Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF019089, Douglas E. Weathers, Judge.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST J.
Appellant and defendant Charles Richard Hampton was charged with inflicting corporal injury upon a spouse (Pen. Code, § 273.5, subd. (a); count 1), dissuading a witness (§ 136.1, subd. (a)(2); count 2), assault by means likely to produce great bodily injury (§ 245, subd. (a)(1); count 3), false imprisonment (§ 236; count 4), and resisting a police officer (§ 148, subd. (a)(1); count 5). A jury found him guilty of the lesser included offense of spousal battery (§ 243, subd. (e)(1)) in count 1, the lesser included offense of simple assault (§ 240) in count 3, and resisting a police officer (§ 148, subd. (a)(1)) in count 5. The trial court dismissed count 2, and the jury found him not guilty of count 4. The court granted defendant probation for a period of 48 months.
All further statutory references will be to the Penal Code unless otherwise noted.
On appeal, defendant contends that the trial court erred in refusing to instruct the jury on the retreat provision of the self-defense instruction (CALCRIM 3470). We affirm.
FACTUAL BACKGROUND
At trial, Jane Doe testified as follows: Doe and defendant had been married over five years when an incident occurred on October 29, 2006. They lived in their home with Doe’s three children. At 6:00 p.m. on October 29, Doe and defendant were watching television in the master bedroom with Doe’s 12-year-old daughter, S. At some point, S. went to her room, and defendant and Doe started arguing about defendant’s job while lying on their bed. Defendant ordered Doe to leave the room, but Doe refused. He then pushed Doe off the bed with his feet. Doe jumped up and started hitting him. Defendant grabbed her around the neck with one hand and told her to stop fighting. The two of them started wrestling while he was holding her by the neck, and they ended up on the bed again, with defendant on top of Doe. As they were wrestling, Doe screamed for help and S. came into the room. S. told defendant to get off of her mother and attempted to grab his arm. She was unable to get his hand off of Doe’s neck, so she grabbed the phone. Doe told S. to call the police, so S. took the phone to her room and called 911. Doe and defendant stopped fighting and fell onto the floor. Both of them got up and went to S.’s room. Doe took the phone from S., listened to the other line, did not hear anything, and hung up. Approximately six minutes later, the police arrived. By that time, defendant was packing his suitcase.
At trial, S. testified as follows: Doe told S. to come into the master bedroom and call 911. When S. got into the room, she saw defendant sitting on top of Doe, with one knee on each side of Doe’s waist and one hand holding her throat. S. tried moving defendant’s arm of Doe’s neck but could not do it. She then called 911.
Officer Timothy McGinnis, one of the officers who responded to the 911 call, also testified at trial. He said that when he entered the house, he saw Officer Bryan Anderson, who had arrived before him, with Doe and S. in the kitchen. Doe seemed upset and scared, and her hands were shaking. S. was upset and had tears in her eyes. Officer McGinnis first interviewed Doe, who told him that she and defendant were yelling at each other when the argument turned physical. Defendant pulled Doe over to the dresser by her hair and pinned her to the dresser with the weight of his body. Then defendant threw her onto the bed and started strangling her with both hands on her neck. Doe told Officer McGinnis that she could not breathe and that she became light headed when defendant was strangling her. S. came into the room and tried to get defendant off Doe but ended up calling 911. During the interview, Doe told Officer McGinnis that defendant pulled some of her hair out, and she opened the kitchen trash and showed McGinnis the hair that was pulled from her head.
We note that at trial, Doe denied telling Officer McGinnis that defendant grabbed her by the hair and dragged her over to the dresser, dragged her around the room by her hair, or pulled hair out of her head. She also denied telling Officer McGinnis that defendant strangled her with both of his hands around her neck, or that he strangled her so hard that she became light headed.
ANALYSIS
The Court Properly Refused to Instruct the Jury on the Retreat Provision of CALCRIM 3470
Defendant argues that the court committed prejudicial error by denying his request to include the retreat provision of the self-defense instruction (CALCRIM 3470), which states, in part: “A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of death/bodily injury/[blank] has passed.” We conclude the court properly denied defendant’s request.
A. Background
Defendant requested the court to include the optional retreat provision of the self-defense instruction. (The retreat provision was in brackets in the written instruction.) He argued the jury was entitled to know that he was not required to walk away or leave once Doe started striking him. The prosecution argued the evidence showed that defendant was the initial physical aggressor, since he started the fight when he kicked Doe off the bed, dragged her by the hair, slammed her against the dresser, or choked her. The prosecution explained that the retreat provision of the self-defense instruction was typically given when a defendant is initially attacked; in such circumstance, the defendant does not have to run away but can stand there and defend himself. The prosecution argued that defendant here was not entitled to retreat. The court denied defendant’s request. The court did, however, instruct the jury with the majority of CALCRIM 3470 on self-defense.
