2015 #27 self defense weekly law report

Law of Self Defense: Weekly Law Report 2015 #27 (June 22-26, 2015)__________________________________________________________________________________________

__________________________________________________________________________________________ 2015 www.lawofselfdefense.com Page 1 of 45

Frequently Asked Questions

Q: What is the Law of Self Defense: Law Report Weekly?

A: Each week Law of Self Defense staff review self-defense court decisions from around the country. Those we find most interesting are summarized in each weeks Law of Self Defense: Weekly Law Report. The cases are organized by state, in alphabetical order, first listed in summary fashion in the Table of Contents

and then by individual case.

Q: The Law of Self Defense is well-known for translating the legalese of self-defense law into plain English easily understood by non-lawyers, as you do in your books, seminars, online training, and blog posts. Is the same effort made to translate the cases in these Weekly Reports into plain English?

A: Im afraid not. Translating legalese into plain English takes a lot of effort, and simply isnt tenable for weekly reports of this type. Therefore we consider these reports a graduate-level product, for people who already have a solid understanding of the legal principles of self-defense law. To get up to speed we

encourage you to start with our best-selling book, The Law of Self-Defense, 2nd Edition, (also available from Amazon in print and Kindle, the NRA Store, and Gun Digest) which covers all 50 states at a high level.

You may also consider one of our state-specific live Law of Self Defense Seminars held all over the country or state-specific online training classes. And, of course, theres always the Law of Self Defense Blog.

Q: Do you recount each of the cases in their entirety?

A: No. Many cases that involve issues of self-defense also involve other issues unrelated to self-defense; we only summarize the portions of the cases that directly involve issues of self-defense law. What we do include are the case citation, a list of the key self-defense law issues covered in that case, the date of the

decision, and the text of the decision that discusses the specific self-defense laws of interest.

The goal is to provide the reader with an efficient way of deciding if they want to read the entire case.

Q: What if I want to read the entire case?

A: Every case summarized here is hyperlinked back to the full-length version of that case. We do, in fact, strongly encourage you to read the entire text of any cases of particular interest to you, as that is the best

way to understand the fullest context of the courts decisions.



Table of Contents

CALIFORNIA

People v. Green, 2015 Cal. App. Unpub. LEXIS 4408 (CA Ct. App. 2015)

Key issues:

Self-defense, elements Burden of production, on the defendant Mutual combat, elements Innocence, recovering via withdrawal

Date: June 23, 2015

People v. Delgado, 2015 Cal. App. Unpub. LEXIS 4375 (CA Ct. App. 2015)

Key issues:

Innocence, recovering, escalation Innocence, mutual combat Innocence, first aggressor Avoidance, withdrawal, when safely possible

Date: June 22, 2015

MINNESOTA

State v. Welle, 2015 Minn. LEXIS 368 (MN Supreme Court 2015)

Key issues:

Innocence, first aggressor; relevance of history of claiming self-defense

Date: June 24, 2015

OHIO

State v. Bradley, 2015 Ohio App. LEXIS 2388 (OH Ct. App. 2015)

Key issues:

Burden of persuasion on the defendant, by a preponderance of the evidence Self-defense, elements, cumulative

Date: June 23, 2015

Page

5

15

25

31



PENNSYLVANIA

Commonwealth v. Rankin, 2015 Pa. Super. Unpub. LEXIS 1905 (PA Superior Court 2015)

Key issues:

Self-defense, elements Proportionality, deadly v. non-deadly force Innocence, first aggressor, provocation Avoidance, duty-to-retreat

Date: June 24, 2015

WASHINGTON

State v. Thomas, 2015 Wash. App. LEXIS 1312 (WA Ct. app. 2015)

Key issues:

Burden of production on the defendant Burden of persuasion on the State, beyond a reasonable doubt

Date: June 22, 2015

Page

37

42



CALIFORNIA

People v. Green, 2015 Cal. App. Unpub. LEXIS 4408 (CA Ct. App. 2015)

