sexual offense prosecutions." (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1876 (1995-1996 Reg. Sess.) (June 25, 1996) at p. 3.) The analysis goes on to indicate, "Proponents argue that in domestic violence cases, as in sexual offense cases, special evidentiary rules are justified because of the distinctive issues and difficulties of proof in this area. Specifically, evidence of other acts is important in domestic violence cases because of the typically repetitive nature of domestic violence crimes, and because of the acute difficulties of proof associated with frequently uncooperative victims and third-party witnesses who are often children or neighbors who may fear retaliation from the abuser and do not wish to become involved." (Id. at p. 4.)

"[I]t is reasonable to infer that those who actually voted on the proposed measure read and considered the materials presented in explanation of it, and that the materials therefore provide some indication of how the measure was understood at the time by those who voted to enact it." (Hutnick v. United States Fidelity & Guaranty Co. (1988) 47 Cal.3d 456, 465, fn. 7.) Consequently, we can rely on the inference that, by enacting sections 1108 and 1109, the obvious intention of the Legislature was to provide a mechanism for allowing evidence of past sexual offenses or acts of domestic violence to be used by a jury to prove that the defendant committed the charged offense of the same type; recidivist conduct the Legislature has determined is probative because of its repetitive nature. Furthermore, it is apparent that the Legislature considered the difficulties of proof unique to the prosecution of these crimes when compared with other crimes where propensity evidence may be probative but has been historically prohibited.

Both sections 1108 and 1109 require "pretrial notice of the offenses sought to be proved, assuring that the defendant will not be surprised or unprepared to rebut the proposed evidence." (Falsetta, supra, 21 Cal.4th at p. 916, original italics; see §§ 1108, subd. (b); 1109, subd. (b).) Furthermore, both sections 1108 and 1109 limit the admissibility of evidence of prior misconduct if its probative value is substantially outweighed by its prejudicial effect. (§§ 352; 1108, subd. (a); 1109, subd. (a).) The specific retention of the power to exclude evidence under section 352, found in both sections 1108 and 1109, provides "a realistic safeguard that ensures that the presumption of innocence and other characteristics of due process are not weakened by an unfair use of evidence of past acts." (People v. Harris (1998) 60 Cal.App.4th 727, 730.) Accordingly, we hold that Falsetta’s pronouncement that "the trial court’s discretion to exclude propensity evidence under section 352 saves section 1108 from [a] defendant’s due process challenge" is fully applicable to section 1109 as well. (Falsetta, supra, 21 Cal.4th at p. 917.)

Brown also contends that the trial court’s instructions were confusing and allowed the jury to convict him of the current offense based on a prior offense of domestic violence proved by a preponderance of the evidence. With respect to the evidence of Brown’s alleged prior acts of domestic violence, the challenged instructions state in pertinent part: "Evidence has been introduced for the purpose of showing that the defendant engaged in an offense involving domestic violence on one or more occasions other than that charged in the case." The instructions go on to state: "If you find that the defendant committed a prior offense involving domestic violence, you may infer that the defendant had a disposition to commit offenses involving domestic violence. If you find that the defendant had this disposition, you may also infer that he was likely to commit and did commit the crimes charged against him. However, evidence that the defendant committed prior offenses involving domestic violence is not sufficient by itself to prove that he committed the charged offenses. The weight and significance of the evidence, if any, are for you to decide. [¶] Within the meaning of the preceding instruction, the prosecution has the burden of proving by a preponderance of the evidence that a defendant committed an offense involving domestic violence other than those for which he is on trial. [¶] You must not consider this evidence for any purpose unless you find by a preponderance of the evidence that a defendant committed the other offense involving domestic violence."

Brown contends these instructions violated his right to due process because they allowed the jury to find his alleged prior acts of domestic violence to be true by a preponderance of the evidence, and allowed the jury to infer from that finding that he committed the charged offenses. Thus, according to Brown, the jury could have found him guilty under a standard that was less than beyond a reasonable doubt.

Brown must establish a reasonable likelihood that the jury misunderstood the instructions as a whole. (People v. Cain (1995) 10 Cal.4th 1, 36.) Contrary to Brown’s argument, the instructions given in this case did not allow the jury to infer that he committed the charged crime solely from proof that he committed the prior acts of domestic violence. To the contrary, the instructions expressly provided that "evidence that the defendant committed prior offenses involving domestic violence is not sufficient by itself to prove that he committed the charged offenses." This language essentially tracks the 1999 revised version of CALJIC No. 2.50.02, which Falsetta indicated "adequately sets forth the controlling principles" for the jury’s use of other crimes evidence. (Falsetta, supra, 21 Cal.4th at p. 924.) The Falsetta court specifically noted that an admonishment "not to convict defendant solely in reliance on the evidence that he committed prior sex offenses," will help "assure that the defendant will be tried and convicted for his present, not his past, offenses." (Id. at p. 923.)

