Opinion
D075213
07-30-2020
THE PEOPLE, Plaintiff and Respondent, v. LUCIOUS WILSON, Defendant and Appellant.
Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS295741) APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed as modified; remanded for resentencing. Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
Lucious Wilson, a state prison inmate, was charged with aggravated assault by a prisoner (Pen. Code, § 4501, subd. (b)) and battery by a prisoner on a non-prisoner (§ 4501.5) after he repeatedly punched one prison guard (Officer Solis) in the face, and allegedly attempted to headbutt another guard (Officer Segovia). Wilson claimed at trial that he punched Solis in self-defense, and he denied attempting to headbutt Segovia. The jury found Wilson guilty as to Solis, and not guilty as to Segovia. The trial court sentenced Wilson to six years in prison, which included two 1-year prison prior enhancements.
Further unspecified statutory references are to the Penal Code.
On appeal, Wilson contends the trial court erred prejudicially by instructing the jury regarding "contrived self-defense" with CALCRIM No. 3472, which states, "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." Wilson acknowledges there is evidence in the record from which the jury could reasonably have concluded he intended to provoke Solis to attack him with nondeadly force so that Wilson would have an excuse to retaliate with nondeadly force. But he contends the jury instruction misstates the law because it applies "only . . . where the defendant provokes a quarrel with the intent to use deadly force." We disagree. As we will explain, other courts have held that CALCRIM No. 3472 is a generally correct statement of the law, and Wilson does not fall within the exception that applies in those rare cases in which the defendant intended to provoke only a nondeadly response but was unexpectedly met with a deadly one.
Wilson also asks that we independently review the trial court's sealed Pitchess proceedings pertaining to the personnel files of several correctional officers connected to the incident underlying Wilson's conviction. We have done so and find no error.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
Finally, we asked the parties to brief whether we should strike the two 1-year prison prior enhancements based on post-sentencing amendments implemented by Senate Bill No. 136, which amended section 667.5, subdivision (b) to allow a prison prior enhancement to be imposed only when a prior prison term was served for a sexually violent offense (which Wilson's were not). The parties agree the enhancements should be stricken. We agree.
Accordingly, we strike Wilson's two 1-year prison prior enhancements and remand for resentencing. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
Wilson was an inmate at the Richard J. Donovan Correctional Facility (RJD), where he was housed in a higher-security unit for violent and aggressive inmates. He had a history of being confrontational, and a reputation for "gassing"—throwing bodily fluids or feces at guards, medical staff, or other inmates.
On June 21, 2017, Solis, a correctional officer at RJD with 24 years' experience, was assigned to escort inmates between their housing units and RJD's Enhanced Outpatient Program (EOP) compound, where inmates receive medical, mental health, and therapy services. Wilson attended several anger management group therapy programs at the EOP compound. Solis had become aware about a month earlier that Wilson was lingering behind after his EOP sessions to avoid returning to his cell.
Around 12:30 p.m., Solis saw Wilson walk hurriedly into a classroom at the EOP compound. Solis did not see Wilson's name on the list of inmates scheduled to attend therapy, so Solis told Wilson to return to his cell. Wilson "became defiant," remained seated, and said, "I am not fucking going anywhere." After Solis gave Wilson two more direct orders to return to his cell, Wilson eventually stood up and began to walk out of the classroom.
As Wilson walked out of the classroom, he was "agitated," "yelling," and "cussing mad." Solis double-checked the list and saw that Wilson was, indeed, scheduled to be in therapy. When Solis admitted his mistake, Wilson "went from zero to 100 in attitude real quick," saying, "I told you I have fucking group. I told you I should be here." Solis again acknowledged his mistake, and told Wilson to lower his voice. When Wilson remained loud and disruptive, Solis decided Wilson should return to his cell to avoid disrupting EOP programs or starting "a little riot."
Solis advised Wilson of the decision to return him to his cell. Wilson exited the classroom, walked past Solis, then turned around and punched Solis repeatedly "straight in the face." Solis tried to shield himself, grab Wilson, and punch back. Solis lost his grip and fell to the ground, bringing Wilson with him. The men wrestled on the ground until prison staff responded and subdued Wilson.
Solis was transported to the medical facility at RJD, and then to a hospital. He suffered a cut lip, a punctured lip that required stitches, a loose tooth, scratches on his face, and abrasions on his elbow and knee.
