Opinion
A166514
10-16-2023
THE PEOPLE, Plaintiff and Respondent, v. VINCENT JACOBO, Defendant and Appellant.
NOT TO BE PUBLISHED
(San Francisco City &County Super. Ct. Nos. SCN 231345 & CRI13029231
CHOU, J.Defendant Vincent Jacobo appeals his conviction for second degree murder, contending the trial court erred by giving CALCRIM No. 3471 (CALCRIM 3471). CALCRIM 3471 addresses the scope of the right to self-defense when a defendant engages in mutual combat or starts a fight. We disagree with Jacobo and affirm.
FACTS
A. History of Conflict Between Jacobo and White
Mary H. has lived on Valencia Street for the last 45 years. In 2013, she lived there with Isidor H., her son, Maurice White, her grandson and the victim, Jacobo, and several others, including her grandchildren. Isidor H. and Jacobo were friends, and Isidor H. invited Jacobo to stay with him in his room at Mary H.'s home several years earlier because Jacobo was about to be unhoused.
White, who was 28 at the time of his death, was six feet one inch tall and weighed 238 pounds. He used drugs and had a tattoo on his neck that stated: "Hood Certified, Turf Tested." Witnesses testified that White never owned or used a gun.
Like White, Jacobo used drugs. He also drank a lot. Jacobo had a bad temper, often got into arguments. He had prior convictions for robbery and a serious felony involving the use of a firearm. There was also evidence that Jacobo sold guns and possessed ammunition.
White and Jacobo often argued and got into a couple of physical altercations. For example, White and Jacobo got into a fight over Jacobo's actions toward one of the young children living in the house about one or two years before White's death. After they both threw punches at each other, Jacobo's face was bruised. And a few weeks to a month before his death, White complained to Jacobo about his work on Isidor H.'s car and told Jacobo to stop doing that work. Jacobo threw a punch at White, and White pushed Jacobo down the stairs. Jacobo then threatened to get a gun and shoot White.
B. White's Murder
On the evening of October 13, 2013, White was in his room, fixing his bicycle. Jacobo was not at home. The next day, White left the house between 3:00 and 4:00 a.m.
At approximately 3:47 a.m., Jacobo sent White a text message, telling him that Jacobo was "[d]own by Folsom Park. Still waiting." A little later, Jacobo sent White another text message, telling him: "We can still work dude for eight or a quarter." At 4:24 a.m., Jacobo texted White again, writing: "Coming up 21st Street and Mission, Bartlett." One minute later, Jacobo sent a last text message to White, telling him that: "Dude got spooked". White read all of Jacobo's text messages.
White was using Isidor H.'s phone that morning.
Video footage of the area showed White riding his bicycle northbound towards 21st Street early that morning. He met Jacobo at approximately 4:36 a.m., and they walked together toward Bartlett Street. Video footage then showed White dropping his bike and running, and Jacobo chasing White into Bartlett Street. White fell down, got up, and continued running with Jacobo chasing him. White left a trail of blood as he was running.
The police obtained video footage from businesses in the area where White's body was found. Mary H. and Sergeant Adam Shaw identified Jacobo from still photographs taken from that video footage.
Several neighbors were awakened by gunshots at the time White was killed. James V., who lived on Bartlett Street, was awakened by gunshots around 4:30 a.m. He heard approximately five shots, followed by a one second pause, and then two additional shots. After the gunshots, he heard someone moan or scream about being shot. James V. then looked out the window and saw a bicycle but no people, and called 911.
Jody B. and James M. lived together on Bartlett Street. At approximately 4:37 a.m., they were both awakened by gunshots. Jody B. heard "two loud noises followed by a pause [of less than minute] and then a couple more." She also heard "yelling" in what appeared to be an argument. James M. heard up to seven gunshots with some "pauses in between."
Michelle V. lived on Bartlett Street. Around 4:30 a.m., she was awakened by two men arguing, followed by the sound of three or four gunshots and somebody speaking. She looked out the window, and saw a bicycle lying on the sidewalk.
