Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County Nos. 08CM3000 & 04CM3124A James T. LaPorte, Judge.
Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans for Plaintiff and Respondent.
OPINION
Franson, J.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of October 11, 2008, two groups converged, ending in tragedy. In one group were several friends, including Colby and Justine Nichols, brother and sister, (“Colby” and “Justine”) and their friends Rob Blancett (“Rob”) and Jenny Willhite (“Jenny”). Rob and Justine were dating. In the other group were appellant, his wife Elizabeth, and her friend, Angelina Soares (“Angie”). Each group was intertwined with the other through a series of current and ex-relationships. Appellant and Colby met several years before through appellant’s wife, and were casual acquaintances without any prior problems. Colby and appellant’s wife had previously lived together, and Colby and his sister, Justine, had visited appellant’s home on occasion. Appellant had not previously met Rob
On the evening in question, Colby’s group was helping another friend move. Jenny and Angie exchanged heated text messages, initiated by Angie, about Jenny making a sexually derogatory comment about Angie, culminating with a demand by Angie for Jenny to confront her. Turning to her friend Elizabeth for support, Angie convinced Elizabeth to accompany her to Jenny’s location. Appellant, Elizabeth’s husband, went with the two women, intending to make sure nothing happened to his wife in what he thought could inevitably turn into a serious situation.
Upon arriving at Jenny’s location, appellant recognized Colby, Justine and Jenny. Angie immediately walked up to Jenny and verbally confronted her, but Jenny backed down. However, Justine then stepped in and confronted Angie, initially with verbal accusations and eventually leading to each woman striking the other with their fists. Appellant was standing near a trailer when Justine first started fighting with Angie. Colby then pulled his sister Justine away from Angie and moved her toward a garage, a few feet away, and tried to calm her down. Still upset, Justine broke away from Colby and resumed fighting with Angie, striking her in the head and knocking her to the ground. Justine jumped on top of Angie and continued to strike her on the head with a closed fist. After about 20 or 25 seconds, and while the fight may have still been in full force, appellant told the women to “stop it” and then lifted Justine off Angie by her arms and, according to appellant, “tossed” or “slung” her about three or four feet. She landed with her head hitting a cement object, dazing her and causing an inch-long gash to the back of her head.
Colby, having just witnessed appellant “slam[]” his sister, and unsure what appellant would do next, pushed appellant against the side of the trailer. Rob, nearby at the time, came over and held appellant by his shoulder, neck or head area. Appellant resisted and swung his arms. Colby responded by punching appellant in the head multiple times with significant force. In response, appellant pulled a knife from his pocket, eventually stabbing Rob in the chest. Rob then stumbled away, releasing appellant. Colby was unaware of the stabbing at this point, and he and appellant continued fighting for several seconds before Colby tripped and fell backwards, landing on his back about three feet from appellant. Appellant had fallen to his knees, and said to Colby words to the effect of, “Do you want to get stuck, too?”
It was then that Colby first saw appellant holding a knife out. He kicked appellant away from him, with the kick landing around appellant’s head. Colby then jumped up, before appellant made any movement toward him. Colby understood appellant’s statement to mean that if he did not stop fighting with appellant, he might stab him. Colby did not believe appellant would stab him if he refrained from continuing the fight. Colby did not know at that moment what had happened to Rob, but about four or five seconds later, someone shouted out that Rob had been stabbed. Within seconds, at his wife’s urging, appellant, Elizabeth, and Angie hurried to their car and drove away. Before appellant got in the car, he threw the knife into a nearby field.
A jury found appellant guilty on three counts: 1) second degree murder of Rob (Pen. Code, § 187); 2) simple assault of Justine (§ 241, subd. (a)), as a lesser included offense of assault of Justine by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)); and 3) making a criminal threat to Colby (§ 422). The jury also found true that appellant personally used a deadly weapon (a knife) during the commission of counts 1 and 3. (§ 12022, subd. (b)(1).)
All further statutory references are to the Penal Code unless otherwise noted.
After the jury returned its verdicts, defense counsel moved for a new trial, in part based on lack of sufficient evidence to prove the threat to Colby was unconditional, and that it caused more than momentary or fleeting fear. The trial court denied the motion, concluding sufficient credible evidence supported the jury verdicts.
