Opinion
A127673
12-15-2011
THE PEOPLE, Plaintiff and Respondent, v. ANGELO MICHAEL GARCIA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. SCR-533070)
Defendant Angelo Michael Garcia appeals his conviction of attempted murder. He contends the evidence does not support the jury's finding that his actions were premeditated. He also claims the jury instruction on the lesser included offense of attempted voluntary manslaughter was prejudicially erroneous. We affirm.
PROCEDURAL HISTORY
On July 29, 2009, a first amended information was filed against defendant charging him with one count of premeditated attempted murder (Pen. Code, §§ 664/187, subd. (a) (Count One)), two counts of carrying a loaded firearm (§ 12031, subd. (a)(1) (Counts Two and Three)), one count of being an active gang participant (§ 186.22, subd. (a) (Count Four)), and one count of assault with a deadly weapon (§ 245, subd. (a)(2) (Count Five)). The information alleged several enhancements to these counts, including personal use of a firearm (§ 1203.6, subd. (a)(1)), personal infliction of great bodily injury (§ 12022.7, subd. (a)), offending while on state prison parole (§ 1203.085, subd. (b)), personal discharge of a firearm causing great bodily injury (§ 12022.53, subds. (d) & (e)(1)), knowledge and use of a stolen firearm (§ 12031, subd. (a)(2)(B)), and being an active participant in a criminal street gang (§ 12031, subd. (a)(2)(C)).
All further statutory references are to the Penal Code.
On August 25, 2009, the jury announced it could not reach a decision on Counts Three and Four, and the court declared a mistrial for those counts. The jury found defendant guilty of Counts One, Two, and Five, and found the alleged enhancements to be true, with the exception of the two on-parole enhancements.
On January 6, 2010, the trial court denied defendant's motion for new trial.
On February 18, 2010, the trial court sentenced defendant to 32 years to life, calculated as seven years to life for attempted murder, plus 25 years to life for personal discharge of a firearm causing great bodily injury. The court imposed a three-year sentence for Count Two, concurrent with the sentence for Count One. A four-year sentence for Count Five was stayed.
EVIDENCE PRESENTED AT TRIAL
I. The Prosecution's Case
A. The Shooting
The victim, Alberto Aparicio, testified that he called his friend Uriel Caballero late in the evening on March 14, 2008, and asked if he could come to Caballero's house on Beachwood Drive in Santa Rosa. Aparicio wanted to come over in order to get drunk. Caballero agreed, and Aparicio asked a friend of his to drive him to the house. When he arrived, there were about five or six people there, including Caballero and his younger brother Eduardo.
Aparicio admitted he was a member of a gang called the "Pachuco Locos," or "PL," which is a subset of the Norteño criminal street gang. The gang is based in northwest Santa Rosa. By the time of trial, he claimed he was no longer an active member of the gang. He explained that a former gang member who leaves the gang on bad terms is referred to as a "no good." The term "punked" means when someone makes you look bad in front of other people. In the gang, if you are a "snitch" you will be considered a no good, and you could get beat up or even killed. Aparicio also explained that "pee wee" is the term for a young person who is just starting to come into the gang.
Since the shooting, Aparicio has been stabbed twice. The stabbings could have been related to the fact that he was testifying in this case.
While at Caballero's house, Aparicio drank and began arguing with the people who were there. At trial, he stated that he believed defendant was at the house that night. He identified defendant by his real name and by his moniker, which was "Monster." Though he was given a transcript of an interview he had given to police in the hospital, at trial he could not remember if he had argued with defendant about a problem defendant was having with some of the local pee wees. Aparicio testified that at some point he had told defendant he was a "no good," but he could not remember if he mentioned it on the night he was shot. He had also already heard that defendant was having problems with the pee wees, but did not remember having heard defendant say that he wanted to shoot them. At some point, he went outside to urinate in the backyard. He saw a flash over the gate, and then he fell backwards.