As Wilson was escorted away by other guards, he told them, "I fired on that bitch-ass motherfucker. I don't give a fuck." Later, as another correctional officer, Segovia, was transporting Wilson from a holding cell to the medical facility for evaluation, Wilson allegedly attempted to headbutt Segovia. Segovia moved out of the way and subdued Wilson.
A few months later, Wilson made threatening comments to other prison guards about his having attacked Solis. In one instance, Wilson said, "You better watch out or I will do you like I did your boy Solis." In another instance, Wilson said, "I will fuck you up like I did Solis. Yes, that was me. I did it."
Anticipating Wilson's defense, Solis testified things had not been particularly confrontational between him and Wilson in the month before the assault. Solis denied making threatening comments to Wilson or giving Wilson permission to hit him.
Defense Evidence
Events Leading Up to the June 21 Assault
Wilson testified he had a strained relationship with Solis leading up to the incident. Wilson accused Solis of "nitpick[ing]" by singling out Wilson for being in "the yard" when he was not supposed to be.
About one month before the June 21 assault, Solis made Wilson leave a medical appointment before Wilson could get a copy of his records. When Wilson asked why he had to leave, Solis responded, "If you don't get up right now, I am going to hit the alarm and you know what is going to happen at that point." Wilson construed this as a threat of violence, so he complied. Wilson believed other guards later conducted a pretextual "random" search of his cell at Solis's direction in retaliation for Wilson's attitude at the medical appointment. Wilson claimed the guards stole $160 worth of his personal property during the search.
On June 19, Wilson saw Solis escorting an African-American inmate, so Wilson "made a little comment" to the inmate to antagonize Solis. Wilson said, "Hey, man, it seems like Solis [is] always harassing Black people. I think he like[s] you. You might be able to hit something." Wilson testified the last sentence was a sexual innuendo, and he acknowledged he made these comments without provocation by Solis.
On June 20, Solis accused Wilson of "talking shit" to him only when they were separated by a gate. Wilson suggested that Solis use his keys to open the gate so they could fight, but only if Solis would agree not to use his alarm button to call for backup. Solis responded, "I don't need [backup]. I will beat the shit out of you and make you piss on yourself." Wilson construed this as a death threat because he was aware that a few weeks earlier Solis had beaten a wheelchair-bound inmate, who was hospitalized a few days later with a brain hemorrhage. Solis told Wilson they could fight if Wilson would "throw the first punch." Wilson accepted the invitation and went outside to fight Solis, but Solis never showed. Wilson considered himself "vindicated."
Solis testified about this incident during Wilson's defense case. According to Solis, an inmate in a wheelchair became "irate" when medical staff informed him his appointment was being canceled. Solis allowed the inmate "some leeway to vent," but when Solis eventually told the inmate it was time to leave, the inmate "cuss[ed]" at Solis and said he was not leaving. As Solis approached the inmate, the inmate stood up, ran away from Solis and into a wall, and then charged at Solis. Solis "just stuck [his] hands out," and the inmate ran into them and fell down. Solis handcuffed him without further incident. Solis learned the inmate was hospitalized four or five days later with a brain hemorrhage, but Solis did not know what caused the hemorrhage. Wilson testified he did not believe Solis's account of this incident.
The June 21 Assault
On June 21, Wilson attended group therapy at the EOP compound at 11:30 a.m., returned to his housing unit to eat, and then returned to the EOP compound for a 1:00 p.m. group therapy session. On his way to the afternoon session, Wilson overheard guards ridiculing Solis for backing down the day before. Wilson arrived at the therapy classroom and sat to wait for the facilitator to arrive. As he waited, he saw Solis outside telling another guard that Wilson did not have therapy and that Solis would therefore be escorting Wilson back to his housing unit.
Solis told Wilson to get out of the classroom, but Wilson was "feeling so vindicated over the circumstances" of their prior encounter that he disregarded Solis's command. Solis got into Wilson's "private space . . . with his fists balled up" and said, "I am giving you a direct order to go outside." Wilson testified he construed this as Solis trying to isolate Wilson so they could fight outside. Wilson replied, "[Y]ou want to take this outside?", then stood up, removed his beanie, "do-rag," and jewelry—as if preparing to fight—and walked out of the classroom.
When Wilson walked out of the classroom, he took a defensive stance because he was "assuming any minute [Solis] was [going to] come out swinging or doing something." Wilson told Solis, "I do got group, man. Why are you fucking with me?" Solis responded, "Yeah, I know you got group." Wilson asked, "Why did you just tell these motherfuckers I don't got group?" Solis walked up to Wilson, grabbed him by the collar of his shirt, squeezed Wilson, and asked, "You got something you fucking want to say to me?" Wilson considered this "a threat of imminent danger."
