Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08SF0434, James Patrick Marion, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury convicted defendant Brian Scott Ensley of aggravated assault (Pen. Code, § 245, subd. (a)(1); all statutory references are to the Penal Code unless otherwise noted) and found to be true the allegation he inflicted great bodily injury (§ 12022.7). Ensley contends the trial court prejudicially erred by failing to define “mutual combat” as used in CALCRIM No. 3471, which limits the right to self-defense in some circumstances. For the reasons expressed below, we reverse the judgment.
I
Factual and Procedural Background
On the early morning of May 10, 2008, Ensley, Dustin King, James Southwell, and others, congregated on the patio deck of Nicholas Capellino’s upstairs apartment, socializing and drinking beer. According to King, Ensley called Capellino a “little bitch” in a joking manner. Capellino took offense, and Ensley stood up and pushed Capellino. Capellino pushed back. Ensley threw a punch, which led to an exchange of blows. Others in the gathering intervened to break up the fight, although Capellino told Ensley to leave, the men soon began fighting and wrestling again. The fight culminated with Capellino straddling Ensley on the ground, punching him with both hands, until Capellino knocked Ensley unconscious.
The others pulled Capellino off Ensley, escorted him inside the apartment, and locked the door. Ensley remained outside on the deck until he regained consciousness, and then departed down the exterior staircase. King left Capellino’s apartment, and descended the stairway to his girlfriend’s apartment. He spotted Ensley standing on the sidewalk across the street, staring at Capellino’s apartment.
About 15 minutes later, King heard a loud noise upstairs. He ascended to Capellino’s apartment and saw Capellino lying on Ensley on the patio couch, with blood everywhere. Capellino held down Ensley’s shoulders to subdue him. James Southwell, one of Capellino’s guests, held a knife in his hand.
Capellino testified he had been friends with Ensley for about three years and they worked together at a restaurant Capellino managed. According to Capellino, Ensley seemed slightly drunk at the party and began acting “a little hostile towards some of” the guests. Ensley bragged about his martial arts prowess. Capellino “told him that nobody here is going to fight, and he need[ed] to be quiet and leave everybody alone.” Ensley said “‘Yeah, I bet I could take you on, Cap.’” Capellino said “‘let’s go then, ’” stood, and kicked a chair out from under Ensley. Capellino described two altercations separated by about 10 minutes. The first ended when friends dragged Capellino inside the apartment, and Capellino told Ensley to leave. The second fight ended when Capellino knocked Ensley unconscious.
After Ensley left, Capellino walked out to the patio to smoke a cigarette. Ensley returned and flung the patio gate open. He walked up, pointed his right hand at Capellino, and accused Capellino of being “a bad friend.” Ensley held a closed knife. Capellino recognized the knife as one Ensley brought to work almost every day. Ensley announced he was going into the apartment to get his wallet. Capellino responded he would retrieve the wallet because Ensley was not allowed in the apartment.
Ensley walked past him to enter the apartment, but Capellino grabbed his shoulder and pulled him away. While wrestling with Ensley, Capellino heard the knife click open. Ensley lunged at him, and Capellino put his hand up to defend himself. He noticed blood running down his arm. They fell on the patio couch and Ensley stabbed him twice in the stomach. He grabbed Ensley’s wrists, got on top of him and yelled for help.
Southwell pried the knife from Ensley’s fingers. Capellino hit Ensley six or seven times in the face until Ensley went limp. Capellino suffered serious injuries, including a defensive wound on his hand, a lacerated bicep, and two stab wounds to his torso, which perforated his colon, causing peritonitis. He spent over two months in the hospital, most of the time in the surgical intensive care unit.