C. The Police Investigation
Officer Antonio Balingit received a call from dispatch around 4:37 a.m. on October 14, 2013, about gunshots fired in "the area of 22nd and Bartlett Street"-a "high crime" area with gang activity. He arrived on the scene at approximately 4:41 a.m. and "saw [White] lying face down on the ground in the middle of Bartlett Street." He and his fellow officers turned White over and attempted to perform CPR but White was declared dead at the scene at 4:48 a.m.
After White's body was moved, the police discovered a plastic bag with white powder next to his foot. A spent .25 caliber shell casing also rolled out from underneath his body. Upon searching the area, the police discovered four additional spent .25 caliber shell casings and a 9mm simunition or blank. The 9mm simunition was found "partially buried in the detritus of the gutter" on Bartlett Street. All five .25 caliber shell casings found in the area near White's body were fired from the same gun. The 9mm simunition, which was rusted, appeared older and more worn than the .25 caliber shell casings and was fired from a different gun. The police also found in the same area where they found the shell casings White's "bicycle on the sidewalk very nearby" and the cell phone White was using. The police did not, however, discover any weapons.
White had five visible gunshot wounds on his body: one on the left side of his neck, one on his upper right arm, two on his back, and one on his left buttock. The wound on the left side of White's neck resulted from a shot at "intermediate range"-i.e., "some inches or feet" away. The trajectory of the bullet that caused the wound on White's neck was "downward", indicating that the killer stood above White. The other four gunshot wounds came from "distant" shots-i.e., "many feet to yards or greater" away. All five gunshot wounds appeared "fresh", and White died from those wounds. White also had scrapes or abrasions on his knees and right hand and a recent contusion on the right side of his scalp.
Six bullets were recovered from White's body. The five .25 caliber bullets linked to the fresh gunshot wounds on White's body had been fired from the same gun. The other bullet-a .38/.357 round that was blackened- appeared to have been inside White's body for "a long period of time" and was fired from a different gun.
D. Jacobo's Arrest
The police arrested Jacobo between 5:30 p.m. and 5:40 p.m. on October 14, 2014. The police seized Jacobo's phone and collected his clothing and shoes. DNA from the bloodstains on Jacobo's shoes matched DNA from White's blood.
E. An Additional .25 Caliber Shell Casing
On November 16, 2013-over a month after White's death-Michelle V. and her partner were cleaning up the sidewalk by her home and found a .25 caliber shell casing amidst garbage that had accumulated near the base of a tree. She gave the shell casing to the police. The shell casing appeared to be "potentially" associated with the five .25 caliber shell casings previously discovered at the scene of White's death.
F. Procedural History
In May 2019, plaintiff and respondent the People of the State of California (People) filed an information charging Jacobo with murder (Pen. Code, § 187, subd. (a)) and illegal possession of a firearm by a felon (§ 29800, subd. (a)(1)). As to the murder count, the information alleged that Jacobo personally and intentionally discharged a firearm, which caused great bodily injury. (§ 12022.53, subdivision (d).) As to the firearm possession count, the information alleged that Jacobo suffered from two previous strikes. (§§ 667, subds. (d) &(e); 1170.12, subds. (b) &(c).)
All further statutory references are to the Penal Code.
During his trial, Jacobo admitted his two prior strikes. Following the trial court's dismissal of the first-degree murder allegation at the request of the People, the jury found Jacobo guilty of second-degree murder and illegal possession of a firearm. The jury also found true the allegation that Jacobo intentionally discharged a firearm, causing great bodily injury. The court sentenced Jacobo to 70 years to life in state prison.
Jacobo timely appealed.
DISCUSSION
CALCRIM 3471 states in relevant part that: "A person who engages in mutual combat or who 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; [¶] AND [¶] 3 He gave his opponent a chance to stop fighting. [¶] If the defendant meets these requirements, then he 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. [¶] A fight is mutual combat when it began or continued by mutual consent or agreements That agreement may be expressly stated or implied and must occur before the claim to self-defense arose." Jacobo contends the trial court erred by giving that instruction. We disagree.
