Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Super.Ct.No. FVA801272 Ingrid Adamson Uhler, Judge.
Dacia A. Burz, 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, Gary W. Brozio and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
A jury found defendant Carl Bently Marion II guilty of second degree murder. (Pen. Code, § 187, subd. (a).) The jury found true the allegations that defendant (1) used a firearm during the commission of the murder (§ 12022.53, subd. (b)); (2) personally and intentionally discharged a firearm during the commission of the murder (§ 12022.53, subd. (c)); and (3) personally and intentionally discharged a firearm proximately causing the death of the victim (§ 12022.53, subd. (d)). The trial court sentenced defendant to state prison for an indeterminate term of 40 years to life. Defendant contends that the trial court incorrectly instructed the jury on the laws pertaining to self defense and mutual combat. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. PROSECUTION
We begin by presenting the prosecution’s version of the events. On July 19, 2008, Tyais Garrett (Garrett) was engaged to marry defendant, and was pregnant with defendant’s child. Garrett lived in an apartment in Fontana, with her six-year-old child and her mother. On the morning of July 19, defendant and Garrett argued in Garrett’s apartment. During the argument, Garrett returned her engagement ring to defendant. Garrett told defendant that she no longer wanted to marry him. Garrett then left her apartment and went to a laundromat in Rialto. Defendant met Garrett at the laundromat and apologized to her. Garrett told defendant that she did not want to talk to him, and she left defendant at the laundromat.
Garrett went to a grocery store in order to buy supplies for a barbeque, which she planned to host to celebrate her birthday and her brother’s (the victim’s) birthday. Garrett’s and the victim’s immediate family and friends were invited to the birthday barbeque. When Garrett arrived at her apartment, several friends and relatives had already arrived for the barbeque. When defendant returned to Garrett’s apartment, he was accompanied by the victim, the victim’s wife, and the victim’s seven-year-old son.
Garrett asked defendant to start barbecuing, but defendant was still upset with Garrett. Defendant said that he planned to leave and go to his mother’s house in Apple Valley. Defendant packed his clothes, shoes and books. He made several trips in and out of Garrett’s apartment while packing his belongings. On one of defendant’s trips into the apartment, he threw a laptop computer onto a linoleum floor, which broke the computer into pieces. Defendant then exited the apartment. After a few seconds, Garrett exited the apartment to retrieve her house and vehicle keys from defendant. The victim followed his sister outside. Garrett saw defendant removing his property from her vehicle. Garrett asked defendant for her keys. Defendant refused to return the keys. Garrett again asked for her keys, but defendant did not respond. Garrett then reached over defendant to take her keys.
As Garrett reached over defendant, defendant stepped off the vehicle’s running board and grabbed Garrett around her throat with one hand. Garrett pushed defendant’s hand away. The victim then began punching defendant with his fist. The victim struck defendant’s face and body. Defendant backed away from the victim, towards the parking lot. The victim told defendant that defendant was “being a punk.” Defendant was angry. Garrett tried to separate the two men by stepping between them. Garrett told defendant to leave, and told the victim to go inside the apartment. Defendant continued to move backwards, through the parking lot area. The victim followed defendant and spoke harshly to him, but the victim stopped hitting defendant. Eventually, the victim returned to the curb, where Garrett was standing.
As Garrett stood next to the victim on the curb, facing defendant, Garrett heard the first gunshot. Garrett saw defendant shooting the gun. Garrett said to the victim, “‘Let’s go. Let’s go, ’” and the two turned around. When the victim and Garrett turned around, their backs were to defendant. More gunshots were fired, and then the victim fell face forward onto the ground. Defendant “kept on saying that he loved [Garrett].” Garrett ran towards her apartment yelling that defendant shot the victim.
The victim suffered 10 gunshot wounds. Nine of the bullets entered the backside of the victim’s body. Only one gunshot wound was immediately fatal-the shot to the back of the victim’s head. When Fontana Police and paramedics arrived, the victim did not have a pulse.
Defendant left the crime scene. A San Bernardino County Sheriff’s Deputy found defendant on the same day as the shooting. Defendant drove away from the deputy. After a pursuit, defendant was arrested in Colton. A semiautomatic handgun was found on the driver’s seat of defendant’s car. The punches from the victim resulted in defendant suffering a cut on his lip, a small puncture wound on his left pinky finger, and a small cut on his right hand.