Caballero testified at trial that in March 2008 he was living at the residence on Beachwood with his younger brother, his friend Casey Ambrose, and Ambrose's girlfriend Bernice Guerrero. Caballero is an active member of the Pachuco Locos gang. On the day of the shooting, he had bought a few bottles of tequila to celebrate Ambrose's birthday. That evening, Caballero was at the house with his brother and Guerrero. Aparicio came to the house and was there for no more than 30 minutes. Caballero denied seeing defendant at the residence. He did not hear any argument inside the house, though he did hear an exchange of words outside and thought Aparicio was talking on his cell phone. He then heard the gunshot, went outside, and saw Aparicio fall. He kicked down the gate, ran out to the street, and saw a man running south on Beachwood.
Eva Gonzalez lived in the front unit of the duplex on Beachwood Drive where the shooting occurred. At around midnight on March 14, 2008, she heard two male voices that sounded like they were arguing. She couldn't hear them very well because she was watching a movie with her daughters. She did hear a voice say "Don't call me a bitch," and one of the voices say he had a gun. At some point she heard something bouncing off of the outside wall. She became frightened, and she and the girls lay down on the carpet. Then she heard a gunshot.
Just before midnight on March 14, 2008, Officer Blake Delzell was on duty when he received a radio dispatch that a man had possibly been shot at a residence on Beachwood Drive. When Delzell arrived, he found a man lying on the ground in a side yard with his feet facing towards a fence. The victim appeared to have been shot in the chest.
After paramedics arrived, Officer Ryan Corcoran accompanied Aparicio to the hospital. At the hospital, Aparicio initially said that he had shot himself. Later, Corcoran asked him what had really happened, and Aparicio said that he had been standing in the side yard at his friend Uriel's house. The gate to the yard was closed. He heard a male voice say "hey" or "what's up" and as he turned towards the gate he heard a bang and saw a flash.
Aparicio arrived at the emergency room with a gunshot wound in the center of his chest. He appeared to be evasive when answering the doctor's questions. Subsequent surgery revealed that he had a hole in his heart through the right ventricle, as well as a hole through his diaphragm and liver. An X-ray revealed that the bullet was lodged down by the spine. The surgeon retrieved a piece of the bullet, which was given to a police officer. The bullet had traveled through Aparicio's body at a downward angle. He remained in the hospital for about a week after the surgery.
Officer Julio Delangel contacted Uriel and Eduardo Caballero at the scene of the shooting. The brothers told Delangel that they had been inside the residence drinking when Aparicio went outside to smoke. They heard a pop, came outside, and saw him stumble back and fall on the ground. They then saw someone run away. They ran after the subject but could not identify who he was. They then returned and called the police.
B. Identification of Defendant
Officer James Harris was in his patrol vehicle that night when he was asked to look for any suspects or persons related to the shooting incident. He located a small Honda matching the description of a vehicle that another officer had radioed about. When he stopped the vehicle, defendant was seated in the rear seat. Harris spoke with defendant, who stated that he had asked the other two people in the car to pick him up from a friend's house. The vehicle and its occupants were searched, but nothing was found. After the interview, defendant was released.
Jason Karnes was driving the car that the police pulled over on the night of the shooting. John Rogers and defendant were also in the car. Karnes had been at Rogers's house when defendant called and said he needed a ride. About 10 minutes after they picked him up, they were stopped by the police.
Officer Eric Swift spoke with Caballero on the night of the shooting. Caballero stated that he heard Aparicio yell something like " 'What are you doing here? Get the fuck out of here,' " shortly before he was shot. Later, Swift interviewed Aparicio when he was in intensive care and showed him some photographs, including a photograph of defendant. Swift asked who had shot him, and Aparicio said it was someone within the group of photographs. He also mentioned that the person who shot him had been in Reno. When Swift showed him defendant's picture, Aparicio said something to the effect that he was the one. He also stated that he had been arguing with defendant because defendant mentioned that he wanted to shoot some of the Pachuco Locos pee wees and Aparicio told him that he wouldn't allow that.
