Opinion
A166980
04-12-2024
THE PEOPLE, Plaintiff and Respondent, v. PAUL MARK VANSYCKEL, Defendant and Appellant.
NOT TO BE PUBLISHED
(San Francisco County Super. Ct. Nos. SCN223988, CT15007849)
STREETER, J.
A jury found Paul Mark Vansyckel guilty of committing three offenses on the morning of April 2, 2015, in his Treasure Island residence against Alaiksandr Rainchyk, a man who rented a room from him there, for which the court sentenced him to six years in state prison. Vansyckel argues the trial court prejudicially erred by not instructing the jury on mistake of fact because substantial evidence supported the instruction, and by instructing the jury on limitations to the right of self-defense that did not apply to his case for lack of evidence. We conclude his arguments lack merit and affirm.
I. BACKGROUND
Vansyckel was tried on charges brought by the San Francisco County District Attorney in August 2016 that on April 2, 2015, he committed attempted murder (Pen. Code, §§ 664/187, subd. (a); count 1), assault with a deadly weapon (§ 245, subd. (a)(1); count 2), and aggravated mayhem (§ 205; count 3) against Rainchyk. The district attorney also alleged Vansyckel used a deadly weapon in committing the attempted murder (§ 12022, subd. (b)(1)) and inflicted great bodily injury in committing the attempted murder and the assault (§ 12022.7, subd. (a)).
Undesignated statutory references are to the Penal Code.
At an October 2022 jury trial, the prosecution contended that Vansyckel attacked a defenseless Rainchyk after a verbal disagreement by deliberately throwing hot oil on him and stabbing him with a knife. Vansyckel contended that he defended himself only after Rainchyk appeared to threaten him with a gun and hurt Vansyckel's dog, that he had no intent to hurt Rainchyk, and that any injuries Rainchyk suffered were accidental.
A. The Prosecution's Case
1. Rainchyk's Testimony
Alaiksandr Rainchyk testified that in September 2014, when he was 28 years old, he rented an upstairs bedroom in Vansyckel's Treasure Island apartment. Vansyckel, then in his 50's, rented out the three upstairs bedrooms and used the downstairs living room as his bedroom. Rainchyk liked Vansyckel, but had some "minor incidents" with him. In mid-February 2015, Vansyckel notified Rainchyk by email that he had to move out. The next day, they spoke and it did not go well. Rainchyk continued to live at the apartment as he waited "for a better room to come by."
Vansyckel testified that he used the living room as his bedroom because he had plantar fasciitis.
On April 2, 2015, Rainchyk woke up around 8:00 a.m. and prepared to go to a taxi company's job training program, going in and out of the apartment's first-floor kitchen as he did so. He spoke with Vansyckel in the kitchen standing next to him, and nothing was out of the ordinary. Rainchyk said he was moving out. Vansyckel said he had to pay rent and Rainchyk said to use some of his security deposit instead. When Vansyckel repeated that Rainchyk needed to pay rent, Rainchyk said he would not.
Rainchyk went back and forth between his bedroom and the kitchen a couple of times as he prepared some food. The sliding door to the kitchen was closed when he returned to it the first time, which never had been the case before. He opened the door, saw Vansyckel's dog, and tried to pet him, as he usually did. Vansyckel put the dog in his room and Rainchyk went back upstairs.
When Rainchyk came back to the kitchen, the sliding door was closed again. He opened it with empty hands and without making any gesture as if he had a gun in his hand, and felt a sharp pain in his left eye and pretty much all over him. He testified, "I was . . . shaking and screaming from pain because it felt like electricity was running through me; and I heard a metal noise from the floor."
Rainchyk did not have a clear idea of what was happening. He saw something metal spinning on the floor and looked up to see Vansyckel yelling back at him. Vansyckel grabbed a knife from the countertop and ran towards him gesturing like he was going to "hit" him. Rainchyk stepped back out of the kitchen and into a hallway. Vansyckel, wearing heavy boots with thick soles, ran towards him, holding the knife close to his body. The left side of Rainchyk's back was pushed against some metal shelves. He grabbed and tried to push away Vansyckel's right hand, which held the knife, as Vansyckel pushed Rainchyk and pushed the knife up with both hands. Rainchyk felt the knife hit his upper back.
