People v. Martinez CA4/1 ( 2016 )


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  • Filed 8/17/16 P. v. Martinez CA4/1
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
    DIVISION ONE
    STATE OF CALIFORNIA
    THE PEOPLE,                                                                 D068954
    Plaintiff and Respondent,
    v.                                                                (Super. Ct. No. JCF34729)
    ALDO MANUEL MARTINEZ,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Imperial County, Ruth
    Bermudez Montenegro, Judge. Affirmed.
    Cannon & Harris and Donna L. Harris for Defendant and Appellant.
    Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
    General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew
    Mestman and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
    A jury found Aldo Manuel Martinez guilty of one count of assault with a deadly
    weapon (Pen. Code, § 245, subd. (a)(1)). The trial court sentenced Martinez to a four-
    year prison term.
    Martinez contends that the trial court committed prejudicial error concerning two
    jury instructions: (1) the instruction on self-defense; and (2) the instruction on asserting
    self-defense in instances of mutual combat. We conclude that Martinez's arguments lack
    merit, and we accordingly affirm the judgment.
    I.
    FACTUAL AND PROCEDURAL BACKGROUND
    On February 17, 2015, at around 9:00 p.m., in El Centro, Julio Castrejon parked
    his van next to the sidewalk at his sister-in-law's apartment while his wife went upstairs
    to pick up their two young children. Castrejon's daughter came down the stairs by
    herself, and Castrejon got out of the van to put her in the backseat. At that point,
    Castrejon saw Martinez walking on the sidewalk, coming toward the van. According to
    Castrejon, as Martinez walked by the van, Martinez stated, "What you looking at, you
    son of a bitch." Castrejon replied, "Calm. Just chilling." Martinez stated, "You like me
    or what, you son of a bitch." Castrejon responded by waving Martinez away and stating,
    "No. That's it. That's enough. Just go on." Castrejon and Martinez did not know each
    other.
    Castrejon saw that he was blocking someone from exiting a parking space, so he
    backed up his van to let the person leave the parking space, and he then moved forward to
    where he was originally positioned. As he was repositioning the van, Castrejon saw
    2
    Martinez in his rearview mirror making insulting and challenging gestures toward him.
    After Castrejon parked again, Martinez walked back up to Castrejon, who was in the
    driver's seat of the van, and said, "What do you want? You want problems, you son of a
    bitch." Castrejon later told police that he thought maybe Martinez misunderstood his
    backing up of the van as an action of aggression directed toward Martinez, rather than a
    movement to let someone exit a parking space. According to Castrejon, his driver's side
    window was slightly open, and Martinez tried to punch him through the window, but
    Martinez did not make contact with his face.
    Around that time, Castrejon's wife, Christina, came down the stairs with the
    couple's son. She saw Martinez moving toward Castrejon, swearing at him and throwing
    punches inside the van's window, which she believed made contact with Castrejon
    approximately two times. Christina heard Martinez say something such as, "I'm going to
    fuck you up."
    Castrejon explained that he was worried about his family's safety, so he took
    action against Martinez by opening the door to the van and hitting Martinez with the
    door. Castrejon got out of the van, and both men started throwing punches at each other.
    Castrejon felt Martinez land a blow on the left side of his neck. Castrejon punched
    Martinez several times in the face and body. Christina tried to pull the men apart, but
    they continued fighting. Castrejon felt that he was bleeding and that a piece of skin was
    hanging near his ear, which made him realize Martinez must have a knife, although he
    never saw a weapon during the fight. Castrejon became more angry and started kicking
    at Martinez's leg, trying to break it.
    3
    At some point, Castrejon tackled Martinez to the ground and the fight continued.
    Finally, Christina succeeded in convincing Castrejon to end the fight, and Castrejon
    withdrew. Martinez walked away from the area.
    Castrejon was taken by paramedics to the hospital, where it was discovered that he
    had two cuts on the back of his neck, which required stiches and a transfer to San Diego
    by helicopter for further evaluation.
    Martinez testified at trial and explained that on the night of the assault, he had just
    been in an argument with his wife and had several alcoholic drinks. He was walking next
    to the apartment complex, preparing to cross in back of Castrejon's van, when Castrejon
    unexpectedly backed up, almost hitting Martinez. Martinez and Castrejon had no
    interaction before the van backed up. Martinez was angry that Castrejon almost hit him,
    and he therefore shouted rude remarks to Castrejon, swearing at him and telling him to
    watch where he was going.