Moreover, a review of the record reveals a consistent message from the instructions as a whole and from the closing arguments—that is, the jury must find Brown guilty beyond a reasonable doubt before it could convict him of any of the charged offenses. The proper reasonable doubt standard was emphasized many times in the instructions and arguments. Neither counsel even hinted that guilt might be based on proof by a preponderance of the evidence. Accordingly, on the instant record, no reasonable likelihood exists that the jury believed it could convict appellant on a lower standard. (See Falsetta, supra, 21 Cal.4th at pp. 924-925 [applying People v. Watson (1956) 46 Cal.2d 818, 836 standard to instructional error on jury’s use of uncharged crimes].)

We realize this conclusion is contrary to that reached by the Second District in People v. Vichroy (1999) 76 Cal.App.4th 92, petition for review filed December 14, 1999 (Vichroy). Vichroy examined a modified version of CALJIC No. 2.50.01, which contained the admonition, "You may not convict [a defendant] merely because you believe he committed another offense . . . . The question before you is whether the defendant is guilty of the crime charged in this case, not whether he is guilty of any other offense. You may return a verdict of guilty only if you are convinced beyond a reasonable doubt that he committed the offense charged against him in this case." (76 Cal.App.4th at p. 100, fn. 5.) The court held this did not clear up the confusion engendered by giving No. 2.50.01, and "[b]ecause we cannot assume the jury followed the constitutionally correct conflicting instruction, the judgment must be reversed." (Vichroy, supra, at p. 101.) Although Vichroy was decided after our Supreme Court’s opinion in Falsetta, it does not analyze the claimed error in the jury instructions in light of the guidance provided by that case. In addition to the quotes already cited, we note, in Falsetta, the Supreme Court expressed the further view that the instruction given in this case guiding the jury’s consideration of Brown’s other acts of domestic violence "contains language appropriate for cases involving the admission of disposition evidence." (Falsetta, supra, 21 Cal.4th at p. 922.). We are aware the Supreme Court tempered its endorsement of the 1999 revised version of CALJIC No. 2.50.02, by indicating the issue was not squarely presented in the case it was reviewing. (Falsetta, supra, at p. 924.) However, even dictum from our Supreme Court is considered "highly persuasive." (See, e.g., People v. Wade (1996) 48 Cal.App.4th 460, 467; People v. Aguilar (1997) 58 Cal.App.4th 1196, 1209.) We believe it is improbable that the California Supreme Court would suggest an instruction "adequately sets forth the controlling principles" for considering other crimes evidence, and then find that same instruction to be constitutionally defective. (Falsetta, supra, 21 Cal.4th at p. 924.)

As a separate claim of error in the instructions on the use of prior acts of domestic violence, Brown notes that while the admission of prior acts of domestic violence as propensity evidence "may be logical" when the charged offense is for a similar act of domestic violence, "[t]he incidents of uncharged domestic violence introduced against him simply have no logical relevance to the firearm or weapon possession charges . . . . However, the jurors were plainly told that they could infer from that evidence that he did in fact commit all five of the charged offenses." Thus, he claims, "due process requires that the court explain to the jury specifically which crimes the prior incidents may be used to inferentially establish."

In the absence of a request, the court had no sua sponte duty to give such a limiting instruction. (See § 355.) The record reflects Brown did not request one. In any event, as noted, the court instructed the jurors that if they found Brown committed a prior act of domestic violence, "you may infer that [Brown] had a disposition to commit offenses involving domestic violence." By its own terms, the instruction was not applicable to the charged weapons offenses. Moreover, the prosecutor discussed the prior acts of domestic violence only in the portion of his argument regarding Brown’s assault on Lisa Haynes. These circumstances convince us there was little risk the jury might have been confused. Therefore, we do not find a reasonable probability the jury would have returned a more favorable verdict on the weapons charges had a limiting instruction been given.