According to Southwell, Capellino and Ensley were “talking about... their ability to fight or who was toughest.” Several of the guests separated Capellino and Ensley after they brawled, and Ensley was told to leave. After he departed, Capellino said “he had kicked [Ensley’s] ass....” Southwell went to a bedroom to sleep, but about 15 minutes later, he heard Capellino scream. He ran out and found Capellino on top of Ensley, “holding Ensley’s arm... with a knife in... Ensley’s hand.” After Southwell pried the knife out of his hand, Ensley said, “‘why are you doing this, J.C.?’”
Ensley testified he did not challenge anyone to fight at Capellino’s gathering. Ensley explained he purchased his knife at a military store about a month and half before the incident, and used it at work for cleaning and cutting open bags of flour. At the party, he and Capellino were talking about “camping and being scared of animals, ” and Ensley jokingly said something like “‘Don’t be such a little bitch, dude.’” Capellino reacted angrily and pushed Ensley, who fell to the ground. A wrestling match ensued. Ensley realized Capellino was upset, and asked Capellino to calm down. Capellino ordered him to leave.
Ensley began to walk down the stairs when someone grabbed his shoulder, causing him to lose his balance and fall on his back. Capellino pinned him to the ground and repeatedly punched him in the face. Ensley attempted to fend off the blows with his left hand. Ensley and a female guest implored Capellino to stop the beating. He briefly stopped, but then responded, “‘No, he said something disrespectful at my house.’” Capellino grabbed Ensley by the hair and slammed his head on the concrete four or five times. Ensley lost consciousness.
When Ensley awoke, he walked down the stairs and crossed the street, groggy and disoriented. He realized he did not have his wallet, phone and MP3 player, and assumed they had fallen out of his pocket during the fight. His wallet contained two paychecks and a $100 bill, and he needed the money that day for a down payment on a new apartment.
After about five minutes, he decided to return to Capellino’s apartment, thinking people had gone to bed and he could “get up there and get my wallet and get out of there.” No one was on the balcony as he climbed the stairs. It was dark, but Ensley spotted what he thought was his wallet or music player on the ground. He still had his knife in his right front pocket.
As he bent down to retrieve the item, Capellino opened the screen door and said, “‘What are you still doing here?’” He struck Ensley in the face, and Ensley fell back. Capellino jumped on top of him, and began punching him. Ensley could not “see out of [his] right eye and it was really dark and [he] was getting scared” Capellino might kill or seriously hurt him. He remembered the knife, retrieved it from his pocket, opened it with one hand, and stabbed at Capellino, who continued to beat him.
Ensley lost consciousness, and awoke in the hospital. He suffered numerous cuts and scrapes and required stitches for his face. He felt matted blood and cuts on the back of his head. He denied returning to the apartment intending to kill or hurt Capellino.
A deputy sheriff responding to the scene testified Ensley appeared to be unconscious when he arrived. The deputy found a wallet and a pair of black gloves in Ensley’s front pocket. In describing the incident, Ensley spoke to the deputy briefly at the scene, and later at the hospital. Ensley did not claim Capellino had slammed Ensley’s head on the ground. Ensley also stated he was halfway down the stairs when he decided to return for his wallet, but failed to mention walking across the street or waiting for several minutes. Ensley’s injuries appeared to be consistent with his account of the altercation.
Following a trial in February 2010, a jury acquitted Ensley of attempted, premeditated murder, but convicted him of assault with a deadly weapon and found to be true an allegation he personally inflicted great bodily injury. In March 2010, the trial court sentenced Ensley to a prison term of seven years, comprised of the aggravated seven-year term for assault with a deadly weapon, and a consecutive three-year term for infliction of great bodily injury.
II
Discussion
The trial court provided several self-defense instructions, including an instruction on mutual combat contained in a version of CALCRIM No. 3471: “A person who engages in mutual combat or who is the first one to use physical force has a right to self-defense only if: [¶] 1. He actually and in good faith tries to stop fighting; [¶] [AND] 2. He indicates, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wants to stop fighting and that he has stopped fighting; [¶] [AND] 3. He gives his opponent a chance to stop fighting. [¶] If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight. [¶] If you decide that the defendant started the fight using non-deadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting.”