Wilson feared Solis was going to "do something to" him, so Wilson defensively hit Solis twice, causing Solis to fall. Another guard then tackled Wilson, who "relented."
Wilson alleges Solis then used excessive force against him. However, because events that occurred after the assault ended are irrelevant to our analysis of the contrived self-defense instruction, we need not discuss them in any detail.
Wilson denied he attempted to headbutt Segovia after the incident with Solis.
Wilson admitted later making threatening comments to other guards, including writing in the wall with his own blood that "C[orrectional] O[fficer] [name redacted] will bleed."
Jury Verdicts and Sentencing
The jury found Wilson guilty of assault by a prisoner with force likely to produce great bodily injury (§ 4501, subd. (b)) and battery by a prisoner on a non-prisoner (§ 4501.5) as to Solis. The jury found Wilson not guilty of assault by a prisoner with force likely to produce great bodily injury as to Segovia.
Wilson waived his right to a trial on priors, and admitted he had suffered two strike priors (§§ 667, subds. (b)-(i), 668, 1170.12) and two prison priors (§§ 667.5, subd. (b), 668).
The strike priors were for a 2005 conviction for second degree robbery (§ 212.5, subd. (c)) and a 2012 conviction for aggravated assault (§ 245, subd. (a)(1)).
The prison priors were based on underlying convictions in 2005 for second degree robbery (§ 212.5, subd. (c)) and in 2008 for resisting an executive officer by force or threat (§ 69).
The trial court sentenced Wilson to six years in prison, consisting of the following: four years for the assault conviction (the low term of two years, doubled for the strike priors), plus two 1-year prison prior enhancements. The court also imposed a four-year term for the battery conviction, but stayed it under section 654.
DISCUSSION
I. No Instructional Error Regarding Contrived Self-defense
The trial court instructed the jury generally regarding self-defense, but also instructed with CALCRIM No. 3472 that self-defense cannot be contrived: "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." Wilson—who represented himself at trial—did not object to the instruction at trial, but now contends it misstates the law. According to Wilson, the instruction misstates the law because the contrived self-defense doctrine operates only when the defendant intends to provoke a deadly response; it does not operate where, as here, he intends to provoke only a nondeadly response and is met with such. We disagree.
We disagree with the Attorney General that Wilson's failure to object to the instruction at trial forfeited his ability to challenge it on appeal. Although a defendant generally " 'may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language' " (People v. Covarrubias (2016) 1 Cal.5th 838, 901), this forfeiture rule does not apply when "the trial court gives an instruction that is an incorrect statement of the law" (People v. Hudson (2006) 38 Cal.4th 1002, 1012). Because our determination of whether Wilson has forfeited this challenge will require us to consider the very merits of his challenge—that is, whether the instruction misstates the law—we will address his challenge on the merits.
Wilson acknowledges "there was abundant evidence for jurors to conclude . . . Solis . . . was provoked by [Wilson]'s numerous statements, and that [Wilson] made those statements intending to provoke Solis and so that [Wilson] could use non-deadly force to defend himself." (Italics added.) Thus, if the instruction was a proper statement of the law, it was properly given.
Wilson relies most heavily on People v. Ramirez (2015) 233 Cal.App.4th 940 (Ramirez), in which a divided panel concluded that although "CALCRIM No. 3472 states a correct rule of law in appropriate circumstances," the instruction misstated the law under the facts of that case. (Ramirez, at p. 947, italics added.) The Ramirez majority acknowledged that the California Supreme Court had found that the predecessor to CALCRIM No. 3472 (CALJIC No. 5.55) correctly stated the law of contrived self-defense when applied to a defendant and victims who employed the same degree of force (i.e., deadly force). (Ramirez, at pp. 947-948, citing People v. Enraca (2012) 53 Cal.4th 735 (Enraca).) But the Ramirez court found that CALCRIM No. 3472 misstated the law on the facts before it, where the defendant and victim employed disparate degrees of force.
The version of CALJIC No. 5.55 at issue in Enraca stated: " 'The right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense.' " (Enraca, supra, 53 Cal.4th at p. 761.)