Swift also testified as an expert witness in the area of identifying activity of criminal street gang participants. In Swift's opinion, defendant was an active gang member.
A meeting was arranged between defendant and his parole agent at a restaurant on the evening of March 19, 2008. Sergeant Stephen Craig Schwartz went to the site of the meeting to conduct surveillance. He saw defendant drive his car to the location and walk around the corner of a building. A short time later, he walked back to his car and into the restaurant. Schwartz and other officers arrested defendant. After the arrest, Schwartz searched the area behind the building where defendant had gone and found a revolver lying in plain view. Two albums with photos of defendant with gang members, along with articles about violence in the Santa Rosa area, were found in his car.
Defendant was first placed in juvenile hall in 2002 because of a gang-related incident. He engaged in several fights in juvenile hall with rival Sureños gang members. He identified himself on multiple occasions as a member of the Valley Oak Park gang and the Pachuco Locos, both subsets of the Norteños gang. Eventually, he was committed to the Department of Juvenile Justice. His commitment offense was gang-related.
Defendant was paroled out of the Department of Juvenile Justice to the state of Nevada. He returned to Santa Rosa in November 2007. Lawrence Colacion was defendant's parole agent. Four months prior to the shooting of Aparicio, defendant admitted to Colacion that he considered himself to be a Norteño gang member. The day after his arrest, defendant told Colacion that some gang members were harassing him and had beat him up. He stated he had placed the gun outside the building prior to their meeting and admitted that the bullet taken from Aparicio's body would match his gun. Defendant had initially denied shooting Aparicio when Swift interviewed him after his arrest. Subsequently, a ballistics expert concluded that the bullet fragment taken from Aparicio's body could have come from hollow-tip cartridges similar to those that could have been fired from defendant's gun.
II. Defendant's Case
Defendant testified at trial. He was raised in Santa Rosa and admitted he identified as a gang member during the time he was involved in the juvenile justice system, but stated that he began to question his involvement with the gang over time. After he was paroled to Nevada in January 2006, he did not have any gang-related issues with his Nevada parole agent. He did, however, obtain a handgun without his parole officer's permission. When he came back to Santa Rosa in 2007, his housing situation was unstable, and sometimes he had to sleep in his car, at people's houses, or in hotels.
In late 2007, defendant became aware that some Norteños considered him to be a gang drop-out and a "no good." He got into a few fights with some of these gang members, including one altercation that caused him to go to a hospital emergency room. At the hospital, he lied about what had happened because he did not want his parole agent to violate him for being involved in gang-related activities. After that beating, he bought the gun that he later used to shoot Aparicio.
In the weeks just prior to the night of the shooting, he had spent a few nights at Caballero's house. On the night of the shooting, he drove his car to the house intending to spend the night. At some point, he left with Eduardo Caballero to pick up another friend. When that friend decided he did not want to come over, defendant drove back to the house. By this time, Aparicio was there. Defendant was acquainted with Aparicio and had bought marijuana from him a few times since his return to Santa Rosa. Aparicio gave him an unfriendly look and defendant decided to go to the store, hoping that Aparicio would be gone by the time he returned. When he came back, Aparicio was still there and the hostility escalated.
Eventually, Aparicio challenged defendant by asking him where he was from, by which he was asking what gang defendant claimed. Defendant replied that he was from Santa Rosa, and Aparicio responded by saying defendant was not from his neighborhood. Aparicio called him a "bitch" and a "punk" and asked him if he wanted to take it outside. Defendant decided to leave the residence and Aparicio followed behind, challenging him verbally. Their voices were raised and they started pushing each other. Defendant's back was pushed against a wall. He had his gun in his right pant pocket and, as the confrontation became more physical, he felt it sliding down so he put his hand under his shirt and grabbed it and held it behind his back. Aparicio noticed he was holding something and defendant kept telling him to back up. When Aparicio reached for defendant's right hand, defendant punched him twice in the face with his left hand. Aparicio walked away, but then he turned around quickly and appeared to be reaching for something. Defendant was afraid he was going to be shot. He pulled the gun up and shot Aparicio.