Ensley contends the trial court erred in failing to define “mutual combat.” In People v. Ross (2007) 155 Cal.App.4th 1033 (Ross), the appellate court explained the legal meaning of “mutual combat” does not comport with the common or lay understanding of the words. Rather, it is used to describe an aspect of the law of self-defense relating to homicides committed in the course of a duel or other fight begun or continued by mutual consent or agreement, express or implied. (Ibid.; see People v. Hatchett (1944) 63 Cal.App.2d 144, 163 [no evidence “combat entered into voluntarily” as distinct from combat “under circumstances which did not compel her to retreat”]; People v. Rogers (1958) 164 Cal.App.2d 555, 558 [court erred in giving mutual combat instruction because there was no evidence, directly or by inference, that the defendant had any “prearrangement to fight anybody, and certainly none connecting him in any such way with decedent”].) Ross held the trial court prejudicially erred when it refused the jury’s request to define the phrase “mutual combat, ” as used in CALCRIM No. 3471, erroneously telling jurors there was no legal definition and they should use the common, everyday meaning of those words. (Id. at pp. 1044, 1047.)
Ensley did not object to the instruction in the trial court. Section 1259 provides the “appellate court may also review any instruction given... even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” (See People v. Konow (2004) 32 Cal.4th 995, 1024-1025 [substantial rights are affected if the error might reasonably have affected the outcome].)
Although not necessary to its decision, Ross also concluded the trial court erred when it gave CALCRIM No. 3471 because there was no evidence to show both combatants actually consented or intended to fight before the occasion for self-defense arose. (Ross, supra, 155 Cal.App.4th at p. 1050.)
The current version of CALCRIM No. 3471 (Dec. 2008 rev.) contains a definition derived from Ross: “A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self defense arose.” Here, the trial court omitted this definition in the version of CALCRIM No. 3471 it gave the jury.
As noted in People v. Johnson (2009) 180 Cal.App.4th 702, 711, CALCRIM No. 3471 directs the jury to make a preliminary determination whether the defendant had the right to use force to defend himself when the defendant and the victim engaged in mutual combat, or when the defendant was the initial aggressor. The risk in giving CALCRIM No. 3471 without defining mutual combat is that the jury might determine the mutual combat instruction applies simply because the parties got into a violent confrontation. As explained in Ross, the phrase so understood describes situations where the law plainly grants one of the combatants a right of self-defense. “Th[e self-defense] right cannot be forfeited or suspended by its very exercise. Yet that is the effect of relying on the everyday meaning of ‘mutual combat.’ [The] entitlement to strike back in self-defense would then be conditioned, absurdly, on [] first refusing to fight, communicating [one’s] peaceable intentions to his assailant, and giving his assailant an opportunity to desist. By then, of course, his assailant might have beaten him senseless.” (Ross, supra, 155 Cal.App.4th at p. 1044, fn. omitted.)
The Attorney General first responds Ensley forfeited his argument because he failed to request clarifying language. We disagree. Where the legal meaning of a term varies from its commonly understood meaning, the trial court has a sua sponte duty to define the term for the jury. (People v. Griffin (2004) 33 Cal.4th 1015, 1023; People v. Roberge (2003) 29 Cal.4th 979, 988.)
The Attorney General concedes “the third altercation during which [Ensley] stabbed Capellino did not involve ‘mutual combat’ according to its legal definition.” But she argues “the mutual combat instruction was” not so ambiguous that reversal is required. The question is whether there is a reasonable likelihood the jury misunderstood and misapplied the instruction, considering the entire charge to the jury. (People v. Mayfield (1997) 14 Cal.4th 668, 777; People v. Musselwhite (1998) 17 Cal.4th 1216, 1248 [all instructions should be considered, not just a single instruction or isolated parts of an instruction].) The Attorney General contends the jury did not misapply the instruction because the court provided other correct instructions on self-defense (CALCRIM Nos. 505, 604, 3470), jurors are presumed to understand and correlate all instructions(People v. Scott (1988) 200 Cal.App.3d 1090, 1095), and the court advised some instructions might not apply (CALCRIM No. 200). She argues “the jury acquitted [Ensley] of attempted murder, establishing the fact they understood the instructions and knew how to apply them.”
