Opinion
NOT TO BE PUBLISHED
Santa Clara County Super.Ct.No. EE806411
Duffy, J.
A jury convicted the defendant herein, Jermaine Randy Howard, of two crimes of assault. He claims that the trial court erred in failing to give clarifying instructions on mutual combat. We disagree and will affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
I. Convictions and Sentence
Defendant was charged by information. The jury found him guilty of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) against Steve Read, a felony, and the battery (§§ 242, 243, subd. (a)) of Read, a misdemeanor.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant received a sentence of three years in prison on the felony conviction. The trial court sentenced him to 10 days’ custody on the misdemeanor conviction and ordered him to serve it concurrently with the felony term.
II. Facts
The victim, Steve Read, managed the Hiphugger, a bar in Sunnyvale; he also served as a bouncer for the establishment. Defendant was a patron of the club one night. When Read demanded that defendant leave the premises, the confrontation escalated into two fights separated in time by defendant’s departure and return.
A. Prosecution Case
Read testified that one of the bar’s dancers complained to him that defendant was behaving in an unseemly manner. Read watched defendant and agreed that he was conducting himself in an “obnoxious” fashion. He approached him and asked him to leave. Defendant was offended but complied to the extent of leaving his seat and walking toward the front door. Read escorted him to the front door without touching him. When they reached the threshold, defendant “hit me and put his hand on me and grabbed me.” Defendant exited the establishment and Read, applying ice to a black eye defendant had given him, resumed work.
Sometime later, at closing time, defendant and three male confederates returned to the Hiphugger in a fast-moving four-door automobile. The doors sprang open and the men emerged. Some of them, and perhaps all of them, were wearing bandanas to mask their faces. The men, including defendant, assaulted Read. Read, now further injured, retreated and barricaded himself inside the premises.
Donald Steinfeld, another bar patron on the night of the incidents, provided testimony that corroborated Read’s in most aspects. “Read had received some blows to the head as he was taking him out to the door, and when he got to the door,... he just kind of pushed him out.” “As Mr. Read was pushing him out, the defendant was still swinging....” When the masked men returned to the parking lot, defendant punched Read several times without provocation. “Read was just getting pummeled” by defendant and his three cohorts.
Steinfeld’s testimony differed in certain respects from that of Read, however. He testified that after Read asked defendant to leave, defendant raised his fists as if to begin a fight, and at that point Read “grabbed the defendant” by the arm “and started physically moving him from the bar.” Steinfeld also perceived that Read wanted to follow defendant into the parking lot. “I was kind of holding him back from going out there, but... I don’t think he was really trying to get there. I just put my hand out, and that was enough to keep [Read] from going out into the parking lot.”
Joseph Gomes, another bar patron and the husband of one of its employees, also provided testimony that corroborated Read’s in material respects. Like Steinfeld’s, his recollection was different in some respects from Read’s. Gomes remembered defendant pushing Read after Read told him to leave, so Gomes physically restrained defendant and he and Read grabbed defendant and pulled him toward the door. “The first touch [was] when [defendant] pushed [Read] with both hands.” After Gomes pushed defendant out the front door, Read wanted to follow defendant outside, but Gomes held Read back, commenting to Read that defendant was larger than him. Read relented; instead he and defendant exchanged insults. Read directed a notorious racial epithet at defendant, who is African-American, and defendant came back inside and punched Read. Gomes pushed defendant out the door for the second time. Once outside again, defendant said he would return in order to continue the fight. Gomes did not witness defendant’s later return and the resumption of fighting that occurred then.
B. Defense Case
Defendant testified that, to his surprise, Read pulled him off his bar stool and told him he had to leave. He had been with a friend, Daniel Murrell, and had been conducting himself properly since arriving. He had had only a brief and innocuous conversation with a woman in the bar. Defendant was concerned about the suddenly tense atmosphere in the bar, and he and Murrell agreed to leave. At the door Read and defendant traded insults. Read attempted to pull him out through the door by reaching for his arm. This did not faze defendant—“I’m going along with them like, you know, whatever”—but then “somebody pushed me real hard” and “somebody punched me upside my head,” causing defendant to stumble outside. At that point defendant “just got outraged,” walked back to Read, who was speaking with others in the gathered crowd, and “just punched him in the face.” A fight ensued that involved a number of individuals. Some of these individuals directed against defendant the same notorious racial epithet that targets African-Americans. At that point defendant was “so mad like the veins is busting out of my head.... I’m really just hot all the way around.”
Defendant departed in a car with three friends who had not accompanied him into the bar. They soon returned, but not with masked faces. Defendant was interested primarily in finding his missing cell phone earpiece, which he believed he had lost in the parking lot during the prior altercation. One of defendant’s friends called the car occupants’ attention to someone outside the premises. Defendant fumbled with his car keys after the others had exited the automobile; when he got to the bar’s front door he saw a man lying on the ground. The door opened, Read emerged, “and I just started punching.” Defendant did this because “I was still enraged from the incident earlier.” Another melee broke out, again with a number of individual participants, including Read, who “was punching” while “I’m punching at him.” Defendant thought that everyone involved in the first incident was a bouncer for the club, and defense counsel asked defendant, “Were you there to beat up every bouncer?” during the second incident. Defendant replied, “If I could have, yes.”