Key issues:

Self-defense, elements

Burden of production, on the defendant

Mutual combat, elements

Innocence, recovering via withdrawal

Date: June 23, 2015

Decision:

INTRODUCTION

This case arises out of a racially-motivated attack on Thomas Johnson by defendant Brian Clay Green,

Gunnar Stine and Jacob Gurfinkiel.1 The jury convicted defendant of attempted murder (

664/187, subd. (a)), assault with a deadly weapon or by force likely to cause great bodily injury ( 245,

subd. (a)(1)), and making criminal threats ( 422).2 In regard to the attempted murder conviction, the jury

found true the allegations that defendant personally inflicted great bodily injury ( 12022.7, subd. (a)) and

that the offense was a hate crime committed in concert with others ( 422.75, subd. (b)).3 In regard

to the assault conviction, the jury found true the allegations that defendant personally used a deadly

weapon, a knife ( 12022, subd. (b)(1)); that he personally inflicted great bodily injury ( 12022.7,

subd. (a)), and that the offense was a hate crime committed in concert with others ( 422.75, subd.

(b)). In regard to the criminal threats conviction, the jury found true the allegations that defendant

personally used a deadly weapon, a knife ( 12022, subd. (b)(1)) and that the offense was a hate crime

committed in concert with others ( 422.75, subd. (b)).

After the jury rendered its verdicts, a bench trial was

conducted in which the trial court found that defendant had suffered two prior serious felony

convictions within the meaning of the Three Strikes law ( 667, subd. (a)(1), 667, subds. (b)-(i), 1170.12,

subds. (a)-(d)) and section 667, subdivision (a)(1). The trial court sentenced defendant to an aggregate

term of 125 years plus three consecutive life terms.

In his appeal, defendant raised three claims of instructional error: (1) the trial court erred in failing to

instruct on the principles of self-defense, defense of others and mutual combat; (2) the trial had a sua

sponte duty to instruct on the lesser included offense of attempted voluntary manslaughter; and (3) the trial

court erred in rejecting defense counsel's request for the unanimity instruction. Next, defendant urged that

his sentence violated section 654. Lastly, defendant contended that trial counsel provided ineffective

assistance because he failed to object to the admission of defendant's pretrial interview with two



detectives, an interview that defendant claims, for the first time on appeal, was coerced.

In our opinion, filed on January 7, 2015, we found no prejudicial error and, other than correcting a minor

error in the award of pre-sentence custody credit, affirmed the judgment.

Defendant filed a petition for review in the California

Supreme Court. He raised only two contentions: (1) the trial court's rejection of his request for the

unanimity instruction constituted prejudicial error; and (2) his sentence violated section 654.

The California Supreme Court granted review but not

on the issues raised by defendant. Instead, it transferred the case to us "with directions to consider

whether to remand to the trial court for resentencing in accordance with Penal Code section 667,

subdivision (e)(2)(A) (see People v. Smith (2001) 24 Cal.4th 849, 852 [exception to the waiver rule for

unauthorized sentence].)" (See Cal. Rules of Court, rules 8.500(b) & 8.528(d).)

We directed the parties to file letter briefs addressing

our Supreme Court's order. (See Cal. Rules of Court, rule 8.200(b)(1).) Having received and reviewed those

letters, we conclude that the trial court erred in two respects in calculating defendant's sentence but that

a remand is not necessary to correct those errors. Instead, we re-file our earlier opinion with the addition

of a new section G ("Sentencing") and dispositional paragraph correcting the sentencing errors.

STATEMENT OF FACTS

A. Factual Overview

The crimes were committed around midnight on

February 16, 2008. Johnson, the victim, is black.

Johnson was accompanied by his roommate Daniel Boston, who is white, when he (Johnson) was

attacked by defendant, Stine and Gurfinkiel. During the attack, Johnson was punched, kicked, stabbed

and threatened as the men yelled multiple racist epithets. Defendant is a member of the SFV

Peckerwoods, a white-supremacist gang in the San Fernando Valley. Stine and Gurfinkiel are members of

the Chatsworth Skinheads, another white-supremacist gang. The two gangs share a hatred of

African-Americans. It is common for the two gangs to commit crimes together.