Rainchyk jumped off the floor, pushed Vansyckel away a little, and started running towards the stairs, but Vansyckel stabbed him again before he could get away. Rainchyk almost slipped on the floor, ran upstairs and into his room, closed the door, and called 911. He felt drops of vegetable oil on him that caused the top of his head to feel like a frying pan, and was in immense pain. He heard Vansyckel follow him upstairs and stand by his room, and then heard him downstairs talking to someone. The police arrived within a half-hour of Rainchyk's call and he was taken to the hospital.
2. Rainchyk's Injuries
As a result of the incident, Rainchyk had third degree and deep second degree burns over 12 to 15 percent of his body-on his head, face, torso, and right arm-a stab wound high on the right side of his back and another on his right flank, and a collapsed lung. A surgeon performed four skin graft surgeries on him, which included xenografts "on all areas" and autografts on Rainchyk's arm, hand, and deltoid region of his shoulder. He was discharged on May 22, 2015, and received about four months of outpatient care.
Because of his injuries, Rainchyk could not regrow hair to cover permanent scars on his scalp and had permanent scarring on other parts of his body. He testified that after the incident, "[m]y life changed dramatically, and I wasn't able to function for two to three years."
3. Other Prosecution Evidence
A retired San Francisco police officer testified that at around 8:40 a.m. on April 2, 2015, he, then on duty, went to Vansyckel's apartment in response to a call. As he secured the backyard, he saw Vansyckel standing about 50 yards away in an open field. They walked towards each other and met at the backyard fence. Vansyckel "wanted to know what was going on." The officer told him a crime victim was on the premises. Vansyckel said," 'How come I'm not the victim?' ", "that his housemate pointed a gun at him, and that he was holding a pot of hot oil, and that some of it spilled on him."
Another responding officer testified that the apartment scene was "frozen." Later that day, the officers searched it pursuant to a search warrant. They did not find a knife, gun, or any bloody clothes. At trial, Vansyckel identified the knife he had held from a photograph of knives on his kitchen counter. Also, state firearms certification records were searched and found to contain no indication that Rainchyk ever owned a firearm.
B. The Defense Case
Vansyckel testified that he and Rainchyk had not previously known each other when Rainchyk moved into Vansyckel's Treasure Island apartment in September 2014. They entered into a written roommate agreement that required Rainchyk to apply to the master lessor to be put on the apartment's lease. Rainchyk indicated he could be on the lease, but later told Vansyckel he could not because of a payout he had received for another Treasure Island unit. Vansyckel would not have rented to him if he had known that was the case.
In February 2015, Vansyckel served Rainchyk with a 30-day notice to move out; although Rainchyk was a liar, Vansyckel served the notice primarily because Rainchyk had repeatedly fed chicken bones to Vansyckel's dog against Vansyckel's wishes. The two had a heated argument. Rainchyk in effect dared him to call the sheriff and Vansyckel "acquiesced," merely asking him not to feed chicken bones again to the dog.
Before April 2, 2015, Rainchyk did "[a] lot of things" that caused Vansyckel "concern and worry." One time, Rainchyk, with a "weird look" on his face that was "Peter Lorre kind of strange," said he had had a wife who" 'disappeared.'" Also, Vansyckel thought Rainchyk might have a firearm in his room after overhearing him whisper in the kitchen to the other two roommates "something about he keeps it up in his room." Vansyckel kept a recording of the conversation as captured by a kitchen security camera, but it was missing at the time of trial. He could not tell from the recording if Rainchyk was talking about a firearm or a knife.
On April 2, 2015, Vansyckel got up, for a second time that day, around 8:00 a.m., and went to the kitchen. He heated two pots of water for cleaning and prepared to make deep-fried potatoes by heating vegetable oil in a dutch oven and taking out a knife to cut the potatoes. Rainchyk was going in and out of the kitchen. Whenever he came in, he talked about moving out- maybe on the 12th, maybe on the 30th. Vansyckel was happy to hear he was moving out, although hesitant to believe him. But, Vansyckel testified, Rainchyk twice snuck up behind him when Vansyckel faced the stove and started "to talk just as he got his lips toward my ear, and I would jump out of my skin." Also, Rainchyk told Vansyckel he had stopped payment on his rent check and to take any rent owed out of his security deposit. Vansyckel insisted that Rainchyk pay rent and became "a little nervous and agitated."