    According to Martinez, Castrejon then backed up the van so that the two men were
    face-to-face. Castrejon flung open the door, hitting Martinez. Martinez backed away and
    started swinging to defend himself. The two men then engaged in a fist-fight, with
    Martinez hitting Castrejon two or three times in self-defense, and Castrejon hitting
    Martinez four or five times. Castrejon tackled Martinez to the ground, kicking and
    hitting him several more times and then putting his hands around Martinez's neck so that
    he had difficulty breathing. According to Martinez, the fight ended when Castrejon
    released the grip on his neck, and Martinez walked away. Martinez testified that he did
    4
    not have a knife during the fight, and he did not hit or punch through the driver's side
    window.
    Martinez was charged with and convicted of one count of assault with a deadly
    weapon. (Pen. Code, § 245, subd. (a)(1).) The trial court sentenced Martinez to four
    years in prison.
    II.
    DISCUSSION
    A.     The Trial Court Did Not Err in the Jury Instruction on Self-defense
    We first consider Martinez's argument that the trial court erred in giving a jury
    instruction on self-defense that misstated the applicable law.
    Based on CALCRIM No. 3470, the trial court gave the following instruction on
    self-defense:
    "Self-defense is a defense to assault with a deadly weapon. The
    defendant is not guilty of that crime if he used force against the other
    person in lawful self-defense. The defendant acted in lawful self-defense
    if:
    "1. The defendant reasonably believed that he was in imminent
    danger of suffering bodily injury;
    "2. The defendant reasonably believed that the immediate use of
    force was necessary to defend against that danger;
    "AND
    "3. The defendant used no more force than was reasonably necessary
    to defend against that danger.
    "Belief in future harm is not sufficient, no matter how great or how
    likely the harm is believed to be. The defendant must have believed there
    was imminent danger of bodily injury to himself. Defendant's belief must
    5
    have been reasonable and he must have acted because of that belief. The
    defendant is only entitled to use that amount of force that a reasonable
    person would believe is necessary in the same situation. If the defendant
    used more force than was reasonable, the defendant did not act in lawful
    self-defense.
    "When deciding whether the defendant's beliefs were reasonable,
    consider all the circumstances as they were known to and appeared to the
    defendant and consider what a reasonable person in a similar situation with
    similar knowledge would have believed. If the defendant's beliefs were
    reasonable, the danger does not need to have actually existed.
    "The defendant's belief that he was threatened may be reasonable
    even if he relied on information that was not true. However, the defendant
    must actually and reasonably have believed that the information was true.
    "A defendant is not required to retreat. He or she is entitled to stand
    his or her ground and defend himself [or herself] and, if reasonably
    necessary, to pursue an assailant until the danger of death/bodily injury has
    passed. This is so even if safety could have been achieved by retreating.
    "The People have the burden of proving beyond a reasonable doubt
    that the defendant did not act in lawful self-defense. If the People have not
    met this burden, you must find the defendant not guilty of assault with a
    deadly weapon."
    Focusing solely on the first sentence of the instruction, which states that "[s]elf-
    defense is a defense to assault with a deadly weapon," Martinez contends that the
    instruction misstated the law because it erroneously led the jury to believe that a
    defendant is "entitled to use self[-]defense to defend himself only if he was assaulted with
    a deadly weapon."1 (Italics added.) As it is undisputedly not a correct statement of the
    law that a defendant may assert the legal defense of self-defense only in instances where
    1      The first sentence of CALCRIM No. 3470 states: "Self-defense is a defense to
    ." Here, the first sentence of the instruction as
    given by the trial court was created by inserting the name of the crime with which
    Martinez was charged, namely assault with a deadly weapon.
    6
    the defendant is himself assaulted with a deadly weapon (see People v. Minifie (1996) 
    13 Cal. 4th 1055
    , 1064 [threat of imminent bodily injury justifies self-defense]), Martinez
    contends that the jury was misled by the instruction and the judgment should be reversed.
    As we will explain, the argument lacks merit.
    "A defendant challenging an instruction as being subject to erroneous
    interpretation by the jury must demonstrate a reasonable likelihood that the jury
    understood the instruction in the way asserted by the defendant." (People v. Cross (2008)
    
    45 Cal. 4th 58
    , 67-68 (Cross).) " '[T]he correctness of jury instructions is to be
    determined from the entire charge of the court, not from a consideration of parts of an
    instruction or from a particular instruction.' " (People v. Carrington (2009) 
    47 Cal. 4th 145
    , 192.) Further, in examining the entire charge we assume that jurors are
    " ' " ' "intelligent persons and capable of understanding and correlating all jury
    instructions which are given." ' " ' " (People v. Smith (2008) 
    168 Cal. App. 4th 7
    , 13.)