CALCRIM 3470 provides: “The defendant is not guilty of the crimes of inflicting injury on a spouse and the lesser offense of spousal battery, as well as the crime of assault with force likely to produce great bodily injury and the lesser crime of assault, if he used force against the other person in lawful self-defense. [¶] The defendant acted in lawful self-defense if, one, the defendant reasonably believed that he was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully; two, the defendant reasonably believed that the immediate use of force was necessary to defend against that danger; and, three, the defendant used no more force than was reasonably necessary to defend against that danger. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of violence to himself. Defendant’s belief must have been reasonable and he must have acted because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful self-defense. [¶] When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. If the People have not met this burden, you must find the defendant not guilty of the crimes of inflicting injury on a spouse and the lesser offense of spousal battery, as well as the crimes of assault with force likely to produce great bodily injury and the lesser crime of assault.”
B. Defendant Was Not Entitled to the Retreat Provision of the Self-Defense Instruction
Defendant specifically argues he should not have been denied the requested instruction merely because he pushed Doe’s legs over the side of the bed with his feet. He reasons this act was not a harmful or painful contact, but rather a reasonable response to “the quarrel Doe was persistently stoking.” He further asserts that “[c]onsent to some non-harmful touching between married couples is implied from the nature of the relationship.” He then contends that the jury should have been able to consider evidence that Doe was the real aggressor and that he did not have to retreat but could defend himself.
“A trial court has no duty to instruct the jury on a defense—even at the defendant’s request—unless the defense is supported by substantial evidence.” [Citation.]” (People v. Curtis (1994) 30 Cal.App.4th 1337, 1355.) Here, the retreat provision of CALCRIM 3470 was not supported by substantial evidence. Officer McGinnis testified that Doe told him she and defendant were yelling at each other, and the argument turned physical when defendant pulled her by her hair over to the dresser and pinned her to the dresser with the weight of his body. Defendant then threw her onto the bed and started strangling her with both hands on her neck. Doe herself testified that the argument became physical when defendant pushed her off the bed with his feet. She also testified that defendant grabbed her around the neck, and the two of them wrestled. Under either scenario, the evidence showed that defendant was the initial aggressor in the physical altercation. He was clearly not acting in self-defense. Therefore, there was no evidence to support the instruction that defendant was not required to retreat, or that he was entitled to stand his ground and defend himself.
Assuming arguendo that the court should have given the retreat provision of CALCRIM 3470, any error was harmless. The jury was given the majority of the self-defense instruction (CALCRIM 3470), which stated, “The defendant is not guilty of the crimes of inflicting injury on a spouse and the lesser offense of spousal battery, as well as the crime of assault with force likely to produce great bodily injury and the lesser crime of assault, if he used force against the other person in lawful self-defense.” The instruction explicitly defined “lawful self-defense.” Furthermore, the jury was told that the People had the burden of proving beyond a reasonable doubt that defendant did not act in lawful self-defense. In addition, it was instructed that “[a] person who engages in mutual combat or who is the first one to use physical force has a right to self-defense only if, one, he actually and in good faith tries to stop fighting; two, he indicates by word or 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, three, he gives his opponent a chance to stop fighting.” In view of these instructions, defendant would not have achieved a more favorable outcome if given the requested retreat provision, since he was the initial aggressor, and there was no evidence that he stopped fighting. The jury clearly determined that defendant had no right to self-defense, and found him guilty of spousal battery and assault.
Defendant argues that “the jury should have been able to consider evidence indicating that [Doe] was the real aggressor in this altercation and that [he] did not have to retreat . . . .” However, the jury considered all the evidence, and there was no evidence that Doe was “the real aggressor.” The undisputed evidence showed that defendant was the first one to use physical force, since he pushed Doe off the bed with his feet. Defendant’s claim that “[c]onsent to some non-harmful touching between married couples is implied from the nature of the relationship” is irrelevant, since there was no evidence that Doe consented to him kicking her off the bed.
In light of the undisputed facts and the instructions that were given, defendant was not prejudiced by the court’s refusal to give the requested jury instruction.
DISPOSITION
The judgment is affirmed.
We concur RAMIREZ P.J., MILLER J.