Brown next contends that, even if admitting evidence of other acts of domestic violence under section 1109 comports with his constitutional right to due process of law, and even if the jury was properly instructed regarding its consideration of this evidence, the evidence still should have been excluded pursuant to section 352. As already noted, section 1109 expressly permits a trial court to exclude evidence of other crimes under section 352. That provision gives the court discretion to "exclude evidence if its probative value is substantially outweighed by the probability 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." (§ 352.) "Under . . . section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) A trial court’s exercise of its discretion under section 352 " ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’ [Citations.]" (People v. Rodrigues, supra, at p. 1124.) Brown argues: "Although the incidents introduced into evidence were not particularly remote in time, nor was the evidence particularly time-consuming when compared to the rest of the trial, the evidence had little probative value. . . . [T]he prior incidents merely showed that appellant had previously battered women with whom he was living or had been romantically involved."

To our knowledge, there is only one published case reviewing a trial court’s exercise of its section 352 discretion in deciding whether to admit evidence offered under section 1109. In People v. Poplar (1999) 70 Cal.App.4th 1129, the court found no abuse of discretion in admitting evidence of the defendant’s prior acts of domestic violence in a prosecution for forcible rape of his live-in girlfriend. In each prior incident of domestic violence, there had been a family-type relationship, a breakup, and then the defendant threatened the victim through phone calls or urging the victim to change her story. On appeal, the defendant challenged the admission of this evidence of past offenses on the grounds that such evidence was highly inflammatory and lacked probative value because they were factually dissimilar to the charged offense. The appellate court rejected these arguments, finding defendant’s attempt to subject the admission of this evidence to the exacting standards governing admission of evidence under section 1101, subdivision (b), to be inappropriate because the evidence was independently admissible pursuant to section 1109. The court noted the testimony of the other victims was no more inflammatory than that of the girlfriend describing the rape. Furthermore, there was no probability of confusing the jury with testimony regarding other incidents, which were relatively recent, and the evidence was extremely probative and was not of the sort to evoke an emotional bias against defendant. (70 Cal.App.4th at p. 1139.)

The decision in Poplar endorses the balancing determination under section 352 made by the trial court in this case. Before admitting the evidence of the assaults on other victims, the trial judge held a hearing during which he considered the parties’ written motions. The trial judge gave a lengthy explanation of his reasons for admitting the testimony. Given the care with which the judge treated the evidence, we see no abuse of discretion in the trial judge’s conclusion that the probative value of the evidence was not substantially outweighed by the danger of undue prejudice. The evidence of past offenses was not inflammatory, and there was no risk of confusion because the prior acts of domestic violence were less serious than the charged act. Furthermore, as Brown concedes, the prior acts were not remote nor did evidence about these acts consume much time at trial. The past acts were determined by section 1109 to be highly probative. Accordingly, admission of the evidence of the prior acts of domestic violence was not an abuse of discretion.

Brown contends "that the refusal of the prosecutor and the trial court to grant immunity to defense witness Mahlika Chavis deprived appellant of due process of law." The first mention of Brown’s roommate, Mahlika Chavis, testifying for the defense came as the court was preparing for voir dire of the prospective jurors. The prosecutor stated that she had been contacted by Chavis’s attorney, who reported Chavis was prepared to "talk about having battered the victim presumably on the date [in question]." However, Chavis denied "that she inflicted a great bodily injury on the victim" nor did she "claim any responsibility for the large cut over the victim’s eye."

At a subsequent hearing attended by Chavis and her counsel, it was established that unless she was granted immunity from prosecution, Chavis would invoke her Fifth Amendment right against self-incrimination if called to testify. After both the prosecutor and the trial court indicated they would not confer immunity on Chavis, she was declared to be unavailable as a witness and the jury was read a transcript of her testimony from a pretrial suppression hearing. (Pen. Code, § 1538.5.) Chavis’s pretrial testimony focused on the search of Brown’s residence, which uncovered the assault rifle, but contained nothing to indicate that she was involved in the assault on Haynes. Brown argues, "had Chavis been granted immunity and testified that she assaulted and battered Haynes on the same day appellant was accused of doing so, it is at least reasonably probable that the jury would have acquitted."

The law does not support Brown’s position. Our Supreme Court has consistently held, "there is no authority in this state for the proposition that a prosecutor must request or the trial court must grant immunity to a witness on the ground that the witness’s testimony could be favorable to the defense." (People v. Cudjo (1993) 6 Cal.4th 585, 619; In re Williams (1994) 7 Cal.4th 572, 609; People v. Cooke (1993) 16 Cal.App.4th 1361, 1371.) Recently, our Supreme Court in People v. Lucas (1995) 12 Cal.4th 415, summarily dismissed the proposition that the refusal to grant immunity to a defense witness constitutes prosecutorial misconduct. The court simply stated: "[T]he defendant has no power to force the prosecution to grant immunity to defense witnesses." (Id. at p. 459.)