On the day of the attack, Johnson was 26 years old,

five feet six inches tall and weighed 145 pounds. Boston was between 19 and 21 years old, weighed

130 to 135 pounds and was five feet, eight or nine inches tall.4 Defendant was 27 years old. He weighed

220 pounds and was five feet 11 inches tall. Stine was 17 years old, five feet eight inches tall, and

weighed between 130 to 140 pounds. Gurfinkiel was almost 18 years old, five feet, seven inches tall, and

weighed 140 pounds.

Defendant testified at trial and denied attacking Johnson. Defendant claimed that Stine assaulted

Johnson and that he (defendant) entered the struggle to stop it.

B. The Prosecution's Case-in-Chief

1. Johnson's Testimony

At approximately midnight on the evening of February

16, 2008, Johnson and Boston were walking on Winnetka Avenue in the San Fernando Valley,

heading towards their home. Johnson and Boston were on the opposite side of the street from

defendant, Stine and Gurfinkiel. Johnson heard a



man say, in an "aggressive, angry tone[,]" "There is a fucking nigger over there." Johnson ignored the

statement and continued to walk with Boston as a man stated: "What are you doing over here,

nigger[?]." To get home, Johnson and Boston needed to cross the street. To minimize the potential of any

confrontation, they crossed to the north of the three men. Everyone was now on the same side of the

street.

Johnson "heard footsteps coming towards [him], running towards [him] at a fast pace." Johnson turned

around and Stine threw a "knock-out-punch" at him. Johnson ducked and Stine's punch "missed."

Johnson testified: "I kind of went back and I hit him [Stine] and he fell to the ground. . . . I kind of just put

my hand on his chest or, like, upper neck area and I kneeled on the ground, [and] was asking him if he

knew me or what his problem was." (When Johnson first turned around, he saw defendant and Gurfinkiel

standing next to a car.)

Johnson knelt with one knee on the ground and used one arm to try "to hold [Stine] in place." Suddenly,

defendant came up and kicked Johnson "pretty hard" on the left side of his face. Defendant tried to kick

Johnson again but Johnson used his "arm to sweep [defendant's] leg away." Johnson looked up at

defendant and said: "Are you guys going to jump me now or whatever?" Defendant came around to

Johnson's back, put his arm around him and pointed a knife within one or two inches of Johnson's eyes.

Defendant said "Fuck you, nigger" and told Johnson that if he did not "get off his friend [Stine], he [was]

going to cut [his] fucking throat." Johnson, believing his life was in danger, pushed defendant's hand away,

jumped up, and started boxing with defendant. Stine stood up and joined defendant in fighting Johnson.

Johnson punched Stine in the face.

Gurfinkiel ran toward Johnson and joined in the

attack. Johnson hit Gurfinkiel before Gurfinkiel could hit him. Gurfinkiel said: "Fucking nigger[] hit me in the

face." Defendant, Stine, and Gurfinkiel formed a circle around Johnson, and "operat[ing] as a team," hit him.

Defendant was behind Johnson most of the time as the three men punched him. Johnson tried to get out

of the circle but defendant and Stine pushed him back.

At one point, Johnson saw that he was bleeding

"everywhere." Johnson "kind of stopped" fighting and, accompanied by Boston, "rush[ed]" back to their

home. As he left the scene, Johnson heard bottles breaking. One of his three assailants stated: "It's time

for some white power on this motherfucker" and "Heil Hitler."

Johnson and Boston returned home and contacted

the paramedics. Johnson was transported to the hospital. He had been stabbed twice, once in his

lower back and once in his upper back. The latter stab punctured his right lung and would have been fatal if

he had not quickly received medical treatment. Johnson underwent surgery and was hospitalized for

several weeks. In addition, his vision "is worse in [his] left eye than it is in [the] right eye."