Vansyckel, disturbed by Rainchyk sneaking up behind him, closed the sliding kitchen door, something he rarely did, two or three times so he could hear Rainchyk come into the kitchen. After closing it the last time, he was moving things away from foaming spaghetti that Rainchyk was heating on the stove when he saw Rainchyk at the open door, about five feet away. Vansyckel testified that Rainchyk's arm was "stretched out," that "I thought I saw a gun in his hand," and that "[h]e either had a gun or he was pointing his finger like it was a gun." He also said it was "probably . . . accurate" to say that, "because of how agitated" he was with Rainchyk, he "probably imagined the firearm in his hands." In any event, Vansyckel testified that he was holding the thick-bottomed dutch oven containing about two quarts of oil at the time. Fearing he would be shot, he turned the pot so that its bottom was in front of his face, bent down, and crossed his legs. He did not intend to hurt Rainchyk by doing so.
Vansyckel did not see where the oil in the dutch oven went. He heard Rainchyk make low "ooh" sounds indicating he was in a lot of pain and go into the hallway towards the stairs. As Rainchyk went out of view, Vansyckel saw him bump into some hallway shelving, both his hands empty, and he appeared to be momentarily blind. Vansyckel then heard a thud and his dog yelp, and thought Rainchyk might have dropped his gun and kicked his dog. He grabbed the knife and ran into the hallway, wearing a long bathrobe and in his bare feet or socks. He testified that he grabbed the knife "to have some protection in case [Rainchyk] had regained his sight and strength suddenly. Or in case he was picking up the gun that he just dropped with a thud, I would have a much easier time trying to subdue him or get the dog out of the way."
As he entered the hallway, Vansyckel started sliding and lost his balance. The two "slipped toward each other" as they tried to get away from each other. Asked how Rainchyk was stabbed, Vansyckel said the two "slid into each other a few times. It was really oily. We were both very hesitant to touch the other or to be anywhere near the other, and we were mangled and tangled trying to get away from each other. And my best guess is that he fell into it once and didn't feel it. And the second time, that went deeper and felt it."
Rainchyk pushed back the arm with which Vansyckel held the knife and ran up the stairs. Vansyckel did not run after him. He saw blood on the knife and, checking himself and thinking back, decided it must be Rainchyk's. He did not notice any oil on himself. He went outside and looked for help, but no one was there. He was emotionally roiled and scared that he had hurt Rainchyk "very seriously," but did not check on him because Rainchyk seemed very scared of him.
Vansyckel called 911. He told the dispatcher," 'My roommate, I don't know if he tried to pour hot water on me,'" and his trial testimony suggests this was a reference to the hot oil he had been carrying. He told the dispatcher he had been carrying the boiling oil when his roommate pushed him and the oil had spilled, that his roommate had tried to shoot him with a gun, and that he had pulled a knife on his roommate; at trial, he testified that these statements were inaccurate. Also, he testified, when he belatedly brought up to the dispatcher that he thought his roommate had had a gun, she "kind of laughed because it was an afterthought," causing him concern that the incident would be misunderstood. However, when he listened to a recording of the call at trial, he did not hear her laugh. Rather, he heard her say, "Okaaay, hmm," which he thought meant she doubted him.
After the call, Vansyckel thought he would be arrested and that Rainchyk had "done it again," meaning "mess[ed]" with his head and gotten "a reaction" from him. Thinking help was on the way, he put on some clothes and went to a friend's house nearby, where he left his bicycle, keys, phone, dog (who was not injured), and, probably, his wallet. Then he walked back to his apartment, where he encountered a police officer by his back fence.
Vansyckel also testified that at the time of the incident, he was two and a half to three inches taller than Rainchyk and weighed about 200 pounds, which was 20 to 30 pounds less than Rainchyk.
C. Verdict, Sentencing, and Appeal
The jury convicted Vansyckel on all counts and found the attached enhancement allegations to be true. The court sentenced him to three years for assault with a deadly weapon and a consecutive three years for the related great bodily injury allegation, and stayed the sentences it imposed for attempted murder, mayhem, and another sentence enhancement allegation.
Vansyckel filed a timely notice of appeal.