Even assuming that in appropriate circumstances judicially conferred immunity is necessary, such immunity would be required only if the witness’s testimony was clearly exculpatory, essential to an effective defense, and no strong governmental interest weighed against the grant of immunity. (People v. Cudjo, supra, 6 Cal.4th at p. 619.) " ‘. . . [T]he defendant must make a convincing showing sufficient to satisfy the court that the testimony which will be forthcoming is both clearly exculpatory and essential to the defendant’s case. Immunity will be denied if the proffered testimony is found to be ambiguous, not clearly exculpatory, cumulative or it is found to relate only to the credibility of the government’s witnesses.’ " (People v. Hunter (1989) 49 Cal.3d 957, 974.) As in People v. Lucas, supra, 12 Cal.4th at page 460, Brown has "failed to meet the stringent offer of proof requirements . . . even assuming arguendo the doubtful proposition that the trial court has inherent authority to grant immunity." (See also In re Williams, supra, 7 Cal.4th at p. 610.) Nothing in this record properly shows, beyond surmise, what Chavis would have said if granted immunity. Furthermore, the little that was revealed about Chavis’s proposed testimony shows it would have done nothing to exculpate Brown of the charged offenses. According to the prosecutor, Chavis did not claim responsibility for the gash over Haynes’s right eye, which required 15-20 stitches to close. Thus, there is no showing that Chavis’s proposed testimony would have directly contradicted the prosecution’s evidence that it was Brown who caused Chavis’s injuries. Brown’s failure to make an offer of proof or other proper record of Chavis’s testimony defeats his claim of error.

We also find inapposite the federal authority relied upon by Brown which recognizes a limited power for the court to grant judicial immunity where a refusal to testify is caused by prosecutorial misconduct. (See, e.g., U.S. v. Young (9th Cir. 1996) 86 F.3d 944, 947 [to compel a grant of immunity to a witness the defendant must show that the witness’s testimony is relevant and the government distorted the judicial factfinding process by denying immunity];U.S. v. Westerdahl (9th Cir. 1991) 945 F.2d 1083; U.S. v. Lord (9th Cir. 1983) 711 F.2d 887.) There is no evidence on this record that Chavis’s refusal to testify was induced by prosecutorial misconduct, nor is there any evidence of disparate use of the power to grant immunity in order to distort the factfinding process, such as granting immunity to prosecution witnesses but not to Chavis. (See, e.g., U.S. v. Westerdahl, supra, at p. 1087.)

Finally, in considering the motives of the prosecutor in this case in refusing to grant Chavis immunity, we address what Brown considers to be "the central factual question in the case." Brown questions "whether there was a legitimate reason for the prosecutor’s denial of immunity in this case." In People v. Cooke, supra, 16 Cal.App.4th 1361, the court pointed out a legitimate reason for a prosecutor’s refusal to grant immunity––the availability of such immunity could encourage perjury by a defendant’s friends or accomplices. (Id. at pp. 1370-1371.) We consider this concern to be a legitimate one. The truth-seeking function of a trial would be dealt a grave blow if witnesses cloaked with immunity were permitted to absolve defendants of guilt by assuming it themselves with impunity. As a federal court has written, "A person suspected of crime should not be empowered to give his confederates an immunity bath." (In re Kilgo (4th Cir. 1973) 484 F.2d 1215, 1222.)

For the foregoing reasons, due process did not require the prosecutor or the court to grant Chavis immunity in order to secure her testimony.

Brown also argues that the trial court "misinstructed the jury with respect to the intent required for the offenses of assault with a firearm and assault with a deadly weapon" The assault instruction was in the language of CALJIC No. 9.00, defining assault as the willful commission of "an act which by its nature would probably and directly result in the application of physical force on another person." Brown complains the defect in the instruction lies in its failure to adequately convey to the jury "that the crime of assault requires an intent to actually inflict physical force upon another" Thus, the trial court erred, he maintains, by failing to augment the standard assault instruction sua sponte with a reference to the requirement of an actual intent to inflict force on the victim. The result, claims Brown, was to dilute the intent requirement of assault, thereby removing from the jury’s consideration an essential element of the offense.