B. DEFENSE
We now present defendant’s version of the events. When Garrett reached over defendant to take her keys, she also took defendant’s keys. Defendant stepped off the vehicle’s running board, pushed Garrett back, and then took his keys from her. The victim then began hitting defendant. Defendant backed away from the victim. Garrett tried to separate the two men. While punching defendant, the victim said to defendant, “‘You aren’t leaving. Who [do] you think you are? I’ll kill you. I’ll kill you. You aren’t leaving. You can’t leave.’” Defendant said to the victim, “‘I don’t want to fight you.’” Defendant continued to back away from the victim, but the victim followed after defendant.
When the victim stood on the curb, or sidewalk area, next to Garrett, defendant faced the victim and Garrett and walked backwards-away from the victim. Defendant saw the victim reach under his shirt. Defendant thought that the victim was going to kill him. Defendant took a gun from the bag he was holding and shot it approximately 10 times. The victim was turning away from defendant as defendant shot the gun. Defendant felt scared, not angry, during the incident. After defendant stopped shooting, the victim took several steps and then fell to the ground. Defendant felt shock and disbelief when the shooting ended. The victim’s punches resulted in an injury near defendant’s eye and a cut on defendant’s lip. Defendant did not receive medical treatment for his injuries.
During closing arguments, defendant’s trial attorney argued that defendant should be found guilty of voluntary manslaughter pursuant to two theories: (1) heat of passion, and (2) imperfect self defense.
DISCUSSION
A. CALCRIM NO. 3471
CALCRIM No. 3471 instructs the jury that a person who is an initial aggressor in a combative situation may claim 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. (§ 197.)
Defendant contends that the trial court erred by omitting the following paragraph from CALCRIM No. 3471: “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.” Defendant asserts that the trial court erred because substantial evidence supports a finding that the victim responded to defendant with sudden and deadly force. We disagree.
“A trial court is required to instruct sua sponte on any defense, including self-defense, only when there is substantial evidence supporting the defense, and the defendant is either relying on the defense or the defense is not inconsistent with the defendant’s theory of the case. [Citation.]” (People v. Villanueva (2008) 169 Cal.App.4th 41, 49.) “In determining whether substantial evidence supports a defense, the trial court must leave issues of witness credibility to the jury. [Citation.]” (Ibid.) On review, we independently determine whether substantial evidence existed to support the defense. (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1055.)
The omitted paragraph reads: “the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight.” (CALCRIM No. 3471.) There was no evidence that the victim acted with sudden deadly force. Rather, the evidence shows that the victim’s punches caused defendant to suffer minor cuts, and that defendant may have unreasonably believed that he needed to use deadly force. Accordingly, the trial court did not err by not instructing the jury with the disputed paragraph.
Further, during closing arguments defendant argued a theory of imperfect self defense, i.e., his belief that he needed to respond with deadly force was honest, but unreasonable. (See People v. Quintero (2006) 135 Cal.App.4th 1152, 1166 [defining imperfect self defense].) The omitted paragraph concerns a theory of perfect self defense, i.e., the defendant’s belief was objectively reasonable. (See People v. Hardin (2000) 85 Cal.App.4th 625, 629 [defining perfect self defense].) The omitted paragraph addresses perfect self defense, rather than imperfect self defense, because it requires that the victim act with deadly force, which in turn justifies the defendant’s use of deadly force. Defendant did not argue a theory of perfect self defense; therefore, the trial court was correct to omit the disputed paragraph because it was not relevant to defendant’s theory of the case. In sum, the trial court did not err.
Defendant contends that the disputed paragraph should have been given to the jury because the victim’s punches constituted deadly force. We disagree with this argument for two reasons. First, defendant did not receive medical treatment for his injuries, and his injuries were described as small cuts. Therefore, substantial evidence does not show that the victim’s punches amounted to deadly force. Second, before defendant began shooting, the victim stopped punching defendant and defendant was walking away from the victim. Therefore, there was not substantial evidence that the victim “responded with such sudden and deadly force that the defendant could not withdraw from the fight.” In sum, we find defendant’s argument unpersuasive.
B. CALCRIM NO. 3472
CALCRIM No. 3472 provides: “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.”
Defendant contends that the trial court raised the possibility that defendant intentionally provoked the fight with Garrett in order to use force (CALCRIM No. 3472), and therefore, the trial court was obligated to explain to the jury that a person who initiates a fight can regain his right of self defense if the victim “responded with such sudden and deadly force that the defendant could not withdraw from the fight.” (CALCRIM No. 3471.) We disagree.