On cross-examination, defendant stated that the gun had been in his waistband.
Caballero appeared and started yelling at him, and defendant went to his car but then decided to run down the street. He ran until he got to the back of a parking lot and threw the gun in a ditch. He then called his friend Karnes and asked him for a ride. Later that night, after he went back to get his car from Caballero's house, he retrieved the gun.
DISCUSSION
I. Substantial Evidence Supports the Conviction of Premeditated Attempted Murder
Defendant claims the jury's finding of premeditation is not supported by substantial evidence. He argues the prosecution failed to present "any of the traditional indices of premeditation." Specifically, he claims the prosecution failed to provide evidence that defendant engaged in a careful weighing of considerations in forming his course of action.
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. ' "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" ' [Citations.]" (People v. Smith (2005) 37 Cal.4th 733, 738-739.) It is incumbent upon the reviewing court to accept any logical inferences the jury might have drawn from the evidence. (People v. Rodriguez (1999) 20 Cal.4th 1,11.)
A person is deemed to have committed the crime of first degree murder when the killing is "willful, deliberate, and premeditated." "To prove the killing was 'deliberate and premeditated,' it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act." (§ 189.) " ' "Deliberation" refers to [a] careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance. [Citations.] "The process of premeditation and deliberation does not require any extended period of time. 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.' [Citations.]" ' [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1182.)Evidence of premeditation is often presented circumstantially. Appellate courts have observed three categories, or features, of evidence are often present in cases where premeditation has been found: planning, motive, and manner of killing. A combination of such is sufficient to support a finding of premeditation. (People v. Anderson (1968) 70 Cal.2d 15, 26-27; see also People v. Halvorsen (2007) 42 Cal.4th 379, 419-420 ["Since Anderson, we have emphasized that its guidelines are descriptive and neither normative nor exhaustive, and that reviewing courts need not accord them any particular weight."].) Here, defendant emphasizes that the shooting took place during a heated physical confrontation. Under these circumstances, he claims, there was "no room for 'careful thought and weighting.' " Relying on the three factors as set forth in Anderson, he asserts (1) there was no evidence that defendant planned the shooting, (2) that his relationship with Aparicio did not support an inference that the killing was premeditated and deliberate, and (3) that the manner of the shooting did not show premeditation and deliberation.
First degree murder decisions have been used to analyze premeditated attempted murder. (See People v. Lenart (2004) 32 Cal.4th 1107, 1127.)
We conclude the evidence presented at trial is sufficient to support the jury's finding. Planning is shown in that the confrontation was initially averted when defendant left Caballero's house, yet he voluntarily chose to return armed with a concealed loaded handgun. He then chose to remain in the house even though Aparicio had not left. Further, he continued to participate in the confrontation and ultimately drew Aparicio out of the residence and into the backyard away from others before he shot him. Taking the matter outside has been deemed "planning" activity. (See People v. Mayfield (1997) 14 Cal.4th 668, 768.)
Additionally, there is evidence of a motive in that it is undisputed that the relationship between defendant and Aparicio was antagonistic just before the shooting. Defendant himself testified he initially left the residence due to Aparicio's hostility towards him. The animosity was not just personal, but was related to defendant's disputed status as a member of a gang with which he had identified for many years. Defendant had recently been attacked by fellow Norteño gang members, and accused of being a "no good" by them as well as by Aparicio. While the jury did not find defendant's actions were carried out for the benefit of a criminal street gang, Swift did testify that ostracized gang members sometimes seek to regain their standing by committing acts of extreme violence.