In People v. Colantuono (1994) 206 (Colantuono), our Supreme Court analyzed the mental state necessary to convict a defendant of assault in order to " ‘hopefully eliminate the confusion on this issue which has developed throughout the courts of this state.’ " (Id. at p. 210, quoting People v. Rocha (1971) 3 Cal.3d 893, 896.) The court reiterated that assault is a general intent crime, and elaborated on that concept as follows: "The mens rea is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery. Although the defendant must intentionally engage in conduct that will likely produce injurious consequences, the prosecution need not prove a specific intent to inflict a particular harm. [Citation.] The evidence must only demonstrate that the defendant willfully or purposefully attempted a ‘violent injury’ or ‘the least touching,’ i.e., ‘any wrongful act committed by means of physical force against the person of another.’ [Citations.] In other words, ‘[t]he use of the described force is what counts, not the intent with which same is employed.’ [Citation.] Because the offensive or dangerous character of the defendant’s conduct, by virtue of its nature, contemplates such injury, a general criminal intent to commit the act suffices to establish the requisite mental state. [Citation.]" (Colantuono, supra, 7 Cal.4th at pp. 214-215.)

As Colantuono made clear, "the question of intent for assault is determined by the character of the defendant’s willful conduct considered in conjunction with its direct and probable consequences. If one commits an act that by its nature will likely result in physical force on another, the particular intention of committing a battery is thereby subsumed. Since the law seeks to prevent such harm irrespective of any actual purpose to cause it, a general criminal intent or willingness to commit the act satisfies the mens rea requirement for assault." (7 Cal.4th at p. 217.) As Colantuono commented on a related point: " ‘One could not very well "attempt" or try to "commit" an injury on the person of another if he had no intent to cause any injury to such other person’ is technically accurate. [Citation.] The problem with this language, however, is that it tends to implicate a goal-oriented or specific intent state of mind. [Citation.] This implication is misleading because for assault, as with any general intent crime, the nature of the defendant’s present willful conduct alone suffices to establish the necessary mental state without inquiry as to an intent to cause further consequences. [Citations.]’ " (7 Cal.4th at pp. 217-218, fn. omitted, original italics.) The 1994 version of CALJIC No. 9.00 given to the jury in this case incorporated the concepts and terminology used by our Supreme Court in Colantuono. Thus, on its face, it properly established the intent required for assault.

Instead, Brown relies on People v. Smith (1997) 57 Cal.App.4th 1470 (Smith) in support of his claim. In Smith, the charge of assault upon a peace officer with an automobile arose from an incident in which police officers were attempting to control a rambunctious crowd of New Year’s Eve revelers. The defendant’s car—which was stopped in front of the line of officers—accelerated forward, bumping the leg and running over the toe of one of the officers. (Id. at p. 1474.) The defendant testified that he inadvertently struck the officer when he started to move the car forward after other officers motioned him on. (Id. at pp. 1474-1475.)

The jury in Smith was instructed with a modified version of former CALJIC No. 9.00 (5th ed. 1988) that assault is "an unlawful attempt to apply physical force upon the person of another, with the present ability to do so," and requires only "general criminal intent," which means " ‘the person making the attempt . . . intended to commit an act, the direct, natural and probable consequences of which if successfully completed would be the application of physical force upon the person of another.’ " (57 Cal.App.4th at p. 1477, fn. omitted.) During deliberations, the jury inquired whether the intent to move the vehicle forward could, alone, constitute general criminal intent, or whether an "intent to injure" was required. (Id. at pp. 1473, 1477.) Rather than reread former CALJIC No. 9.00 in full, the trial court gave an abbreviated instruction that the defendant must have " ‘intend[ed] to commit an act, the natural and probable consequence of which if successfully completed would be the application of physical force upon the person of another . . . .’ " (Smith, supra, at pp. 1473-1474, fn. omitted.) This abbreviated instruction, the Smith court observed, is essentially the same as the current version of CALJIC No. 9.00. (Smith, supra, at p. 1474, fn. 2.) The Smith court held it was reversible error to give the jury the abbreviated form of the instruction because, under it, the jury could find the act of moving the car forward was "culpable solely by reason of the natural and probable consequences of the act, regardless [of] whether the defendant intended a battery." (Id. at p. 1479.) This, the court held, would be tantamount to a finding of guilt based only on criminal negligence. (Id. at pp. 1479-1480.) What was required, instead, was an instruction that the jury must find an "intent to commit a battery, . . . the foreseeable consequence . . . of which is the infliction of great bodily injury upon the subject of the assault." (Id. at p. 1484.)