    Here, when the entire instruction on self-defense is considered, there is not a
    reasonable likelihood that the jury understood it in the way asserted by Martinez. The
    interpretation advanced by Martinez is possible only by ignoring the second sentence of
    the instruction. Taken together, the first and second sentence state: "Self-defense is a
    defense to assault with a deadly weapon. The defendant is not guilty of that crime if he
    used force against the other person in lawful self-defense." (Italics added.) The italicized
    portion of the second sentence, referring to "that crime," unambiguously relates back to
    the crime of assault with a deadly weapon identified in the first sentence. Therefore,
    reading the two sentences together, any reasonable person would understand the first
    7
    sentence to mean that self-defense is a legal defense to the crime of assault with a deadly
    weapon.
    Subsequent portions of the instruction make clear that the type of threat that gives
    the defendant the right to use self-defense is not limited to a threat of injury from a
    deadly weapon, but rather any "imminent danger of suffering bodily injury."
    Specifically, the first element specified in the instruction requires a finding that the
    defendant "reasonably believed that he was in imminent danger of suffering bodily
    injury," and the instruction later repeats this requirement by stating that "[t]he defendant
    must have believed there was imminent danger of bodily injury to himself."
    Further, when a defendant claims that an instruction was misleading, we may also
    "consider the arguments of counsel in assessing the probable impact of the instruction on
    the jury." (People v. Young (2005) 
    34 Cal. 4th 1149
    , 1202.) Here, nothing was said
    during closing argument, either by the prosecutor or defense counsel, to suggest that
    Martinez could claim the legal defense of self-defense only if Castrejon assaulted him
    with a deadly weapon. Instead, the portion of the closing arguments discussing self-
    defense focused on whether Martinez reasonably believed he was in immediate danger of
    bodily harm.
    Accordingly, we conclude there is no reasonable likelihood that the jury
    understood the first sentence of the instruction to mean that Martinez acted in self-
    defense only if he was responding to an assault with a deadly weapon.
    8
    B.    The Trial Court Did Not Err in the Jury Instruction on Mutual Combat
    Martinez's second argument is that the trial court erred in instructing on mutual
    combat for two reasons: (1) the evidence did not support a mutual combat instruction;
    and (2) the mutual combat instruction misstated the law.
    1.     The Mutual Combat Instruction
    The trial court instructed with CALCRIM No. 3471, titled "Right to Self-defense:
    Mutual Combat or Initial Aggressor," as follows:
    "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, he then 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 agreement. That agreement may be expressly stated or implied
    and must occur before the claim to self-defense arose."
    9
    2.        Martinez's Argument That Insufficient Evidence Supported the Instruction
    Lacks Merit
    Martinez's first argument is that the instruction should not have been given to the
    jury because "there was insufficient evidence either that [Martinez] started the fight or
    that there was any agreement to fight."
    Martinez's argument relies on the principle that "[i]t is error to give an instruction
    which, while correctly stating a principle of law, has no application to the facts of the
    case." (People v. Guiton (1993) 
    4 Cal. 4th 1116
    , 1129.) "The trial court has the duty to
    instruct on general 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.' " (People
    v. Saddler (1979) 
    24 Cal. 3d 671
    , 681.)
    As an initial matter, we note that although Martinez now claims that insufficient
    evidence supported the instruction, he requested the instruction in the trial court by
    including it in his packet of requested instructions. Accordingly, the doctrine of invited
    error applies.
    " 'The doctrine of invited error is designed to prevent an accused from gaining a
    reversal on appeal because of an error made by the trial court at his behest. If defense
    counsel intentionally caused the trial court to err, the appellant cannot be heard to
    complain on appeal. . . . [I]t also must be clear that counsel acted for tactical reasons and
    not out of ignorance or mistake.' " (People v. Coffman and Marlow (2004) 
    34 Cal. 4th 1
    ,
    10
    49.) However, "[i]n cases involving an action affirmatively taken by defense counsel,"
    courts "have found a clearly implied tactical purpose to be sufficient to invoke the invited
    error rule." (Ibid.) Here, defense counsel clearly took the affirmative action of
    requesting that the trial court instruct the jury on mutual combat and never withdrew the
    request. Accordingly, under the doctrine of invited error, Martinez has forfeited the
    contention that insufficient evidence supported the giving of a jury instruction on mutual
    combat. (See People v. Jackson (1996) 
    13 Cal. 4th 1164
    , 1225 [defendant waived his
    appellate argument that insufficient evidence supported a jury instruction, as defendant
    requested the instruction in the trial court].)
    Even were we to reach the merits of Martinez's contention, we would reject it
    because the evidence does support the instruction.