The manner of the attempted murder also supports the jury's verdict. Defendant shot the victim in a vital area at close range and subsequently made no effort to seek help. (See People v. Koontz (2002) 27 Cal.4th 1041, 1082-1083 [intent to kill shown by defendant's shooting victim in a vital area from only a few feet away and then preventing a witness from calling an ambulance]; and People v. Mayfield, supra, 14 Cal.4th 767-768.) In sum, while the evidence could possibly support other inferences, under the standard of review applicable here, "we do not reevaluate the credibility of witnesses or resolve factual conflicts; rather, we presume the existence of every fact in support of the verdict that reasonably could be inferred from the evidence." (People v. Brady (2010) 50 Cal.4th 547, 564.) A rational trier of fact could reasonably view the evidence as showing that defendant, after being challenged and disrespected by a fellow gang member, left the house to retrieve his weapon and returned with the intent to use it against Aparicio. These circumstances alone reveal planning and motive. Further, there was substantial evidence supporting the inference that defendant may have acted in an attempt to regain his status within the gang. We thus reject his contention that insufficient evidence supports the jury's finding of deliberation and premeditation.
II. CALCRIM No. 604
Defendant contends the jury was improperly instructed with former CALCRIM No. 604, which states that attempted murder is reduced to attempted voluntary manslaughter when the perpetrator acts in "imperfect" or unreasonable self-defense. Generally, "[v]oluntary manslaughter is a lesser included offense of murder when the requisite mental element of malice is negated . . . by an unreasonable but good faith belief in the necessity of self-defense." (People v. Gutierrez (2003) 112 Cal.App.4th 704, 708.) Similarly, acting in unreasonable self-defense reduces attempted murder to attempted voluntary manslaughter. (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 833-834.)
The trial court instructed the jury with former CALCRIM No. 604. As given, the instruction states in pertinent part: "An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense. [¶] If you conclude the defendant acted in complete self-defense, his action was lawful and you must find him not guilty of any crime. The difference between complete self-defense and imperfect self-defense depends on whether the defendant's belief in the need to use deadly force was reasonable. [¶] 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. The defendant's beliefs were unreasonable. [¶] . . . [¶] The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find the defendant not guilty of attempted voluntary manslaughter." (Italics added.) The jury was also instructed on CALCRIM No. 505 (complete self-defense).
We note defendant's appellate counsel misquotes the actual instruction given by the trial court. The discrepancies, however, are not material to the issues raised on appeal.
Defendant, relying on People v. Her (2009) 181 Cal.App.4th 349 (Her), argues the instruction is flawed because the jury could have found he acted in imperfect self-defense only if it found that he had an unreasonable belief he was in imminent danger and he had an unreasonable belief that the use of deadly force was necessary to defend himself. He claims proof that either one of these two beliefs was unreasonable is sufficient to support a finding of imperfect self-defense. The appellate court in Her concluded this instruction misstates the law on imperfect self-defense because it erroneously requires the jury to find that both beliefs were unreasonable. (Id. at p. 353.) The People question whether this finding in Her is supported by the Supreme Court case (People v. Humphrey (1996) 13 Cal.4th 1073) upon which, in part, the Her opinion relies.
In Her, a jury convicted the defendant of murder and attempted murder in a case involving multiple victims. The defendant was with his brother when he shot the victims during an altercation. (181 Cal.App.4th 349, 351-352.) The jury was instructed on the lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter, as well as self-defense and defense of another. (Id. at pp. 352-354). The court of appeal affirmed the verdict, finding no prejudicial error in a discrepancy between CALCRIM No. 571, the voluntary manslaughter instruction, and CALCRIM No. 604, the attempted voluntary manslaughter instruction. CALCRIM No. 571 provides that imperfect self-defense is shown if a defendant either had an unreasonable belief that he or she was in imminent danger or he or she had an unreasonable belief that the use of deadly force was necessary to defend himself or herself. (Her, supra, at pp. 352-353.) The appellate court agreed with the defendant that the attempted voluntary manslaughter instruction erroneously told the jury that imperfect self-defense existed only if both beliefs were unreasonable. (Id. at p. 353.) The court concluded, however, that there was no reasonable likelihood the instructions given in that case, considered as a whole, could have been understood to require a harsher verdict for a partially unreasonably belief in the need to use force to defend himself or his brother, than for a completely unreasonable belief in that regard. (Id. at pp. 353-354.)