Boston did not help Johnson during the attack. During

the assault, one of the three men called Boston "a fucking nigger lover."

2. Testimony from Two Eyewitnesses

Shortly before their attack on Johnson, defendant,

Gurfinkiel and Stine had been at a party. They, along with three young women, left the party and drove to

Gurfinkiel's home. It was at that location that



defendant and his accomplices attacked Johnson. At trial, two of the women, Kirsten Marlow and

Samantha Parker, testified for the People.

a. Marlow's Testimony

Marlow testified that the group arrived by car at Gurfinkiel's home. Marlow saw Johnson and Boston

walking in their direction on the opposite side of the street. Everyone except Stine exited the car.

Defendant first said: "If you yell nigger, [Stine will] come out of the car." and then he yelled "Nigger." As

Johnson and Boston crossed the street in his direction, Stine left the car and yelled: "What the hell

are you staring at, you dumb nigger?" Stine ran towards Johnson and "[t]hat's when the fight started

breaking out." Johnson and Stine were "fighting on the ground," "[t]hey were all just in a fight" for a "few

minutes." Johnson did not have any weapon in his hand during the fight. Defendant approached the fight

and "kicked [Johnson] in the head." At some point, Gurfinkiel joined the fight. According to Marlow,

Johnson hit Gurfinkiel "for self-defense." Marlow did not see who stabbed Johnson.

Eventually, the three men, Marlow and Parker

retreated to Gurfinkiel's home. Defendant and Stine each had a bloody knife. Defendant told the group:

"Look what I did. I stabbed the nigger."

Initially, Marlow did not speak with the police about the events. She "fear[ed]" for her "life" because

defendant, Stine and Gurfinkiel were white supremacists.

b. Parker's Testimony

Parker testified that she, Marlow and another women

had been at a party with defendant, Gurfinkiel and

Stine. The men had been drinking. The six of them left by car to return to Gurfinkiel's home. When they

arrived, everyone left the car except for Stine. Defendant told the group that he knew how to get

Stine out of the car. Defendant then stated: "There is a fucking nigger." Marlow saw Johnson and Boston

walking on the other side of the street. Stine left the car and pursued Johnson. As Stine approached

Johnson, Stine made a Nazi salute and loudly said: "Nigger" and "White Power." At the same time,

defendant shouted "White Power."

When Stine reached Johnson, Stine threw the first blow and "[t]hey started fighting." Defendant joined

the fight as Johnson and Stine "were wrestling on the ground." Defendant kicked Johnson "pretty hard" in

the face. Soon, Gurfinkiel joined the fight, "yelling out racial stuff." The three men "piled on [Johnson]," "all

attacking [him] at the same time." "Towards the very end of the fight," Gurfinkiel gave a Nazi salute. The

fight ended when Johnson, who was bleeding, "[got] up and [left]" with Boston. As Johnson was "walking

[away] real quick," Gurfinkiel walked towards him but defendant held him back. Marlow did not see who

stabbed Johnson.

The three men and the women went to Gurfinkiel's home. Defendant showed Parker a bloody knife and

said: "I stabbed a fucking nigger." Parker saw that Stine also had a knife.

C. The Defense Case

1. Defendant's Testimony

Defendant testified at trial on his own behalf as

follows.



He and the others arrived by car at Gurfinkiel's home. He (defendant) was intoxicated and Stine "was

drunk." Defendant pulled Stine out of the car. Johnson and Boston walked near them on the other side of the

street. Gurfinkiel yelled: "What the fuck are you doing?" Johnson and Boston crossed the street

immediately in front of their car. From defendant's point of view, Johnson became the aggressor at this

point. Defendant explained: "If we say something to him and he doesn't want to engage or isn't involved in

it, why didn't he just keep walking . . . instead of crossing the street to where we were at in front of

us?"

