Is there any merit to a claim that trial counsel was ineffective for failing to request a jury instruction on the defense of accident?

Nor is there any merit to appellant's claim that trial counsel was ineffective for failing to request a jury instruction on the defense of accident. A court may refuse an instruction offered by the defendant if it is not supported by substantial evidence. (People v. Hovarter (2008) 44 Cal.4th 983, 1021.)

Appellant contends that trial counsel argued the affirmative defense of accident but it is "axiomatic that argument is not evidence." (People v. Breaux (1991) 1 Cal.4th 281, 313.) Contrary to appellant's contention, the defense was not "a most viable one" and the recorded statement did not "set forth how he accidentally caused the burns to [J.P.]." A trial court has a duty to instruct on all general principles of law that are closely

Page 12

and openly connected to the facts and that are necessary for the jury's understanding of the case. But the substantial evidence in this case (including the transcript of the recorded statement) reflected that appellant held J.P.'s hands under hot water. We are also satisfied that the failure to give the accident instruction did not contribute to the verdict. (Chapman v. California (1967) 386 U.S. 18, 24.)

The judgment is affirmed.