Appellant raises two issues on appeal. First, he contends insufficient evidence supports his criminal threat conviction, specifically, that insufficient evidence shows the victim suffered “sustained fear” arising from appellant’s statement. Second, appellant contends the trial court had a sua sponte duty--which it breached--to provide the jury with a definition of “initial aggressor” as used in the jury instructions pertaining to an initial aggressor’s right to self-defense. For the reasons discussed below, we will reverse the criminal threat conviction and remand the case for resentencing. In all other respects, the judgment is affirmed.
DISCUSSION
I. INSUFFICIENT EVIDENCE SUPPORTS THE FINDING THAT THE VICTIM WAS REASONABLY IN “SUSTAINED FEAR” ARISING FROM APPELLANT’S ACTIONS
A. Standard of review
In considering appellant’s claim of insufficiency of the evidence supporting a conviction, we review the whole record in the light most favorable to the judgment for substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that any rational trier of fact could find the appellant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) “[We] presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) If the circumstances reasonably justify the jury’s findings, a contrary finding reasonably reconciled with the circumstances does not warrant reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 933; In re George T. (2004) 33 Cal.4th 620, 631.) “[F]or it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403.)
B. Discussion
Making a criminal threat under section 422 comprises five elements the prosecution must prove. Appellant contends the prosecution failed to sufficiently prove the necessary element that the threat caused Colby to be in sustained fear for his safety or for his immediate family’s safety. (Toledo, supra, 26 Cal.4th at p. 228.) A jury can properly consider a defendant’s prior and subsequent conduct, as well as the victim’s conduct after the incident, in evaluating whether a victim reasonably suffered sustained fear arising from a defendant’s threat. Based on the evidence presented, we find a lack of substantial evidence to support a finding that Colby was in sustained fear for purposes of section 422.
Section 422 states in pertinent part: “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, ... is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished....”
(1) The defendant willfully threatened to commit a crime that would result in death or great bodily injury; (2) the defendant made the threat with the specific intent it be taken as a threat; (3) the threat, on its face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate and specific as to convey a gravity of purpose and an immediate prospect of execution of the threat; (4) the threat caused the victim to be in sustained fear for his or her own safety or for his or her immediate family’s safety; and (5) the victim’s fear was reasonable. (§ 422; People v. Toledo (2001) 26 Cal.4th 221, 227-228 (Toledo).)
As used in section 422, “sustained” has been defined to mean “a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156 (Allen).) Furthermore, “[t]he victim’s knowledge of defendant’s prior conduct is relevant in establishing that the victim was in a state of sustained fear. [Citation.]” (Ibid.) The Allen court found that “[f]ifteen minutes of fear of a defendant who is armed, mobile, and at large, and who has threatened to kill the victim and her daughter, is more than sufficient to constitute ‘sustained’ fear for purposes of this element of section 422. [Fn. omitted.]” (Ibid.)
In Allen, the defendant had previously broken into the victim’s daughter’s home and repeatedly stalked and assaulted the victim’s daughter. The victim had also, on previous occasions, notified the police about defendant’s conduct. The defendant had been going by the victim’s house on multiple occasions earlier that day, and had a practice of looking inside the victim’s home. (Allen, supra, 33 Cal.App.4th at pp. 1155, 1156.) He approached the victim’s back door and threatened to kill the victim and her daughter while brandishing a gun he pulled from his pants. The victim subsequently called the police, who arrested the defendant within fifteen minutes. (Id. at p. 1156.).
More recently, in People v. Fierro (2010) 180 Cal.App.4th 1342, the court found that even the most immediately surrounding circumstances constituted a prior history between the defendant and victim, supported a finding that the victim was in sustained fear. (Id. at p. 1348.) There, the victim and his son were at a gas station when they got into an altercation with the defendant, whom they had never previously met. The defendant appeared to drive off, but then circled back around. The victim attempted to leave the premises, but before he could, the defendant confronted the victim and his son in their car, displayed a weapon in his waistband to them while yelling obscenities, and threatened to kill them. (Id. at pp. 1345-1346.) This second encounter lasted about a minute, and the threat itself lasted about 40 seconds. (Id. at p. 1349 & fn. 5.) When the victim was finally able to drive away and onto the freeway, he called the police, still scared. (Id. at p. 1346.) Addressing the defendant’s argument that the victim should not have been in fear for the 15 minutes the victim was on the freeway before calling the police, the appellate court noted, “even if we accept [defendant’s] argument, we believe that the minute during which [the victim] heard the threat and saw [defendant’s] weapon qualifies as ‘sustained’ under the statute. When one believes he is about to die, a minute is longer than ‘momentary, fleeting, or transitory.’ [Citation.]” (Id. at p. 1349.)