Stine approached Johnson and Boston. Stine started "talking smack to the5; and they [Johnson and

Boston] started talking smack back, and [Johnson] threw a beer bottle and then they started

fighting." (The bottle did not hit anyone.)

Stine and Johnson punched each other and fell to the ground where they continued to fight. Johnson "was

straddling [Stine], punching [him] in the head and torso area." Stine was trying to fight back. Meanwhile,

Gurfinkiel "was talking trash" with Boston.

At that point, Marlow and Parker were "yelling and screaming" and Gurfinkiel's mother came out of her

home "and was yelling at [defendant] that they were fighting, to stop them." (Italics added.) Defendant told

Marlow, Parker and Gurfinkiel's mother to calm down. After the women "had calmed down some," defendant

approached "and tried to pull [Johnson] off the top of [Stine]." Defendant testified that he "was trying to

break up the fight because they were drunk." He "was trying to stop the altercation and incident so that

nobody got in trouble." Defendant grabbed "Johnson by his shoulders to pull him off" of Stine but he

(defendant) slipped on the wet grass and fell.

Johnson and defendant were soon on their feet. Stine remained on the ground "a little bit longer" "because

he was drunk." Defendant told Johnson to "just, get the fuck out of here."

Defendant and Johnson "kind of squared off" but then

Gurfinkiel "came back up" behind Johnson and "either pushed him or punched him." Stine stood up and

attempted to join the fight. Defendant grabbed Stine, "wrapped him up like a bear[,] . . . wrapped [his] arms

around [Stine], holding him" and pulled him towards Gurfinkiel's home in an effort to stop Stine from

fighting again. Stine "jerked away" and "went after" Boston who was walking away. Stine yelled to Boston:

"Come back here, mother fucker; it's white power." Boston ran away so Stine rejoined the fight between

Johnson and Gurfinkiel. Defendant "yell[ed] at them to get the fuck in the house." Boston started walking

back towards the melee. Defendant testified that at that moment, he "grabbed [Stine] again and

[Gurfinkiel's] mother grabbed [Gurfinkiel], and we pulled them back" and Johnson "walked off."

Defendant did not "recall ever kicking [Johnson] in his

face" but conceded that when they fell down, he "may have" "kicked him in his shoulder." Defendant claimed

that "there wasn't a time all three of us [defendant, Stine and Johnson] were fighting. I'm trying to break

up the fight." (Italics added.)

Defendant denied having a knife, having threatened to cut Johnson's throat, having stabbed Johnson,

having seen anyone stab Johnson, or having said "nigger" during the incident.

Defendant claimed that after the fight had ended, he

saw Stine's bloody knife on the sidewalk. Defendant picked up the knife and took it with him to Gurfinkiel's

home. Defendant asked Stine if he (Stine) had



stabbed Johnson. Stine replied "that he just cut himself."

In regard to gang affiliation, defendant denied being a

member of the SFV Peckerwoods but testified that he believed in "White Power" which he defined as

"procreation," "[w]hite people with white people[,]" "sticking with my own."

2. Impeachment of Defendant Through His 2008 Interview With the Police

The police arrested defendant on November 12, 2008. That day, Detectives Fajardo and Doerbecker

interviewed him. The interview was tape recorded. During cross-examination of defendant, the

prosecutor sought to enter the interview into evidence.6 The defense did not object.7 The tape

recording was played for the jury and a transcript of the interview was entered into evidence.8

As will be explained in more detail when we discuss

defendant's contention that trial counsel provided ineffective assistance because he failed to object to

the introduction of the interview, defendant's statements to the police were, in large part, consistent

with his trial testimony. He denied attacking or stabbing Johnson and claimed he entered the fight

only to stop it.

However, some of his statements were inconsistent with his trial testimony. Defendant did not tell the

detectives that Johnson had been the aggressor, either by crossing the street, talking "smack," or

throwing a beer bottle and, at one point, defendant conceded to the detectives that Johnson fought only

in self-defense. While defendant testified that he did not know who stabbed Johnson, defendant

repeatedly told the detectives that Stine had stabbed

Johnson and that he (defendant) knew where to find the knife Stine had used.

