Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of San Luis Obispo Michael L. Duffy, Judge Super. Ct. No. F387854.
Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Zee Rodriguez, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Tyler Ragar Troutner appeals from judgment after conviction by jury of multiple crimes arising from a series of altercations at a party. Troutner was convicted of two counts of assault with a deadly weapon, a knife (Pen. Code, § 245, subd. (a)(1)), one of which was found to have been committed with personal infliction of great bodily injury (§ 12022.7, subd. (a)); one count of felony battery resulting in serious bodily injury (§ 243, subd. (d)), which was found to have been committed with the personal use of a knife (§ 12022, subd. (b)(1)); one count of simple assault (§ 240); two counts of simple battery (§ 242); and one count of felony vandalism (§ 594, subd. (b)(1)).
All statutory references are to the Penal Code.
The trial court sentenced appellant to an aggregate term of eight years eight months in state prison, consisting of a four-year upper term for assault with a deadly weapon upon Richard Garrett Morton, plus a three-year enhancement for infliction of great bodily injury; a consecutive one-year term for assault with a deadly weapon upon Michael Clifford (one-third the midterm), two six-month terms for simple assault and simple battery upon Clifford concurrent to each other and to the term for assault with a deadly weapon upon Clifford; a six-month concurrent term for simple battery upon James White; an eight-month concurrent term for felony vandalism of Clifford's car (one-third the midterm); and an eight-month term for an unrelated offense. The court also imposed, but stayed pursuant to section 654, a four-year upper term for felony battery resulting in serious bodily injury upon Morton, plus a one-year enhancement for personal use of a knife.
Appellant contends that (1) his convictions for the assault and battery of Morton should be reversed because the judge did not instruct the jury on a mutual combatant's restored right to self-defense upon the sudden use of deadly force by his opponent, and (2) his conviction for assault with a deadly weapon upon Clifford should be reversed or reduced to simple assault and battery because there was insufficient evidence that he used a knife to attack Clifford. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the night of April 15, 2006, Kellie Rarig had a party at her home in Cayucos while her parents were away. Appellant arrived at the party with Terance Carter and Monte Garrison. A fight broke out between Carter and another guest. They struggled on the ground and others watched. Appellant punched James White in the mouth.
A witness saw appellant get something from the car and make a slashing motion with the item at another guest. Another witness saw appellant in the street displaying a knife. Rarig saw that appellant had a knife. Carter, Garrison and appellant returned to their car and began to drive away.
As they drove away, Michael Schlitz threw a shovel at their car. Garrison and appellant got out of the car and ran back down a hill toward a car that belonged to Michael Clifford. Carter may have also been with Garrison and appellant. Witnesses saw that appellant had a knife in his hand as he was running toward Clifford's car. Another witness saw appellant make several slashing moves at the rear driver's tire of Clifford's car, but did not see a blade. The tire was later found to have four slashes in it, caused by a sharp object.
Garrison and appellant attacked Clifford's car, breaking windows. Garrison used a club. John Howard-Green was in the back seat of Clifford's car and was lightly cut by glass shards.
Appellant, and possibly Garrison, pulled Michael Clifford from the driver's seat of the car. Clifford protested that he had nothing to do with the fight and did not want trouble. Several witnesses saw appellant push, hit or punch Clifford in the chest. None of the witnesses saw a blade in appellant's hand, but Clifford was later found to have suffered a stab wound to his chest. The knife entered Clifford's thorax, but did not reach his heart or lungs. Clifford did not know he was being stabbed when it occurred, but he realized that his chest was bloody about five or seven minutes after appellant hit, punched or pushed him. He was not bloody before he was pulled out of the car. Anna Greene testified that, when appellant was pulling Clifford from the car, she wedged herself between appellant and Clifford and that she saw an arm reach around her to hit Clifford in the chest. She did not see a knife. No other witness remembered Greene coming between appellant and Clifford.
Clifford remembered seeing two people at the time he was pulled out of the car, and he could not recall which one pulled him out of the car. Some witnesses testified that only appellant pulled Clifford from the car, and that Garrison was attacking the car with a club at that time. No witness saw Garrison hit, punch or otherwise assault Clifford, except one witness who testified that both appellant and Garrison got "right up in [Clifford's] face, kind of, like, pushing him, maybe. I don't think that they tried to punch him, but they were definitely in his face." Carter had been seen at the party with a knife, but several witnesses testified that they did not see Carter run down the hill or attack Clifford's car with Garrison and appellant. One witness testified that he saw three or four silhouettes run down the hill toward Clifford's car, but that witness later testified that Carter was not present when Clifford and his car were attacked.
When appellant attacked Clifford, Garrett Morton came to Clifford's aid. Morton pulled appellant from Clifford and fought appellant. Morton and appellant struggled, fell to the ground and rolled on the ground in the middle of the street. One witness testified that Morton "dragged" appellant away from Clifford. Anna Greene told a deputy that Morton punched appellant. The fight between Morton and appellant ended within 20 to 30 seconds when Greene ran over and kicked appellant in the stomach and face and Morton broke free, punched appellant in the face and ran away. While Morton and appellant were fighting on the ground, several witnesses saw appellant make punching or hitting gestures at Morton. Immediately afterward, Morton was bloody. Morton had suffered eight stab wounds to his chest, face, leg and arm. His injuries were potentially life-threatening.
The court instructed the jury on self-defense, using CALCRIM Nos. 3470, 3471, 3472 and 3474, which included the instruction that a mutual combatant or initial aggressor has a right to self-defense only if he actually and in good faith tries to stop fighting, indicates to his opponent that he wants to stop fighting, and gives his opponent a chance to stop fighting (No. 3471). The court did not, and was not requested to, give the bracketed alternative language of No. 3471, which states, "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."