In addition to considering the prior history between a defendant and the victim, “a jury can properly consider a later action taken by a defendant in evaluating whether the crime of making a [criminal] threat has been committed.” (People v. Solis (2001) 90 Cal.App.4th 1002, 1014 (Solis).) This includes evaluating whether or not the victim was in sustained fear. (See People v. Mendoza (1997) 59 Cal.App.4th 1333, 1342 (Mendoza).) In Mendoza, the victim was a witness against defendant’s brother but was not initially frightened when the defendant told her he was displeased with her testimony at his brother’s preliminary hearing and that he was going to talk to some of his fellow gang members. (Ibid.) Within 30 minutes, however, a member of defendant’s gang parked outside the victim’s house and honked his horn to get her attention. She had prior knowledge of the gang’s practices, and thus was in sustained fear from that point forward, which the court found sufficiently met the sustained fear element. (Id. at pp. 1341-1342; see also Solis, supra, 90 Cal.App.4th at p. 1014.)
In contrast to these cases, the facts before us fail to offer sufficient proof of Colby’s sustained fear. (See In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140 [“Clearly, if any experience of fear constitutes a ‘sustained’ experience, then the term is superfluous.”].) The circumstances of the confrontation between the two groups leading up to the stabbing, the later threatening statement, and most importantly, the brevity of time from appellant’s threat with the knife in an apparent effort to stop the fight, to his leaving the scene, demonstrate a lack of substantial evidence supporting a finding Colby reasonably suffered more than momentary, fleeting, or transitory fear. Although appellant is both taller and heavier than Colby, Colby testified that appellant’s presence alone did not affect him and nothing about appellant caught his eye before appellant intervened in Justine and Angie’s scuffle. Less than a minute prior to the threat, Colby saw appellant attempting to break up the fight by lifting his sister off of Angie and throwing her to the ground or into a cement birdbath, leaving her dazed. While Colby testified this caused him fear, the jury concluded appellant’s act against Justine rose only to the level of a simple assault, rather than the originally charged assault with force likely to cause great bodily injury.
After Colby and Rob pinned appellant against the trailer and Colby continually struck him with his fists, appellant pulled out a knife from his pocket and stabbed Rob in the chest. Unaware that Rob had been stabbed, Colby and appellant continued fighting for several seconds before they separated. At this point, appellant, on his knees, a few feet away and unmoving, threatened Colby with the statement: “Do you want to get stuck, too?” Colby quickly kicked appellant away from him. Appellant made no effort to attack or further threaten Colby before he left the scene a matter of seconds later, urged by his wife who made clear she wanted them to have no further involvement in the situation. Colby testified he did not believe appellant would stab him if he stopped fighting, and turned his attention to Rob even before appellant had driven off. Colby made no mention to his close confidant a few days later that he was scared or feared for his safety during the fight, and made no mention to the police who arrived on the scene shortly after the stabbing, and who remained there for several hours, that he had been or remained afraid of appellant. There was no history of animosity between Colby and appellant, who had known each other for several years. We conclude this evidentiary scenario was insufficient to constitute “sustained fear” for purposes of the statute.
We also find insufficient evidence supports an attempted criminal threat conviction. (See In re Sylvester C. (2006) 137 Cal.App.4th 601, 607.) As discussed above, no “‘unintended fortuity’” prevented Colby, or any reasonable person in his circumstances, from suffering sustained fear for his safety, given the brief time frame, appellant’s lack of aggressive history, lack of repetition in action or statement reinforcing the threat, and appellant’s near-immediate departure after the statement. (Ibid.)
II. THE TRIAL COURT HAD NO DUTY TO INSTRUCT THE JURY WITH A DEFINITION OF “INITIAL AGGRESSOR” IN CONNECTION WITH GIVING CALCRIM NO. 3471
A. Factual and Procedural Background
At trial, appellant asserted a theory of self-defense. Appellant testified he thought a “bunch of guys” were fighting him, and he felt something harder than a fist hitting him while he was being held in a choke hold, gasping for air. He had seen a number of people come out of the garage when they had first arrived, and felt outnumbered. He took his knife out only intending to scare his assailants off of him, but it “ended up badly.”