A. Relevant Facts
During discussions with counsel about the jury instructions, the trial court stated its intention to instruct the jury on self-defense and imperfect self-defense. In response, the People requested CALCRIM 3471. Over Jacobo's objection, the court granted the People's request. As a result, the court instructed the jury with CALCRIM 3471, in addition to it instructions on self-defense and imperfect self-defense (CALCRIM Nos. 505 &571).
On May 25, 2022, the jury began its deliberations. On June 2, 2022, the jury alerted the trial court that it could not agree on whether Jacobo "is guilty of first degree murder." The court excused one of the jurors for cause that same day and replaced that juror with an alternate. The next day, the court excused a second juror for cause and replaced that juror with another alternate.
On June 6, 2022, the jury again alerted the trial court that it could not agree on the first-degree murder count. To assist in its consideration of that count, the jury asked the court: (1) "[i]f possible, can counsel present material on the issue of reasonable doubt concerning the distinctions between 1st degree and second degree" murder; (2) to provide "verbal and written instructions/definitions of reasonable doubt, preferably in layman's terms, which will underscore the importance of this concept"; and (3) to provide illustrative examples of reasonable doubt. In response, the court allowed counsel to present additional argument on the difference between first- and second-degree murder and the reasonable doubt standard.
After both sides presented additional argument to the jury the next day, the jury asked the trial court: "Does second degree [murder] include malice?" The court responded in writing that: "The required elements of second-degree murder are described in Instruction 520. One required element is that '[w]hen the defendant acted, he had a state of mind called malice aforethought,' which is defined in Instruction 520." Later that same day, the jury found Jacobo guilty of second-degree murder and found true the allegation that he discharged a firearm, which caused great bodily injury.
B. Analysis
Jacobo argues that no substantial evidence supported the giving of CALCRIM 3471 (People v. Wilson (2005) 36 Cal.4th 309, 331) and that this instructional error was prejudicial. We reject both arguments.
1. Initial Aggressor
First, there is substantial evidence that Jacobo started a fight with White. Jacobo had a bad temper and held grudges. Just a few weeks to a month before he killed White, Jacobo had threatened to get a gun and shoot White. On the day of the murder, Jacobo, by suggesting a possible drug deal, persuaded White through text messages to leave home early in the morning and meet Jacobo. There was no evidence that White had any weapons on him, and the video footage showed Jacobo chasing White from behind as he tried to run away. Finally, Jacobo shot White multiple times from behind, and there was no evidence that Jacobo suffered any injuries from his encounter with White. This evidence is more than sufficient to support a finding that Jacobo started the fight with White.
In reaching this conclusion, we reject Jacobo's argument that CALCRIM 3471 may only be given if there is evidence of mutual combat-and not if there is evidence that the defendant was the initial aggressor. CALCRIM 3471, by its express terms, applies whenever the defendant engages in mutual combat or starts a fight. (See People v. Johnson (2009) 180 Cal.App.4th 702, 711 ["CALCRIM No. 3471 charges a jury to make a preliminary determination of whether the defendant had the right to use force to defend himself when the defendant and the victim engaged in mutual combat, or when the defendant was the initial aggressor," italics added and in original].) In doing so, CALCRIM 3471 comports with the well-established principle that self-defense" 'may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical attack or the commission of a felony), has created circumstances under which his adversary's attack or pursuit is legally justified.'" (People v. Enraca (2012) 53 Cal.4th 735, 761.)
People v. Ross (2007) 155 Cal.App.4th 1033, does not suggest otherwise. In Ross, the only issue was whether "the trial court erred by instructing the jury on the doctrine of 'mutual combat' as it affects a plea of self-defense." (Id. at p. 1041.) It did not consider whether CALRCIM 3471 also applied when the defendant is the initial aggressor. Accordingly, substantial evidence supported the giving of CALCRIM 3471 under the theory that Jacobo was the initial aggressor.