We question whether former CALCRIM No. 604 does misstate the law, at least in any sense short of a hyper-technical one. For example, in the present case defendant suggests the evidence would have supported a finding that he had an unreasonable belief he faced imminent threat of death, but that he still could have been found to have acted reasonably, based on that belief, in resorting to the use of deadly force. As a matter of logic, this scenario is not plausible. If the belief that one faces a danger of imminent death is unreasonable, then the belief in the need to use deadly force to counter that unreasonable belief cannot be reasonable. Both beliefs would necessarily have to be unreasonable. Here, nothing took place to transform an unreasonable belief defendant faced imminent death into the reasonable belief he could use deadly force to negate that unreasonable belief.
The CALCRIM instructions confusingly parse out the concept of imperfect self-defense into three separate elements. The concept can accurately be stated in a single sentence, e.g., "That the defendant honestly, but unreasonably, believed the immediate use of deadly force was necessary to defend against the imminent danger of being killed or suffering great bodily injury." The People note that CALJIC No. 8.40 states the concept as a single belief: " 'There is no malice aforethought if the killing occurred in the actual but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury.' "
Even if the instruction is erroneous, we conclude it is not reasonably probable defendant would have obtained a more favorable result had the court given a correct version of CALCRIM No. 604. (People v. Watson (1956) 46 Cal.2d 818, 836; See People v. Ross (2007) 155 Cal.App.4th 1033, 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' "].) Under Watson, our review "focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration." (People v. Breverman (1998) 19 Cal.4th 142, 177.) If the evidence supporting the existing judgment is strong in comparison to the evidence supporting defendant's imperfect self-defense claim, there is no reasonable probability that the instruction affected the result. (Ibid.)
Here, defendant's own testimony suggests that he was the aggressor in the final confrontation with Aparicio. After having removed himself from the initial hostilities, he returned to Caballero's house with a loaded gun knowing that a confrontation was likely to ensue if Aparicio was still present. He then complied with Aparicio's invitation to take the argument outside, removed the gun from his pants, and held it behind his back while he punched Aparicio twice in the face with his other hand. While the evidence showed Aparicio was also behaving aggressively, at best he had merely participated in a mutual shoving match. Thus, it is not reasonably probable that a jury would have found defendant had any belief, reasonable or unreasonable, that he needed to use deadly force to defend himself. Indeed, the jury was instructed with CALCRIM No. 3471, which provides: "A person who engages in mutual combat or who is the initial aggressor 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. [¶] If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight." The jury also was instructed with CALCRIM No. 3472, as follows: "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." We also note there is no evidence the jury was confused on this point, as it did not ask for clarification of the court's instructions pertaining to Count One. Accordingly, we reject defendant's claim of error.
See People v. Button (1895) 106 Cal. 628, 632 ("In order for an assailant to justify the killing of his adversary, he must not only endeavor to really and in good faith withdraw from the combat, but he must make known his intentions to his adversary.")
As our Supreme Court explained in In re Christian S. (1994) 7 Cal.4th 768: "It is well established that the ordinary self-defense doctrine—applicable when a defendant reasonably believes that his safety is endangered—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. [Citations.] It follows, a fortiori, that the imperfect self-defense doctrine cannot be invoked in such circumstances." (Id. at p. 773, fn. 1.)
The jury did ask for clarification of the court's instructions on Count Four.
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DISPOSITION
The judgment is affirmed.
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Dondero, J.
We concur:
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Marchiano, P. J.
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Banke, J.
People v. Garcia, A127673