II. DISCUSSION
A. The Trial Court's Jury Instructions That Relate to Both Vansyckel's Claims
The court instructed the jury on self-defense, imperfect self-defense, and accident. On count one, attempted murder, the trial court instructed the jury pursuant to CALCRIM No. 505 on perfect self-defense, which would support a finding of justifiable homicide, and instructed the jury pursuant to CALCRIM No. 604 on imperfect self-defense, which would result only in a voluntary manslaughter conviction. On counts two (assault with a deadly weapon) and three (aggravated mayhem), the trial court instructed the jury on self-defense. This instruction included that an act of self-defense had to be based on a reasonable belief of imminent danger.
Regarding the former, the court instructed in relevant part: "The defendant acted in lawful self-defense if: [¶] 1. The defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury. [¶] 2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger. [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger." Regarding imperfect self-defense, the trial court instructed in relevant part: "The defendant acted in imperfect self-defense if: [¶] 1. The defendant took at least one direct but ineffective step toward killing a person. [¶] 2. The defendant intended to kill when he acted. [¶] 3. The defendant believed that he was in imminent danger of being killed or suffering great bodily injury. [¶] AND [¶] 4. The defendant believed that the immediate use of deadly force was necessary to defend against the danger. [¶] BUT [¶] 5. At least one of the defendant's beliefs was unreasonable."
The court instructed in relevant part: "The defendant acted in lawful self-defense if: [¶] 1. The defendant reasonably believed that he was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully; [¶] 2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger."
The court also instructed in the perfect self-defense instruction for count one and the self-defense instruction for counts two and three: "The defendant's belief that he was threatened may be reasonable even if he relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true."
Finally, the trial court gave the following instruction on the issue of accidental conduct: "The defendant is not guilty of Counts 1, 2 or 3, or the lesser crimes thereto, if he acted without the intent required for those crimes, but acted instead accidentally. You may not find defendant guilty of Counts 1, 2, or 3, and the lesser crimes thereto, unless you are convinced beyond a reasonable doubt that he acted with the required intent."
B. The Trial Court's Denial of Vansyckel's Request for a Jury Instruction on Mistake of Fact
Vansyckel first argues the trial court prejudicially erred by denying his request that it instruct the jury on mistake of fact because, Vansyckel contends, substantial evidence supported the instruction. We conclude that, assuming for the sake of argument the trial court should have instructed the jury on mistake of fact, any error was harmless, whether evaluated under the state or federal standards (as argued by the People and Vansyckel respectively) for evaluating the impact of such an error (People v. Watson (1956) 46 Cal.2d 818, 836 [state]; Chapman v. California (1967) 386 U.S. 18, 24 [federal]).
1. Relevant Proceedings Below
Vansyckel requested that the trial court instruct the jury on mistake of fact for both general and specific intent offenses. The prosecution opposed this request on the grounds that Vansyckel contended he acted in self-defense rather than mistake of fact and that insufficient evidence supported the instruction, and argued the defense's request was an attempt to get around the legal prohibition against arguing an imperfect self-defense theory regarding the aggravated mayhem charge.
The court reviewed Vansyckel's testimony and mistake of fact case law. It concluded that Vansyckel had testified that, upon seeing Rainchyk might be holding a gun, he intentionally turned the dutch oven to protect his face, but that the hot oil in it "splashed by accident, not by mistake of fact." Also, the court did not find the mistake of fact evidence "compelling" because of Vansyckel's "equivocal" testimony about whether he saw Rainchyk actually holding a gun when he entered the kitchen. It declined to give the mistake of fact instruction, concluding it was incompatible with Vansyckel's accident defense.
2. Legal Standards
A person who commits an act under a mistake of fact that disproves his or her criminal intent does not commit a crime. (§ 26, par. Three.) Thus, "[a] mistake of fact that disproves the required intent for a crime is a defense to criminal liability." (People v. Speck (2022) 74 Cal.App.5th 784, 791 (Speck).)
"[A] mistake of fact instruction is only appropriate where the defendant's mistaken belief negates an element of the crime. [Citation.] The trial court does not have a sua sponte duty to give a mistake of fact instruction. [Citations.] The court is, however, required to give such an instruction on request, where a defendant presents substantial evidence on mistake of fact and the instruction is legally correct." (Speck, supra, 74 Cal.App.5th at p. 791.)