We disagree. No instruction or argument compensated for the court’s failure to explain the concept of mutual combat. Without a definition of the legal meaning of mutual combat, the jury may have applied the instruction simply because Ensley and Capellino exchanged reciprocal blows. (Ross, supra, 155 Cal.App.4th at p. 1045.) Consequently, the jury would never consider the primary self-defense instruction if it used the common understanding of mutual combat as “any violent struggle between two or more people, however it came into being” (Id. at p. 1044; Johnson, supra, 180 Cal.App.4th 711 [“CALCRIM No. 3471 charges a jury to make a preliminary determination of whether the defendant had the right to use force”].) If it found mutual combat, the jury was instructed Ensley had “a right to self-defense only if” he tried to stop fighting, indicated by word or by conduct he wanted to stop fighting and had stopped fighting, and gave his opponent a chance to stop fighting. Because there was no evidence Ensley took these steps, the jury may not have considered his self-defense claim. The fact the jury acquitted Ensley of attempted murder does not demonstrate the jurors correctly applied the instruction. The jury simply may have concluded Ensley lacked the specific intent required for attempted homicide regardless of any self-defense issues.
Finally, the Attorney General argues that even if the jury believed the mutual combat instruction applied, Ensley’s use of the knife constituted excessive force. If the jury credited Ensley’s version of events, it could conclude he stabbed Capellino to prevent another beating posing the risk of serious bodily injury, similar to the one Ensley suffered earlier in the evening, when Capellino allegedly slammed Ensley’s head into the patio. All witnesses agreed Capellino previously beat Ensley into unconsciousness. During the final battle, Ensley claimed Capellino struck him in the face, jumped on top of him, and began punching him. Ensley testified he could not see out of his eye because of the beating to his face, he was frightened, and he believed Capellino might kill or seriously hurt him. Under this scenario, the jury could conclude Ensley was entitled to use deadly force to defend himself against serious physical harm or death.
The Attorney General does not cite any authority for her excessive force claim. Ross cited several cases in rejecting a similar argument. (Ross, supra, 155 Cal.App.4th at pp. 1056-1057.)
As for prejudice, we do not believe the evidence was so one-sided against Ensley that the court’s instructional miscue can be written off as harmless. Rather, we conclude it is reasonably probable Ensley would have obtained a more favorable result had the court given the current version of CALCRIM No. 3471, which was operative at the time of Ensley’s trial. (People v. Watson (1956) 46 Cal.2d 818, 836; Ross, supra, 155 Cal.App.4th at pp. 1054-1055 [the likelihood the defendant would have achieved a more favorable result in the absence of the errors more than “‘merely a reasonable chance, ’” and considerably “‘more than an abstract possibility’”].)
Ensley also argues the instruction was erroneous because it instructed the jury self-defense was limited if he was “the first one to use physical force.” He is correct; this was an incorrect statement of law. A person’s right to self-defense is limited when he is the initial aggressor. (People v. Seaton (2001) 26 Cal.4th 598, 664.) There may be occasions when the first person to use physical force in a fight has the right to do so as a matter of self-defense. For example, a person may reasonably believe he needs to use physical force in response to a verbal threat of imminent injury. The current version of CALCRIM No. 3471 (Dec. 2008 rev.) uses “initial aggressor.” But we agree with the Attorney General under either version of the facts, Capellino was the first one to use physical force. The jury would not have rejected self-defense based on this portion of the instruction.
III
Disposition
The judgment is reversed.
WE CONCUR: MOORE, ACTING P. J., IKOLA, J.