2. Mutual Combat
There is also substantial evidence that Jacobo and White engaged in mutual combat. The evidence at trial established that Jacobo and White had a history of conflict, including at least two verbal arguments in the recent past that led to physical altercations. And from their last fight-which occurred just a few weeks to a month before White's death and ended with an unsettled threat by Jacobo to shoot White-it is reasonable to infer that Jacobo and White were resuming that fight at the time of White's death. Indeed, there was evidence that Jacobo and White were verbally arguing before Jacobo shot him. Thus, "the jury could reasonably find that both [Jacobo and White] actually consented or intended to fight before the claimed occasion for self-defense arose." (People v. Ross, supra, 155 Cal.App.4th at p. 1047, italics omitted.) Accordingly, substantial evidence supported the giving of CALCRIM 3471 under the theory of mutual combat.
3. Prejudice
Even if the trial court erred by giving CALCRIM 3471, the error was not prejudicial.
As a threshold matter, giving an instruction not supported by substantial evidence does not require review under the Chapman test for federal constitutional error. (See Chapman v. California (1967) 386 U.S. 18, 24.) Although such an instruction "should not be given" (People v. Ross, supra, 155 Cal.App.4th at p. 1050), it "is generally' "only a technical error which does not constitute ground for reversal" '" (People v. Cross (2008) 45 Cal.4th 58, 67). As a result, prejudice resulting from this type of error is measured by the Watson test. (People v. Guiton (1993) 4 Cal.4th 1116, 1130.) And reversal is only warranted if there is a reasonable probability the jury relied on CALCRIM 3471 in rejecting Jacobo's self-defense claim. (See People v. Campbell (2020) 51 Cal.App.5th 463, 493.)
No such probability exists here. If, as Jacobo contends, there was no evidence that he started a fight or that he and White engaged in mutual combat, then the jury "would . . . presumably [have] ignore[d]" CALCRIM 3471. (People v. Ross, supra, 155 Cal.App.4th at p. 1056.) Indeed, the trial court instructed the jury that: "Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume that because I give a particular instruction that I am suggesting anything about the facts. • After you have decided what the facts are, follow the instructions that do apply to the facts as you find them." Jacobo also points to nothing in the record suggesting that the jury applied CALCRIM 3471. Because Jacobo does not dispute that the trial court otherwise correctly instructed the jury on self-defense and imperfect self-defense or that the jury rejected those defenses based on those correct instructions, there can be no prejudice here.
In any event, the evidence against self-defense or imperfect self-defense was overwhelming. "[S]elf-defense rules require the defendant to stop using force when the danger of an attack or unlawful touching no longer exists." (People v. Clark (2011) 201 Cal.App.4th 235, 251, fn. 12; CALCRIM 3474 ["The right to use force in (self-defense/ [or] defense of another) continues only as long as the danger exists or reasonably appears to exist. [When the attacker (withdraws/ [or] no longer appears capable of inflicting any injury), then the right to use force ends"].) Here, video footage showed White trying to run away while Jacobo chased him with a gun. During the chase, White was bleeding presumably from some gunshot wounds. Jacobo shot White five times. At least three of those shots hit White in the back or buttocks, and one of the shots-which was fired only inches or feet away from White-struck White in the neck at a downward trajectory, strongly suggesting that White was not standing when that shot was fired. Finally, there were no weapons found on White or near the scene of his death, indicating that he was not armed. Based on this evidence, there is no reasonable probability that a jury would have credited Jacobo's claims of self-defense or imperfect self-defense even if CALCRIM 3471 had not been given.
That the jury struggled in deciding between first-degree and second-degree murder does not compel a contrary conclusion. Neither the jury's notes or questions nor the length of their deliberations suggests that the jury was wrestling with Jacobo's claims of self-defense or imperfect self-defense. Accordingly, any instructional error was harmless.
DISPOSITION
The trial court judgment is affirmed.
We concur. JACKSON, P.J. BURNS, J.