We concluded ante, that the trial court correctly decided to not instruct the jury on the law concerning a victim who suddenly acts with deadly force (CALCRIM No. 3471). We are not persuaded to change our conclusion based upon defendant’s argument that CALCRIM No. 3472 suggested to the jury that defendant provoked the fight, because the facts remain that (1) defendant did not argue a theory of perfect self defense; and (2) substantial evidence does not support a finding that the victim suddenly responded with deadly force. Accordingly, the trial court did not err by not instructing the jury on the law pertaining to a victim’s sudden use of deadly force.
Defendant contends that the omitted paragraph should have given to the jury because “substantial evidence showed [defendant] had no opportunity to withdraw while being beaten.” Defendant’s argument is not persuasive because, before defendant began shooting, the victim stopped punching defendant and defendant was walking away from the victim.
C. MUTUAL COMBAT
1. JURY INSTRUCTION
CALCRIM No. 3471 provides, in relevant part: “A person who engages in mutual combat or who is the initial aggressor has a right to self-defense only if:
“1. (He/She) actually and in good faith tries to stop fighting; [AND]
“2. (He/She) indicates, by word or by conduct, to (his/her) opponent, in a way that a reasonable person would understand, that (he/she) wants to stop fighting and that (he/she) has stopped fighting(;/.)
“<Give element 3 in cases of mutual combat.>
“[AND
“3. (He/She) gives (his/her) opponent a chance to stop fighting.]” (CALCRIM No. 3471.)
2. ANALYSIS
The trial court did not instruct the jury on the third element concerning mutual combat. Defendant agrees that the law pertaining to mutual combat was not applicable to the instant case. Defendant contends that the trial court erred because, when the court read the first sentence of the instruction to the jury, it included the phrase, “A person who engages in mutual combat or who is the initial aggressor.” (CALCRIM No. 3471.) In other words, defendant contends that the trial court erred by mentioning the term “mutual combat.” We disagree.
“The general rule is that in a criminal case the trial court must instruct on the ‘principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty “to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.” [Citation.]’ [Citation.]” (People v. Barker (2001) 91 Cal.App.4th 1166, 1172.)
Defendant did not engage in mutual combat with the victim, because defendant continuously backed away from the victim. Further, at the time defendant shot the victim, the victim had stopped punching defendant and defendant was walking away from the victim. Therefore, defendant is correct that the term “mutual combat” was irrelevant to the issues raised by the evidence. However, in turn, because the term was irrelevant to the issues raised by the evidence, we conclude that it is unlikely that the instruction had the effect of confusing the jury or relieving it from making findings on relevant issues. In short, because there was no evidence of mutual combat, the jury likely disregarded the term, especially since “mutual combat” was one of two options, i.e., “A person who engages in mutual combat or who is the initial aggressor....” In sum, we conclude the trial court did not err because the instruction would not have had the effect of confusing the jury or relieving it from making findings on relevant issues.
Defendant asserts that the trial court’s use of the term “mutual combat” was misleading, because it is likely that the jury understood the term to mean “‘any violent struggle between two or more people.’” Defendant believes that this ordinary, non-legal definition, caused the jury to find that defendant did not act in self defense, despite defendant’s testimony that it looked like the victim was reaching for his waistband when defendant began shooting. We are not persuaded by defendant’s argument for two reasons. First, the evidence reflects that defendant may have unreasonably believed that he was engaged in mutual combat-not that he was actually engaged in mutual combat. Therefore, it is unlikely that the jury was confused. Second, defendant has conceded that mutual combat was not a relevant issue. Therefore, defendant’s argument that mutual combat was pertinent to the issue of self defense appears specious.
The legal definition of mutual combat “means not merely a reciprocal exchange of blows but one pursuant to mutual intention, consent, or agreement preceding the initiation of hostilities.” (People v. Ross (2007) 155 Cal.App.4th 1033, 1045.)
Moreover, speculation about jurors’ thoughts will not support a reversal of a judgment. (People v. Gray (2005) 37 Cal.4th 168, 230.) Defendant’s argument is based on two levels of speculation. First, defendant speculates that the jurors applied a common definition of the term “mutual combat” during their deliberations. Second, defendant speculates that the use of the common definition caused the jury to find that defendant did not act in self defense. Therefore, defendant’s argument is also unpersuasive because it is based upon speculation.
D. CUMULATIVE ERROR
Defendant contends that the cumulative effect of the foregoing alleged instructional errors requires reversal of his convictions. We have reviewed each of defendant’s claims of error on a singular basis and found no error. We do not find defendant’s claims more persuasive when considered cumulatively. (See People v. Avila (2006) 38 Cal.4th 491, 615 [similar conclusion].) Accordingly, we reject defendant’s claim of cumulative error.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P. J., KING J.