Brown’s reliance on Smith is misplaced. Although we need not discuss the issue at any length, it could be argued that Smith is inconsistent with Colantuono. The requirement of actual intent of harm or, in the alternative, the substantial certainty that harm will result from an intentional act, seems in conflict with this passage from Colantuono: "If one commits an act that by its nature will likely result in physical force on another, the particular intention of committing a battery is thereby subsumed. Since the law seeks to prevent such harm irrespective of any actual purpose to cause it, a general criminal intent or willingness to commit the act satisfies the mens rea requirement for assault." (Colantuono, supra, 7 Cal.4th at p. 217.) A panel of the Court of Appeal cannot overrule Colantuono, and so, to the extent the holding of Smith conflicts with the rules announced by our Supreme Court in Colantuono, we cannot follow the lower court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Furthermore, as our Supreme Court has clearly admonished, trial courts should not amplify or modify standard jury instructions "unless compelled by the peculiar facts of the case." (Colantuono, supra, 7 Cal.4th at p. 222.) While the facts of Smith may have been sufficiently "peculiar" as to require some modification of the language of CALJIC No. 9.00, the facts of the present case are not. The instant case was not tried by the defense on the simple theory that Brown was merely negligent in assaulting Haynes with the gun and the knives. In this case, once Brown’s identity as the assailant was established beyond a reasonable doubt, there was overwhelming evidence that Brown either intended to harm Haynes, or that harm was substantially certain to follow from Brown’s intentional, violent acts. No refinement of CALJIC No. 9.00 would have changed the jury’s verdict. Thus, any error could not have contributed to the verdict and would be harmless beyond a reasonable doubt. (See People v. Flood (1998) 18 Cal.4th 470, 502-503, 507; Chapman v. California (1967) 386 U.S. 18, 24.)

Next, Brown contends his conviction for assault with a firearm must be reversed because the trial court erred in failing to instruct the jury sua sponte that it must unanimously agree upon the act on which it relied in finding him guilty.

The instruction in question, CALJIC No. 17.01, applies to situations in which the prosecution introduces evidence tending to prove that a defendant has committed more than one act upon which the jury could base a conviction. The instruction charges the jury that, in order to return a verdict of guilty, all jurors must agree the defendant committed the same act or acts. A trial court must give this instruction sua sponte where it is applicable. (People v. Hefner (1981) 127 Cal.App.3d 88, 96-97.) On the other hand, "[t]he unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction." (People v. Stankewitz (1990) 51 Cal.3d 72, 100.) Even assuming a defendant, by and through the argument of counsel to the jury, suggests differing defenses to each of the alleged acts, still it must be determined whether there is any "reasonable basis" for the jury to distinguish between them in determining whether the "continuous conduct" rule applies. (Ibid.; accord, People v. Champion (1995) 9 Cal.4th 879, 932.)

In this case, Brown was charged with assault with a firearm under Penal Code section 245, subdivision (a)(2). He argues the prosecution’s evidence and argument at trial showed two separate acts on which the jury could have based their verdict. These were: (1) Brown’s actions in "dry-firing" the assault rifle at Haynes; and (2) his actions in hitting her in the face with the butt of the rifle. Assuming these various acts could independently support two charges of assault with a firearm, no unanimity instruction was required under the facts of this case because all of Brown’s activities occurred within a relatively brief period of time during which he was engaged in a continuous course of conduct. (People v. Diedrich (1982) 31 Cal.3d 263, 282; People v. Durkin (1988) 205 Cal.App.3d Supp. 9, 13.) The evidence does not indicate that Brown harbored multiple objectives and engaged in multiple acts to achieve them. Brown’s conduct manifests a single course of conduct––to brutalize Haynes for her perceived wrongdoings, which continued uninterrupted while she was being held captive and was not complete until he allowed her to leave. The claimed error was, therefore, clearly harmless on these facts. (See People v. Crandell (1988) 46 Cal.3d 833, 875; People v. Deletto (1983) 147 Cal.App.3d 458, 470-473.)

The judgment is affirmed.

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Ruvolo, J.

We concur:

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Kline, P.J.

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Haerle, J.

Trial Court: Alameda County Superior Court

Trial Judge: Hon. Jeffrey Horner

Counsel for Appellant: Wesley A. Van Winkle

Counsel for Respondent: Bill Lockyer

Attorney General

David P. Druliner

Chief Assistant Attorney General

Ronald A. Bass

Senior Assistant Attorney General

Catherine A. Rivlin

Supervising Deputy Attorney General

Michael E. Banister

Deputy Attorney General