Specifically, the record in Ramirez showed that the defendant intended to provoke only a nondeadly fistfight with rival gang members, but when he saw one of them holding an object that looked like a gun, the defendant pulled a gun and fatally shot the rival gang member. (Ramirez, supra, 233 Cal.App.4th at pp. 944-945.) The majority reversed the defendant's murder conviction, finding CALCRIM No. 3472 was improperly given under the circumstances because it "made no allowance for an intent to use only nondeadly force and an adversary's sudden escalation to deadly violence." (Ramirez, at p. 945.) The court reasoned that "[a] person who contrives to start a fistfight or provoke a nondeadly quarrel does not thereby 'forfeit[] . . . his right to live' " if the victim unexpectedly responds with deadly force. (Id. at p. 943.) As the Ramirez majority put it: "CALCRIM No. 3472 make[s] no distinction between deadly and nondeadly force, nor an opponent's escalation to deadly force. The distinction makes all the difference." (Ramirez, at p. 953, fn. 2.)
Dissenting in Ramirez, Justice Fybel reasoned that a victim's unanticipated escalation to deadly force was adequately addressed by CALCRIM No. 3471, which provides that "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/herself) with deadly force . . . ." (See Ramirez, supra, 233 Cal.App.4th at p. 956 ["It appears the majority would modify CALCRIM No. 3472 to do no more than restate principles that were given to this jury in the form of CALCRIM No. 3471."] (dis. opn. of Fybel, J.).)
The Ramirez majority also found it significant that the prosecutor had "highlighted" CALCRIM No. 3472 throughout her closing argument, repeatedly arguing that "it precluded any claim of self-defense even if [the] defendant[] only instigated a fistfight." (Ramirez, supra, 233 Cal.App.4th at p. 946; see ibid. ["The prosecutor argued the instruction precluded a claim of self-defense in all possible circumstances under the evidence . . . ."]; id. at p. 947 ["The blanket rule articulated in CALCRIM No. 3472 and reiterated by the prosecutor effectively told the jury, 'A person does not have [any] right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use [any] force.' "]; ibid. ["In effect, the prosecutor and the trial court advised the jury that one who provokes a fistfight forfeits the right of self-defense if the adversary resorts to deadly force."]; id. at p. 948 ["the prosecutor in rebuttal emphasized the plain words of CALCRIM No. 3472 precluded" self-defense and imperfect self-defense]; id. at p. 950 ["As the prosecutor repeatedly emphasized, under CALCRIM No. 3472's command, 'it doesn't matter' whether . . . the original victim escalated a nondeadly conflict to deadly proportions."].)
The circumstances that prompted the Ramirez court to conclude CALCRIM No. 3472 misstated the law of contrived self-defense are not present here. First, unlike the defendant in Ramirez, Wilson does not contend that his theoretical intent to provoke only a nondeadly response was met with an unexpected deadly response. Second, unlike the prosecutor in Ramirez, the prosecutor here did not highlight CALCRIM No. 3472 throughout his closing argument; instead, he mentioned it only briefly as one of three bases on which to reject Wilson's claim of self-defense.
The prosecutor's primary argument for rejecting Wilson's self-defense claim was that Wilson could not have reasonably believed he needed to defend himself. The less prominent bases for rejecting the defense were that Wilson provoked the quarrel as an excuse to use force, and that correctional officers are entitled to use reasonable force in the lawful performance of their duties.
More apt here than Ramirez is People v. Eulian (2016) 247 Cal.App.4th 1324 (Eulian), in which the defendant's intent to provoke a nondeadly quarrel was, indeed, met with a nondeadly quarrel. The defendant (a 39-year-old off-duty firefighter) and victim (a 48-year-old woman) got into an altercation when the defendant confronted the victim about feeding feral cats in the alley behind his residence. (Eulian, at pp. 1326-1327.) During their encounter, the defendant "leaned into [the victim]'s car" and "repeatedly pok[ed] his finger close to [her] face," which prompted the victim to toss cat kibble at the defendant. (Id. at p. 1328.) The defendant continued to yell and point at the victim, who then slapped the defendant. (Ibid.) The defendant then punched the victim, dragged her out of her car, and punched her some more. (Ibid.) The jury rejected the defendant's claim of self-defense and found him guilty of battery with serious bodily injury, and aggravated assault. (Id. at pp. 1325-1326.)
On appeal, the Eulian defendant cited Ramirez, supra, 233 Cal.App.4th 940 to support his argument that the trial court had erred by giving CALCRIM No. 3472 because it "misstates the law of self-defense." (Eulian, supra, 247 Cal.App.4th at p. 1326.) The Eulian court disagreed, explaining that "the opposite is true[:] CALCRIM No. 3472 is generally a correct statement of law, which might require modification in the rare case"—such as in Ramirez—"in which a defendant intended to provoke only a nondeadly confrontation and the victim responds with deadly force." (Eulian, at p. 1334.) Because no deadly force was at issue in Eulian, the court found Ramirez inapplicable "[o]n its face." (Eulian, at p. 1334.)