The jury found appellant guilty of simple battery of James White (§ 242) and guilty of felony vandalism of Clifford's car. (§ 594, subd. (b)(1).) The jury found appellant not guilty of a charge of assault with a deadly weapon upon John Howard-Green based on minor injuries he suffered in the backseat of Clifford's car when the windows were shattered. For the attack upon Clifford, the jury found appellant guilty of assault with a deadly weapon, a knife (§ 245, subd. (a)(1)), but found untrue an allegation that appellant personally inflicted great bodily injury. The jury found appellant not guilty of felony battery of Clifford with serious injury, but guilty of the lesser-included offenses of simple assault and simple battery of Clifford. (§§ 240, 242.) For the attack upon Morton, the jury found appellant was not guilty of attempted murder or attempted manslaughter, but guilty of felony assault with a deadly weapon (a knife), with personal infliction of great bodily injury (§§ 245, subd. (a)(1), 12022.7, subd. (a)) and felony battery resulting in serious bodily injury, with personal use of a knife (§§ 243, subd. (d), 12022, subd. (b)(1)).
DISCUSSION
Self-Defense Instruction - Assault With A Deadly Weapon Upon Morton
Appellant acknowledges that a mutual combatant or initial aggressor generally has no right to self-defense, but he contends that there was evidence that Morton and Anna Greene escalated the altercation, restoring his right to self-defense, and that the jury should therefore have been instructed that a mutual combatant's right to self-defense is restored if his opponent suddenly escalates the altercation. We reject appellant's argument because defense counsel waived the issue by not requesting the instruction and no substantial evidence supports the defense.
The trial court is obligated to instruct on relevant principles of law, including any defense supported by substantial evidence. (People v. Flannel (1979) 25 Cal.3d 668, 685; People v. Hill (2005) 131 Cal.App.4th 1089, 1101, overruled on another point in People v. French (2008) 43 Cal.4th 36, 48, fn. 5.) Appellant was the initial aggressor under any version of the facts when he pulled Clifford from his car. Appellant does not dispute that Morton had a right to come to Clifford's defense, but contends that he was entitled to defend himself against Morton. Generally, a mutual combatant or initial aggressor has no right to self-defense unless he tries to stop the fight, communicates this intent to his opponent, and gives his opponent a chance to stop fighting. (People v. Crandell (1988) 46 Cal.3d 833, 871-872, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 326, 364-365.) As the jury concluded, appellant had no right to self-defense under this theory. He did not try to stop the fight with Morton. He escalated it by stabbing Morton eight times. In the 20 or 30 seconds it took Morton to punch appellant, pull appellant away from Clifford, wrestle appellant to the ground, and break free from appellant, no one saw appellant try to stop the fight, communicate to Morton an intent to withdraw or allow Morton to withdraw.
An initial aggressor or mutual combatant is not required to communicate an intent to withdraw if (1) he initially uses only non-deadly force, and (2) his opponent responds suddenly with deadly force. (People v. Quach (2004) 116 Cal.App.4th 294, 301–302.) However, Morton did not respond to appellant with deadly force. At most, Morton punched appellant after appellant punched (or stabbed) Clifford and Greene and kicked appellant after appellant fought (or stabbed) Morton. Neither Morton nor Greene had a weapon. The trial court therefore had no sua sponte duty to give the instruction in question. Even if it had, the jury would have rejected the theory. The jury found that appellant used deadly force initially when it convicted him of assault with a deadly weapon upon Clifford. For these same reasons, defense counsel did not render ineffective assistance by not requesting the instruction. The result would not have been different if the instruction had been given. (Strickland v. Washington (1984) 466 U.S. 668, 694.)
Sufficiency of Evidence - Assault With A Deadly Weapon Upon Clifford
Appellant contends that, because no witness saw the knife in appellant's hand at the moment that Clifford was stabbed and because there was evidence that appellant and Garrison jointly attacked Clifford, there was insufficient evidence to support his conviction for assault with a deadly weapon upon Clifford. We disagree.
The fact that an assault is committed with a deadly weapon may be proved by circumstantial evidence. When no witness sees a knife in the defendant's hand, the use of a knife may be proved by the nature of the wound. (People v. Henry (1938) 25 Cal.App.2d 49, 50 [no witness saw the knife but smooth-edged scars displayed to the jury and a physician's testimony that the cuts to the victim's sweater, chest, chin, and neck were clean and made by sharp-edged instrument were sufficient to prove they had been made by a knife]; People v. Guiterrez (1934) 140 Cal.App. 720, 721 [no witness saw the knife but the nature of stab wound to eye sufficient to prove use of deadly weapon].) Here, the treating physician testified that Clifford's injury was a "stab wound." Several witnesses saw appellant pull Clifford from the car and either push, hit or punch him in the chest just before Clifford discovered that he had suffered the stab wound. Moreover, there was evidence that appellant had a knife in his hands before the assault upon Clifford, both at the time the party was breaking up and just before the assault when appellant and Garrison ran toward Clifford's car. There was evidence that Garrison was with appellant and together they "got in his face," but no witness saw a knife in Garrison's hands at any point. Carter was seen with a knife earlier in the evening, but no witness saw Carter pull Clifford from the car or make physical contact with him. We conclude that substantial evidence supported the jury's conclusion that appellant used a deadly weapon to assault Clifford.
The judgment is affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.