"Whether the offense is a general or specific intent crime, 'the defendant's mistaken belief must relate to a set of circumstances which, if existent or true, would make the act charged an innocent act.'" (Speck, supra, 74 Cal.App.5th at p. 791.) "For general intent crimes, the defendant's mistaken belief must be both actual and reasonable, but if the mental state of the crime is a specific intent or knowledge, then the mistaken belief must only be actual." (People v. Lawson (2013) 215 Cal.App.4th 108, 115.)
Vansyckel was charged with one general intent crime, assault with a deadly weapon (People v. Perez (2018) 4 Cal.5th 1055, 1066), and two specific intent crimes, attempted murder (People v. Canizales (2019) 7 Cal.5th 591, 602) and aggravated mayhem (People v. Manibusan (2013) 58 Cal.4th 40, 86). The prosecution based the attempted murder and assault with a deadly weapon charges on Vansyckel's stabbings of Rainchyk in the hallway, and based the aggravated mayhem charge on Vansyckel's splattering of hot oil on Rainchyk in the kitchen.
We review a claim of instructional error de novo. (People v. Mitchell (2019) 7 Cal.5th 561, 579.)
3. Analysis
Any error by the trial court in not giving a mistake of fact instruction was undoubtedly harmless in light of the jury's verdicts and the evidence presented at trial.
We begin with the convictions for attempted murder (count one) and assault (count two), each of which, according to the prosecution's theory, was based on Vansyckel's stabbing of Rainchyk in the hallway. The jury's guilty verdicts on these counts, given their instructions, necessarily means it rejected Vansyckel's account of what occurred in the hallway. This includes his contention that he accidentally stabbed Rainchyk twice because both he and Rainchyk, despite trying to move away from the other, repeatedly fell into the other on a hallway floor made slippery by Vansyckel's spillage of two quarts of hot oil. In other words, the jury necessarily concluded that Vansyckel deliberately stabbed Rainchyk in an effort to murder him and assaulted him.
Notably, the jury, in doing so, rejected the idea that Vansyckel went into the hallway to investigate whether Rainchyk had hurt his dog wielding a knife in self-defense-whether he did so under the reasonable belief that he was in imminent danger and needed to use force to defend himself (such as under the perfect self-defense instruction the jury was given regarding the attempted murder count) or the unreasonable belief that he was in imminent danger and needed to immediately use deadly force to protect himself (under the imperfect self-defense instruction the jury was given regarding the attempted murder count). In other words, the jury rejected Vansyckel's contention that he grabbed and wielded the knife because he believed, reasonably or not, that Rainchyk continued to pose an imminent deadly threat to him in the hallway, such as by having a gun that was within his reach.
While Vansyckel testified that Rainchyk's hands were empty when he, Vansyckel, entered the hallway, he also testified that, upon hearing a thud in the hallway, he thought Rainchyk might have dropped a gun and was concerned that Rainchyk could pick it back up.
If this were not enough, there were serious problems with Vansyckel's overall credibility. The apartment was searched on the same day as the incident and the officers found no evidence of a gun, and a search of state records revealed there was no record that Rainchyk had ever owned one. Vansyckel's testimony that he overheard a kitchen conversation amongst the roommates suggesting Rainchyk kept something in his room-perhaps, Vansyckel thought, a gun-was as insubstantial as gossamer. And, as Vansyckel admitted at trial, his initial report to police of what had occurred contained false statements, such as that his roommate had pushed him to try to pour hot oil on him and had tried to shoot him with a gun, raising more doubts about Vansyckel's credibility.
Given the necessary implications of the jury's verdicts on the attempted murder and assault with a deadly weapon counts and the evidence that we have just discussed, it is beyond a reasonable doubt that any error by the trial court in not instructing the jury on mistake of fact was harmless regarding these counts. The only possible mistake of fact evidence that the jury could have relied on was Vansyckel's contention that he thought Rainchyk pointed a gun at him. The jury all but expressly rejected this contention in rejecting Vansyckel's imperfect self-defense theory vis-a-vis the attempted murder count, and its verdicts suggest it found Vansyckel's testimony overall to be incredible.