The prosecution rebutted defense’s position with assertions that appellant was the initial aggressor and engaged in mutual combat, negating his right to claim self-defense. In closing arguments, the prosecutor contended appellant was an initial aggressor from the moment he left the house with Angie to go confront Jenny, stating, “it is submitted to you folks that when [appellant] left his house he is in an aggressor status because he is tied to Angie and her aggression, they are coparticipants at that point. When they got to the scene and [he] said he had the [mindset] that this wasn’t going to go good, he is an aggressor. [And] when he stood by and watched Angie actually use physical force and mutual combat with Justine and did nothing, he is acting in that, he is a mutual aggressor and mutual combatant.” The prosecutor also argued that appellant continued to be the aggressor when he picked up Justine and slammed her into the fountain. The prosecutor also stated, “[t]here is no right to self-defense if the defendant provokes a fight or quarrel, ” and went on to argue that appellant was aiding Angie in her fight with Justine.
Defense counsel failed to object to the prosecution’s characterization of an “initial aggressor” during the prosecution’s closing. In his own closing, however, defense counsel drew the jury’s attention to the paragraph in CALCRIM No. 3471 (No. 3471) providing that even if appellant started the fight using non-deadly force, if his opponent responded with sudden and deadly force then appellant had the right to defend himself with deadly force without attempting to stop the fighting first. Defense counsel also reiterated that appellant was not “an aggressor, ” and did not engage in mutual combat, but focused more on the credibility of the prosecution witnesses and determining how much force appellant used against Justine than on providing a counter-definition. In rebuttal, the prosecutor reiterated its position, stating appellant was the “aggressor and initial combatant when he left that house.”
No. 3471, as given to the jurors in written instructions, states: “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 [¶] 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. [¶] 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. [¶] 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.”
During a recess near the end of the trial, prior to closing arguments, the parties discussed jury instructions. Defense counsel objected to No. 3471, contending no evidence supported a finding that appellant was either an initial aggressor or in mutual combat. The prosecutor argued to the contrary. The trial court found, without elaboration, that “some” evidence could support a jury finding that appellant was an initial aggressor or mutual combatant. Defense counsel made no request to modify, alter, or otherwise augment the instruction.
The trial court orally instructed the jurors, and provided them with copies of the jury instructions so they could read along as he went through them. Among the court’s instructions to the jury was CALCRIM No. 200, instructing the jurors to disregard any attorneys’ comments on the law that conflicted with the instructions, and that “[w]ords and phrases not specifically defined in these instructions are to be applied using their ordinary everyday meanings.” The court also instructed the jurors on justifiable homicide--self-defense, as set forth in CALCRIM No. 505, and voluntary manslaughter--imperfect self-defense as set forth in CALCRIM No. 571, as well as specific defenses to the specific counts. The court immediately followed this with No. 3471(right to self-defense--mutual combat or initial aggressor) and No. 3472. (right to self-defense--may not be contrived). The jurors also had the instruction copies during both counsels’ closing arguments.
In orally instructing the jurors with No. 3471, based on the transcript, the trial court appears to have inadvertently omitted the phrase “or who is the initial aggressor” from the opening paragraph of No. 3471, which thus became, “A person who engages in mutual combat has a right to self-defense only if, number one....” The phrase was included in the written instructions, as well as in the copy of the jury instructions designated as read orally to the jurors. We find no prejudicial error for this omission.
The jury deliberated for over two hours before returning its verdict. While in deliberations, the jury requested no clarification on No. 3471, nor did it otherwise submit any questions to the court.
B. Discussion
Appellant contends the prosecution misled the jurors when he asserted in his closing argument a definition of the term “initial aggressor” as used in No. 3471, contrary to the weight of authority and prior versions of the instruction. Appellant argues the trial court thus had a sua sponte duty to clarify the term’s definition when giving the instruction. We conclude the trial court had no duty to define the term. Even assuming further instruction was warranted, we find no prejudicial error and affirm the judgment in this respect.
1. The Trial Court’s Duty
The general rule is that “‘“in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected to the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.]’” (People v. Breverman (1998) 19 Cal.4th 142, 154.) The trial court’s sua sponte duty “comes into play when a statutory term ‘does not have a plain, unambiguous meaning, ’ has a ‘particular and restricted meaning’ [citation], or has a technical meaning peculiar to the law or an area of law [citation].” (People v. Roberge (2003) 29 Cal.4th 979, 988.) This duty also extends to defenses “‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ [Citation.]” (Breverman, supra, 19 Cal.4th at p. 157, original italics.)