On the cross-examination of defendant, the prosecutor asked if he had “start[ed] attacking Mr. Read” on returning to the premises, and defendant answered “Yes.” Read answered defendant’s attack by landing his own blows; “it wasn’t just like he just stood there and I just punched him in the face. It was a fight. He was swinging back....” Defendant agreed with the prosecutor that the fight ended when “you had done what you wanted to do, and then you decided to stop?” Defendant also agreed that he had started the fight with Read on returning to the Hiphugger.
Murrell also testified. He was with defendant at the Hiphugger on the night of the incidents. Read asked both of them to leave. The atmosphere in the bar grew tense and a melee erupted as the two patrons reached the front door. Murrell could not tell who initiated physical contact between Read and defendant.
A police officer testified that after being arrested defendant told him that he was the victim of the fighting that had taken place.
DISCUSSION
Defendant claims that the trial court had a sua sponte duty to define mutual combat when giving instructions on count 3, the battery charge (§§ 242, 243, subd. (a)). Count 3 applied only to the first incident, in which Read escorted defendant out of the bar and defendant gave Read a black eye, and not to the second incident, in which defendant and his companions returned to the bar in a vehicle and a fight ensued.
The trial court instructed the jury on self-defense, limiting that instruction to the information’s battery accusation. It recited, “To prove that the defendant is guilty of [battery] the People must prove that, one, the defendant willfully, unlawfully touched Steve Read in a harmful or offensive manner; and two, the defendant did not act in self-defense.” It instructed that the People bore this burden of proof under the beyond a reasonable doubt standard. It further recited, in language taken from CALCRIM No. 3471, that “A person who engages in mutual combat or who is the first one to use physical force has the right to self-defense only if: one, he actually and in good faith tries to stop fighting; and two, 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 three, he gives his opponents a chance to stop fighting. If a person meets those requirements, he then has a right to self-defense if the opponent continues to fight.”
Defendant does not complain on appeal of the giving of the mutual combat instructions, even though he argues at one point that he and Read “did not engage in ‘mutual combat’....” Rather, he claims that because the trial court did not define, on its own initiative, the legal meaning of mutual combat, it infringed on his rights under the due process provisions of the Fifth and Fourteenth Amendments to the United States Constitution and the Sixth Amendment’s guaranty of a right to a jury trial, along with their equivalents in the California Constitution. He maintains that because mutual combat has a technical legal meaning that differs from the meaning uninformed jurors might assign to the term, he was entitled to a sua sponte definition setting forth the legal meaning of mutual combat. (See People v. Griffin (2004) 33 Cal.4th 1015, 1022-1023; People v. Adams (2004) 124 Cal.App.4th 1486, 1493.) He fears that the jurors mistakenly might have thought that mutual combat involved only any contemporaneous exchange of blows, whereas legally the concept applies only when each combatant has decided to fight before the fight begins.
The parties debate the technical meaning of mutual combat and the extended discussion of that area of law set forth by this court in People v. Ross (2007) 155 Cal.App.4th 1033.
Mutual combat requires not just fisticuffs (see People v. Ross, supra, 155 Cal.App.4th at p. 1044) but the participants’ “prearrangement to fight” (id. at p. 1046), i.e., “mutual intention, consent, or agreement preceding the initiation of hostilities” (id. at p. 1045). Mutual combat is mutually unlawful. The law does not view two people’s mutual combat as offsetting and therefore excusable or justifiable because neither participant is a worse offender. Rather, “both participants are guilty of criminal assault” (People v. Lucky (1988) 45 Cal.3d 259, 291); their agreement to fight “lacks... a lawful object” (Ross, supra, at p. 1047).
Contrary to defendant’s contention, nothing in Ross compels the conclusion that a trial court has a sua sponte duty to define mutual combat, and defendant has not called our attention to any other decision that does. Nor need we decide that question in this case, because, as defendant recognizes at one point in his opening brief, there is no evidence in this record that mutual combat occurred. At most, there was evidence that Read steered defendant toward the bar’s front door in a physical manner by taking him by the arm to lead him out. But there is no evidence that Read intended to fight, only to escort.
Defendant was outraged by a feeling of unfair treatment and, according to one version of the evidence, physical aggression inflicted on him near the bar’s front door by a person he could not see. Without knowing whether Read was involved, he attacked Read, who was only speaking with others in the bar at that moment and was not in a fighting stance. This conduct constituted battery and mutual combat was not at issue. The jury properly returned a battery conviction against defendant, and given the lack of evidence of mutual combat we need not decide whether a trial court is required to define the concept sua sponte.
Evidence that defendant’s assaultive conduct was prompted by racial insults uttered by Read or others at any time during the initial incident is immaterial. Insulting words alone do not legally justify or excuse an attack. (People v. Davis (1995) 10 Cal.4th 463, 542-543.)
We expect, moreover, that the question is not likely to arise in the future. The CALCRIM instructions now permit the trial court to instruct, when the facts justify it, that “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.” (CALCRIM No. 3471.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P. J., McAdams, J.