    Although Martinez contends that the evidence does not show any agreement to
    engage in mutual combat, such an agreement may be implied from the evidence. (People
    v. Ross (2007) 
    155 Cal. App. 4th 1033
    , 1046, 1047 (Ross) [mutual combat may be based
    on an "express or implied" agreement to fight]; CALCRIM No. 3471 [a mutual
    agreement to fight "may be expressly stated or implied"].) Here, a reasonable juror could
    conclude that under a scenario in which (1) Martinez was shouting obscenities at
    Castrejon and making threatening gestures, and (2) Castrejon got out of his car and
    confronted Martinez in a violent manner, the two men had entered into an implied
    agreement to engage in mutual combat to settle their differences. Specifically, Castrejon
    testified that when Martinez walked back to confront him, Martinez said, "You want
    problems, you son of a bitch," and following that statement Castrejon got out of the car.
    11
    A reasonable juror could conclude that Martinez's specific words, coupled with
    Castrejon's act of getting out of the car, indicated an implied agreement between the two
    men that they would fight each other. Indeed, as both Castrejon and Christina testified,
    the two men started throwing punches at each other as soon as they were standing face-
    to-face.
    Sufficient evidence supports the instruction for a second reason. CALCRIM
    No. 3471, as given by the trial court, applies in two distinct circumstances: (1) where the
    defendant "engages in mutual combat"; and (2) where a defendant "starts a fight." Here,
    the evidence supports the instruction because there is sufficient evidence to support a
    finding that Martinez started the fight, regardless of whether the evidence supports a
    finding of mutual combat. Specifically, Christina testified that she saw Martinez punch
    through the open half of the driver's side window and make contact with Castrejon at
    least two times. Martinez's conduct can reasonably be understood as starting a fight as
    the initial aggressor.
    3.     The Instruction Did Not Misstate the Law
    Finally, Martinez contends that CALCRIM No. 3471 misstates the law regarding
    self-defense in the context of mutual combat.2 Although Martinez did not argue in the
    trial court that CALCRIM No. 3471 reflects an incorrect statement of the law, such an
    argument is not forfeited on appeal by failing to raise it below. (People v. Hudson (2006)
    
    38 Cal. 4th 1002
    , 1012 [forfeiture rule "does not apply when . . . the trial court gives an
    2      The trial court's instruction followed the text of CALCRIM No. 3471, without
    substantive change.
    12
    instruction that is an incorrect statement of the law"].) Accordingly, we will consider
    Martinez's argument. "The independent or de novo standard of review is applicable in
    assessing whether instructions correctly state the law." (People v. Posey (2004) 
    32 Cal. 4th 193
    , 218.)
    According to Martinez, CALCRIM No. 3471 misstates the law because, under
    controlling law, the agreement to engage in mutual combat must be reached before the
    initiation of hostilities. Accordingly, Martinez argues that two flaws are present in
    CALCRIM No. 3471: (1) instead of stating that the agreement to engage in mutual
    combat must precede the initiation of hostilities, the instruction incorrectly states that
    such an agreement may also consist of an agreement to continue an already-ongoing
    fight; and (2) instead of stating that the agreement to engage in mutual combat must
    precede the initiation of hostilities, the instruction states that the agreement to engage in
    mutual combat "must occur 'before the claim to self-defense arose.' "
    As authority for his argument, Martinez relies solely on Ross. At the time Ross
    was decided, the applicable jury instruction on self-defense in circumstances of mutual
    combat did not define the term "mutual combat." 
    (Ross, supra
    , 155 Cal.App.4th at
    p. 1043.) Ross therefore considered the "meaning of 'mutual combat' as that phrase is
    used in this state's law of self-defense." (Ibid.) CALCRIM No. 3471 specifically cites to
    Ross as support for its definition of mutual combat. (Judicial Council of Cal. Crim. Jury.
    Instns. (2016) CALCRIM No. 3471, Authority, p. 984.)
    Summarizing existing case law at the outset of its analysis, Ross explained that
    "[o]ld but intact case law confirms that as used in this state's law of self-defense, 'mutual
    13
    combat' means not merely a reciprocal exchange of blows but one pursuant to mutual
    intention, consent, or agreement preceding the initiation of hostilities." 
    (Ross, supra
    , 155
    Cal.App.4th at p. 1045.) Ross then fleshed out this initial statement by engaging in an
    extensive review of the case law.