We reach this same harmless error conclusion regarding the jury's finding that Vansyckel was guilty of aggravated mayhem, which the prosecution based on Vansyckel's splattering of hot oil on Rainchyk in the kitchen. The jury's guilty verdict on this count necessarily means it rejected any idea that Vansyckel acted in reasonable self-defense by splattering Rainchyk with hot oil, including because he actually and reasonably believed he was threatened based on "information that was not true,", i.e., that Rainchyk pointed a gun at him. The only remaining question is whether the jury might have found Vansyckel not guilty of aggravated mayhem based on a finding that he actually, even if unreasonably, mistakenly believed that Rainchyk pointed a gun at him in the kitchen. Under such a theory, the jury would have had to conclude that Vansyckel splattered Rainchyk with hot oil, whether accidentally (as Vansyckel contended) or deliberately (as the People contended), in response to mistakenly seeing a gun and without the specific intent necessary to commit aggravated mayhem.
The trial court instructed the jury that the prosecution, in order to prove Vansyckel was guilty of aggravated mayhem, was required to show that "1. The defendant unlawfully and maliciously disabled or disfigured someone permanently; [¶] 2. When the defendant acted, he intended to permanently disable or disfigure the other person; [¶] AND [¶] 3. Under the circumstances, the defendant's act showed extreme indifference to the physical or psychological well-being of the other person."
We conclude beyond a reasonable doubt that the jury would not have reached any such conclusion if it had been instructed on mistake of fact, for the same reasons that we have just discussed regarding the jury's attempted murder and assault with a deadly weapon guilty verdicts. Further, given that it was instructed regarding accident, the jury rejected any contention that Vansyckel accidentally splattered Rainchyk with hot oil. Could the jury have nonetheless concluded that Vansyckel, unreasonably mistaken about seeing a gun in Rainchyk's hand, deliberately threw hot oil at Rainchyk based on this mistake of fact and without the specific intent necessary to commit aggravated mayhem? Given the evidence in this case, we conclude, here too, beyond a reasonable doubt, that it would not have done so.
The jury's guilty verdict on the attempted murder count made plain that it rejected an imperfect self-defense theory that was very similar to a mistake of fact defense. This imperfect self-defense theory was based at least in part on Vansyckel's contention that he thought, unreasonably or not, that he saw a gun in Rainchyk's hand. Moreover, the jury concluded that Vansyckel attempted to murder Rainchyk and assault him in the hallway. We believe it beyond the realm of reason that any juror could have concluded that Vansyckel initially had no intention of maiming Rainchyk based on mistake of fact but that Vansyckel, upon rendering Rainchyk injured, blind, and in great pain by throwing hot oil on him, only then suddenly assaulted and formed the intent to murder him.
In short, Vansyckel's prejudice arguments are without merit.
C. The Court's Jury Instructions on Limitations to the Right of Self Defense
Vansyckel also argues the trial court prejudicially misled the jury regarding his self-defense theories by instructing on three limitations to the right to self-defense-that the right does not apply if the defendant starts or provokes the fight or engages in mutual combat-that were not supported by substantial evidence. He acknowledges he did not object to the instructions below, but argues he has not forfeited his claims because the trial court's errors affect his substantial rights, and argues in the alternative that his trial counsel's failure to object constitutes ineffective assistance of counsel. The People argue he has forfeited these claims, that his claims lack merit, and that any error was harmless.
For the sake of argument, we will assume, without deciding, that Vansyckel has not forfeited his claims and address their merits.
1. Relevant Proceedings Below
Regarding limitations to the right of self-defense, the trial court instructed the jury pursuant to CALCRIM No. 3471: "A person who engages in mutual combat or starts a fight has a right to self-defense only if: [¶] 1. He actually and in good faith tried to stop fighting; AND [¶] 2. He indicated, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wanted to stop fighting and that he had stopped fighting[.] [¶] If the defendant meets these requirements, he then had a right to self-defense if the opponent continued to fight.
"However, if the defendant used only 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 or communicate the desire to stop to the opponent, or give the opponent a chance to stop fighting."
Pursuant to CALCRIM No. 3472, the court instructed that "[a] person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force."
Also, pursuant to CALCRIM No. 200, the court instructed that some "of these instructions may not apply, depending on your findings about this case." It instructed the jury to "follow the instructions that do apply to the facts as you find them."
2. Legal Standards
"' "[I]n criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence"' and' "necessary for the jury's understanding of the case." '" (People v. Brooks (2017) 3 Cal.5th 1, 73.)" 'Substantial evidence is evidence sufficient to "deserve consideration by the jury," that is, evidence that a reasonable jury could find persuasive.'" (People v. Landry (2016) 2 Cal.5th 52, 120.)"' "[I]t is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case." '" (People v. Valencia (2008) 43 Cal.4th 268, 288.)