In addition, defendant, in the interview, set forth a

more racially charged context for the fight and described a more aggressive Stine than he had in his

trial testimony. Defendant told the detectives that the incident started when Stine called Johnson a "fucken

nigger" and "ran up from the car[], . . . swinging at [Johnson] [whereupon the two men] started fighting."

Defendant also gave the detectives a different

chronology of the latter part of the struggle and his role in it. As opposed to his trial testimony in which he

claimed that only Stine was fighting with Johnson, defendant told the detectives that Johnson was

"beating [Stine] up and then [Gurfinkiel] ran over and started fighting with [Johnson]." Defendant "ran over

there" to pull Stine and Gurfinkiel off of Johnson because "they had gained the upper hand again."

DISCUSSION

A. FAILURE TO INSTRUCT ON SELF-DEFENSE, DEFENSE OF OTHERS AND MUTUAL COMBAT

Defendant contends that the trial court committed prejudicial error because it failed sua sponte to

instruct on the theories of self-defense, defense of others and mutual combat. We disagree.

1. Factual Background

Before closing argument, the trial court instructed the

jury. The court read, among other instructions, CALJIC No. 9.00 which defines assault. The last

paragraph of that instruction reads: "A willful application of physical force upon the person of

another is not unlawful when done in self-defense or



in defense of others. The People have the burden to prove that the application of physical force was not in

lawful self-defense or defense of others. If you have a reasonable doubt that the application of physical force

was unlawful, you must find the defendant not guilty."

After the trial court finished reading the instructions to the jury, the prosecutor requested a sidebar

conference. The following exchange occurred.

"[THE PROSECUTOR]: I believe that [the last paragraph in CALJIC No. 9.00] is inapplicable

here. Defense has not sought any self-defense instructions and, in fact, there is a series of

instructions in the 5 section [of CALJIC] indicating that they shouldn't be available in this case. . . . I

would ask it be stricken from the written copy. . . .

"THE COURT: [Defense counsel?]

"[DEFENSE COUNSEL]: Well, we heard testimony from the defendant, defense of others.

"[THE PROSECUTOR]: Well, the thing is, though,

that that is a genuine defense that requires supplemental instructions that defense counsel

did not ask for and, in fact, it's mutual combat. It's contrived. There was the failure to retreat from

the fight. There was a whole series of instructions that would have been relevant.

"[The last] paragraph [of CALJIC No. 9.00] is not

merited under these facts. . . . I think that putting it in front of the jury is raising an issue that

defense, so far, has not raised, and it would be likely to lead to confusion if we have it in front of

them.

"[DEFENSE COUNSEL]: Again, he [defendant] testified one of the reasons that he got involved in

this was to pull Mr. Johnson off of Mr. Stine . . . because he was getting beat up.

"[THE PROSECUTOR]: But if defense intends to

argue that and wants to rely upon that paragraph, there is a whole series of instructions which are

actually not favorable to this defendant dealing with mutual combat, contrived self-defense, et

cetera. That paragraph [in CALJIC No. 9.00] is not the way to do it.

"If defense counsel wants to litigate whether he

can be allowed to give other instructions, that's a separate issue, but that paragraph would need to

be accompanied by those instructions and should not be in front of the jury right now.

"[DEFENSE COUNSEL]: I think those other

instructions are sua sponte. . . .

"THE COURT: . . . We spent three days going over jury instructions, and I asked both counsel

numerous occasions if there were any other instructions that were required or requested.

"And I specifically asked [defense counsel] twice if there were any instructions that were being

requested, and none were requested.9

"[DEFENSE COUNSEL]: I'm satisfied with the jury instruction that we have here.

"[THE PROSECUTOR]: I think legally that

argument is unsupportable because that bracketed paragraph which one would . . . have

expected to have been stricken requires genuine instructions that weren't requested.



"I will submit on that, Your Honor.