The Eulian court's observation is illustrated by the fact that the bench notes to CALJIC No. 5.55 (the instruction at issue in Enraca, supra, 53 Cal.4th 735) indicate the instruction was revised in 2015 to add the following optional paragraph in response to Ramirez: "[However, a person who contrives to start a fistfight or provoke a nondeadly quarrel does not forfeit the right to self-defense if [his] [her] opponent[s] respond[s] in a sudden and deadly counterassault, that is, force that is excessive under the circumstance. The party victimized by the excessive force need not withdraw and may use reasonable necessary force in lawful self-defense.]" (Com. to CALJIC No. 5.55 (2020-1 ed.) p. 360.) --------
Likewise, here, because this is not one of those "rare case[s]" in which the victim unexpectedly responded by escalating to deadly force, Ramirez is inapplicable "[o]n its face." (Eulian, supra, 247 Cal.App.4th at p. 1334.)
In further support of his claim, Wilson points out that several of the authorities cited in the bench notes to CALCRIM No. 3472 involved deadly force. But these cases do not, by negative inference, stand for the proposition that the contrived self-defense doctrine does not operate when only nondeadly force is involved. (People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10 ["It is axiomatic that cases are not authority for propositions not considered."].) Moreover, Wilson offers no principled reason why the doctrine should not operate when only nondeadly force is involved—that is, he does not attempt to explain why society should immunize a defendant who intentionally uses nondeadly force during a fistfight that he successfully goaded the victim into starting for the sole purpose of providing the defendant an excuse to use nondeadly force. Although nondeadly force is obviously preferable to deadly force, we see no reason to immunize a defendant who provokes a quarrel with the specific intent of creating an excuse to use either degree of force.
On the record before us, CALCRIM No. 3472 was a correct statement of the law. Accordingly, the trial court did not err by giving it.
II. Pitchess Review
During pretrial discovery, Wilson filed a Pitchess motion seeking to discover whether the personnel files of 16 RJD correctional officers contained complaints alleging "excessive use of force, conspiracy, theft, filing false reports, dereliction of duty, perjury, harassment, discrimination, assault, physical/sexual battery, and all other acts of misconduct." The court found good cause to allow discovery as to four of the correctional officers, and conducted an in camera inspection of their personnel records on February 15 and March 9, 2018. After this review, the trial court ordered the disclosure (subject to a protective order) of the name and contact information of one person who had filed a complaint against one of the correctional officers.
Wilson now asks that we independently review the trial court's sealed Pitchess proceedings. The Attorney General does not oppose this request.
On our own motion, we augmented the record to include the sealed reporter's transcripts of the in camera Pitchess proceedings and the sealed records reviewed by the trial court. We have independently reviewed these materials and find no error.
III. Wilson's Prison Prior Enhancements are Stricken
When Wilson was sentenced in November 2018, his 2005 conviction for robbery and 2008 conviction for resisting an executive officer were valid predicates for imposing prison prior enhancements under section 667.5, subdivision (b). But while this appeal was pending, the Governor signed into law Senate Bill No. 136, which amended section 667.5, subdivision (b) to allow a one-year prison prior enhancement only if a defendant served a "prior prison term for a sexually violent offense . . . ." (Stats. 2019, ch. 590, § 1.) This amendment took effect on January 1, 2020, and applies retroactively to all judgments not yet final as of that date. (People v. Jennings (2019) 42 Cal.App.5th 664, 680-681; People v. Lopez (2019) 42 Cal.App.5th 337, 340-341.)
On our own motion, we requested that the parties file supplemental letter briefs addressing whether we should strike Wilson's two prison prior enhancements as unauthorized under amended section 667.5, subdivision (b). The parties agree that because neither of Wilson's prison priors was for a sexually violent offense, and because his judgment is not yet final, we should strike his prison priors. We, too, agree. Accordingly, we strike Wilson's prison prior enhancements and remand for resentencing. (See People v. Buycks (2018) 5 Cal.5th 857, 893 ["[W]hen part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' "].)
DISPOSITION
Wilson's two 1-year prison prior enhancements are stricken, and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.
HALLER, J. WE CONCUR: McCONNELL, P. J. AARON, J.