As we have discussed, we review a claim of instructional error de novo. (People v. Mitchell, supra, 7 Cal.5th at p. 579.)
3. Analysis
Vansyckel makes only perfunctory arguments for why the evidence was insufficient to justify the trial court's limitation instructions, based on his own account of the incident rather than all of the evidence that was presented.
Contrary to his contentions, substantial evidence supports the trial court's jury instructions that his self-defense claims did not apply if the jury found he started or provoked a fight with Rainchyk.
" 'It is well established that the ordinary self-defense doctrine . . . may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary's attack or pursuit is legally justified.' [Citation.] Moreover, a quarrel provoked by a defendant, or a danger which he has voluntarily brought upon himself by his own misconduct, is not sufficient to support a reasonable apprehension of imminent danger. [Citation.] 'In other words, when a defendant seeks or induces the quarrel . . ., the right to stand his ground is not immediately available to him, but, instead, he must first decline to carry on the affray and must honestly endeavor to escape from it.'" (People v. Hill (2005) 131 Cal.App.4th 1089, 1102, disapproved on other grounds as stated in People v. French (2008) 43 Cal.4th 36, 48, fn. 5; see also § 197, subd. (3) [the right to self-defense is not available if the defendant "was the assailant," unless he or she "really and in good faith . . . endeavored to decline any further struggle before the homicide was committed"].)
Regarding the attempted murder and assault with a deadly weapon counts, which the prosecution based on Vansyckel's stabbing of Rainchyk in the hallway, Rainchyk testified that after something physically shocked him upon his opening the sliding kitchen door and caused him great pain, Vansyckel, yelling, grabbed a knife and ran towards him, gesturing as if to hit him, as Rainchyk stepped back into the hallway. Regarding the aggravated mayhem charge, Rainchyk's testimony and his subsequent injuries are substantial evidence that Vansyckel threw hot oil upon him as soon as Rainchyk, empty handed, opened the sliding kitchen door. Regarding all three counts, a juror could also reasonably infer from the evidence that Vansyckel had no reason to believe that Rainchyk threatened him with a gun, and made up that claim in order to justify his provoking or starting a fight with Rainchyk. This evidence is sufficient to support the trial court's starting and provoking a fight instructions.
As for the court's mutual combat instruction, in California,"' "mutual combat" means not merely a reciprocal exchange of blows but one pursuant to mutual intention, consent, or agreement preceding the initiation of hostilities. . . . In other words, it is not merely the combat, but the preexisting intention to engage in it, that must be mutual.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1044, original italics; see also § 197, subd. (3) [the right to self-defense is not available if the defendant "engaged in mutual combat," unless he or she "really and in good faith . . . endeavored to decline any further struggle before the homicide was committed"].)
Arguably, the trial court should not have given this mutual combat instruction for lack of substantial evidence to support it, but not for the reason Vansyckel asserts. There is substantial evidence that Vansyckel engaged in combat by throwing hot oil at Rainchyk and deliberately stabbing him twice in the hallway, as indicated by Rainchyk's testimony and his resulting injuries. But it is questionable that Rainchyk engaged in combat. Perhaps it could be argued Vansyckel's testimony that Rainchyk entered the kitchen either pointing a gun or holding his finger out like a gun and that the two "tangled" in the hallway is sufficient evidence for the instruction. We need not decide these matters, however, because any error in giving the mutual combat instruction, whether considered under the state or federal standards for evaluating the impact of such an error (People v. Watson, supra, 46 Cal.2d at p. 836; Chapman v. California, supra, 386 U.S. 18), was harmless because of the ample evidence that Vansyckel attacked Rainchyk in both the kitchen and the hallway. The mutual combat instruction, therefore, was inconsequential, particularly in light of the court's instructions to the jury that some "of these instructions may not apply, depending on your findings about this case" and that it should "follow the instructions that do apply to the facts as you find them." (See People v. Parker (2022) 13 Cal.5th 1, 71 ["Jurors are presumed to follow the instructions given."].)
Given our conclusions, we also reject Vansyckel's argument that the cumulative effect of the trial court's instructional errors requires reversal.
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: BROWN, P. J. SMILEY, J. [*]
[*] Judge of the Superior Court, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.