Generally, however, “‘a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’ [Citation.]” (People v. Guiuan (1998) 18 Cal.4th 558, 570 (Guiuan).) To the extent appellant is contesting the omission of what amounts to a pinpoint instruction on the crux of his case, such instructions also carry no sua sponte duty. (People v. Gutierrez (2009) 45 Cal.4th 789, 824.) We may, however, review any instruction which affects the defendant’s “substantial rights, ” with or without trial objection. (§ 1259.) “Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim--at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was.” (People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) We review the error under a Watson standard of reasonable probability the defendant would have obtained a more favorable outcome had the error not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Ross (2007) 155 Cal.App.4th 1033, 1054-1055 (Ross).)
Instruction No. 3471 sets forth a prosecution argument in rebuttal to appellant’s defense that he acted in self-defense when he was allegedly attacked by Colby and Rob. The prosecutor argued that since appellate was the initial aggressor, he could not claim self-defense unless there was evidence that he tried to stop fighting, indicated to his opponents his desire to stop fighting and had in fact stopped. Over appellant’s objection, the trial court found that there was sufficient evidence to support giving this instruction, and we agree. (Ross, supra, 155 Cal.App.4th at p. 1054; see also Solis, supra, 90 Cal.App.4th at p. 1014-1015.) As to ambiguity, the term “initial aggressor, ” as appellant points out in his opening brief, has a homogenous foundation: “All of these authorities - the governing statute, the prior versions of the applicable regulations, a leading treatise, and Supreme Court case law - make clear that ‘aggressor’ as used in CALCRIM No. 3471 means assailant.” Appellant asserts, however, the lay meanings of “aggressor” are ambiguous and misleading as applied to No. 3471. We disagree. The multiple dictionary definitions appellant provides, while varying to some degree, all set forth a common definition of an aggressor as one who commits or engages in hostile behavior. (Merriam-Webster’s Collegiate Dict. (11th ed. 2009) p. 25; American Heritage Dict. (4th ed. 2000) p. 33; Oxford College Dict. (2d ed. 2007) p. 23.) Coupled with the word, “initial, ” the lay meaning of “initial aggressor” is the first person who engages in hostile behavior. In our view, this ordinary, everyday meaning does not deviate significantly from the legal definition. (Cf. Ross, supra, 155 Cal.App.4th 1044-1045.) Thus, the trial court had no sua sponte duty to clarify the instruction. (See id. at pp. 1047-1048.)
Instruction No. 3471 correctly states the law as contained in section 197. (People v. Quach (2004) 116 Cal.App.4th 294, 301 [construing CALJIC No. 5.56].) Although objecting to the giving of the instruction on the ground there was insufficient evidence to support it, appellant did not ask the trial court to define initial aggressor for the jury, and jurors expressed no confusion or uncertainty about the meaning of the term. Any further objection was waived. (See Guiuan, supra, 18 Cal.4th at 570; People v. Miceli (1951) 101 Cal.App.2d 643, 649; § 1138.)
Section 197 provides, in pertinent part: “Homicide is... justifiable when committed by any person in any of the following cases: [¶] … [¶] 3. When committed in the lawful defense of such person, ... when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, ... if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed....”
2. Appellant’s Substantial Rights
Even assuming, for the sake of argument, further instruction was warranted, we find no prejudicial error here. The prosecution made no abstract assertion, nor did he imply he was providing a specific legal definition for the jurors, but instead submitted for their consideration the idea that appellant was an initial aggressor from the moment he left his home with Angie and his wife to confront Jenny. “Initial aggressor” was not defined in the instructions. Thus, the jury was to use the ordinary, everyday meaning of the term pursuant to CALCRIM No. 200. No evidence indicates the jurors were confused by the prosecution’s definition. “‘We must... assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]’…” (People v. Yoder (1979) 100 Cal.App.3d 333, 338.)
Even so, the record supports a finding that appellant would have been an initial aggressor under appellant’s proposed definition, and thus his self-defense claim would have remained defeated. Substantial evidence supports a finding that his physical act of pulling Justine away from Angie and tossing her back onto the cement was an initial act of physical aggression, which triggered Colby and Rob’s response. He knew Colby was Justine’s brother and knew Colby was standing nearby and had intervened previously. Thus, it is not reasonably probable the jury would have decided a more favorable outcome had they had a legal definition of initial aggressor in front of them.
DISPOSITION
The judgment of conviction for count 3 (criminal threat) is reversed and the case is remanded for resentencing in accordance with this opinion. In all other respects, the judgment is affirmed.
WE CONCUR: Gomes, Acting P.J., Dawson, J.