    Ross began its review of the case law by observing that in the "lead case" of
    People v. Fowler (1918) 
    178 Cal. 657
    , our Supreme Court stated that " 'the phrase
    "mutual combat" has been in general use to designate the branch of the law of self-
    defense relating to homicides committed in the course of a duel or other fight begun or
    continued by mutual consent or agreement, express or implied.' " 
    (Ross, supra
    , 155
    Cal.App.4th at p. 1045, quoting Fowler, at p. 671, italics modified from original.) Ross
    then synthesized its review by arriving at the following summary of the law: "We are
    satisfied that 'mutual combat' consists of fighting by mutual intention or consent, as most
    clearly reflected in an express or implied agreement to fight. The agreement need not
    have all the characteristics of a legally binding contract; indeed, it necessarily lacks at
    least one such characteristic: a lawful object. But there must be evidence from which the
    jury could reasonably find that both combatants actually consented or intended to fight
    before the claimed occasion for self-defense arose." (Id. at pp. 1046-1047, italics
    modified from original.)3
    3       Similarly, in a footnote, Ross explains that the "common intention or desire [to
    fight] must precede the first assaultive conduct, or at least the first conduct sufficient to
    trigger a right of self-defense in its target." 
    (Ross, supra
    , 155 Cal.App.4th at p. 1045,
    fn. 14, italics added.)
    14
    In arguing that CALCRIM No. 3471 is flawed because Ross requires that the
    agreement to engage in mutual combat must occur before the initiation of hostilities,
    rather than as an agreement to continue a fight or as an agreement made before the right
    to self-defense arises, Martinez incorrectly takes a single statement in Ross out of
    context. Although, as we have described, Ross initially summarizes the "[o]ld but intact"
    case law by stating that mutual combat must be "pursuant to mutual intention, consent, or
    agreement preceding the initiation of hostilities" 
    (Ross, supra
    , 155 Cal.App.4th at
    p. 1045, italics modified from original), the subsequent discussion in Ross, which we
    have quoted above, expands on this statement and makes clear both that (1) mutual
    combat includes an agreement to continue a fight, and (2) there need only be evidence
    that both combatants consented or intended to fight before the occasion for self-defense
    arose. (Id. at pp. 1045, 1047.)4 Therefore, we find no merit to Martinez's argument that
    CALCRIM No. 3471 is inconsistent with the law as stated in Ross.
    In his reply brief, Martinez appears to make a third challenge to CALCRIM
    No. 3471, in which he argues that the instruction is misleading because it does not require
    the jury to determine whether the parties agreed to engage in mutual combat. Martinez
    4      Martinez claims that Ross cannot have intended to define mutual combat to
    include an agreement to continue a fight because that would create a risk that a
    defendant's conduct of fighting back in self-defense "may become mutual combat simply
    because the person exercising his self-defense right 'continues' the fight by fighting
    back." We disagree. Because both Ross and CALCRIM No. 3471 also specify that an
    agreement to engage in mutual combat can only come about before the right to self-
    defense arises, there is no risk that a defendant will be precluded from claiming self-
    defense in the event that he continues to fight simply to defend himself from imminent
    bodily injury.
    15
    contends that the instruction improperly permits the jury to simply assume there was such
    an agreement. Specifically, Martinez argues, "CALCRIM No. 3471 . . . did not instruct
    the jury that it must first find [Martinez] and Castrejon mutually agreed to fight" and did
    not "make clear that there must be proof of an agreement to fight." Looking to the text of
    the instruction, we reject the argument.5
    CALCRIM No. 3471 states that "[a] person who engages in mutual combat" must
    meet the three requirements set forth in the instruction to claim self-defense. The
    instruction then gives the jury a definition of mutual combat so that it may determine
    whether the instruction applies: "A fight is mutual combat when it began or continued by
    mutual consent or agreement." In light of this language, it is clear that the instruction is
    calling upon the jury to make a determination of whether there was an agreement to
    engage in mutual combat, and we perceive no reasonable likelihood that the instruction
    would be interpreted in the manner identified by Martinez, under which the jury is
    allowed to assume that an agreement existed. 
    (Cross, supra
    , 45 Cal.4th at pp. 67-68
    [defendant must demonstrate a reasonable likelihood that the jury instruction was
    understood as he interprets it].)
    In sum, we reject Martinez's argument that CALCRIM No. 3471 contains
    incorrect or misleading statements of law.
    5      Although we may elect not to address an argument made for the first time in a
    reply brief (People v. Zamudio (2008) 
    43 Cal. 4th 327
    , 353), in this instance we exercise
    our discretion to do so.
    16
    DISPOSITION
    The judgment is affirmed.
    IRION, J.
    WE CONCUR:
    MCCONNELL, P. J.
    BENKE, J.
    17