"THE COURT: At this point in time, I am going to strike the self-defense paragraph 9.00.

"And I guess we are going to just send the jury

away and litigate the other issues regarding the other instructions if defense is seeking to add

them at this point in time.

"[DEFENSE COUNSEL]: Well, I believe, even if that is struck, I can argue to the jury that that fact

itself of him pulling someone away goes to his intent to commit a crime and is a specific intent,

also.

"THE COURT: So you are not going to argue self-defense, then. Because if you are going to argue

self-defense, we are going to have the self-defense instructions, with which there are a series

of those.

"I know [the] People, obviously, can argue that it was contrived and not legitimate self-defense; so

they may or may not be given. This is why I asked for jury instructions at the beginning of trial so we

are all on the same page and we don't hold the jury up.

"[DEFENSE COUNSEL]: I understand.

"Then - I am still able to argue his act, however it

may be characterized on the issue of his specific intent.

"THE COURT: Of course. . . .

"[THE PROSECUTOR]: I think that's legally not

supportable [for defense counsel to argue self-

defense or defense of others]. The thing I think defense counsel can argue is that the physical

action of the defendant was intended not to promote the fight, but to pull someone out of it.

But as to legally arguing it was defense of another, if defense counsel starts to make that

argument, I would be entitled to a series of instructions which would invalidate that claim.

"[DEFENSE COUNSEL]: I will submit.

"THE COURT: . . . . I will strike [the last]

paragraph [of CALJIC No. 9.00] and . . . will just go with argument of counsel. We won't include

the extra instructions because testimony of the defendant seemed to be pretty clear that he was

trying to break up the fight that was happening." (Italics added.)

Proceedings resumed in the jury's presence. The trial

court stated: "With respect to the assault charge[,] the jurors are not to consider self-defense or defense of

others, so that paragraph will be stricken." The trial court then reread CALJIC No. 9.00 to the jury,

omitting the paragraph set forth earlier. The court also struck that paragraph from the written instruction

submitted to the jury.

In closing argument, defense counsel urged, among other points, that defendant lacked any criminal intent

because "when you look at the totality of the actions, according to [defendant], he tried to break up this

fight."

2. Discussion

Defendant contends that the trial court erred "by failing to instruct the jury sua sponte on self defense/

defense of others and mutual combat."



The parties agree that "a defendant has a right to

have the trial court, on its own initiative, give a jury instruction on any affirmative defense for which the

record contains substantial evidence [citation] -- evidence sufficient for a reasonable jury to find in

favor of defendant [citation] -- unless the defense is inconsistent with the defendant's theory of the case

[citation]. In determining whether the evidence is sufficient to warrant a jury instruction, the trial court

does not determine the credibility of the defense evidence, but only whether 'there was evidence

which, if believed by the jury, was sufficient to raise a reasonable doubt . . . .'" (People v. Salas (2006) 37

Cal.4th 967, 982.) But if the evidence of the purported defense(s) is minimal or insubstantial there is no duty

to instruct on them. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.)

In this case, however, defendant misframes the issue

as being whether the trial court had a sua sponte duty to instruct upon self-defense, defense of others, or

mutual combat. As can be seen from the colloquy set forth above, the trial court and the parties discussed

whether these very instructions were warranted. The court ultimately ruled that it would not submit the

instructions "because testimony of the defendant seemed to be pretty clear that he was trying to break

up the fight that was happening." Thus, the issue is not whether the trial court had a sua sponte duty to

instruct but, instead, whether the trial court, once the issue of these additional instructions had been

brought to its attention, correctly ruled that the record did not contain substantial evidence to support their

submission. We conclude that the trial court's ruling was correct.

Self-defense or defense of others requires the

defendant: (1) to reasonably believe that bodily injury

is about to be inflicted upon himself or a third person and (2) to use the force reasonably necessary to

prevent that imminent harm. (CALJIC Nos. 5.30 & 5.32.) It is the prosecution's burden to prove beyond a

reasonable doubt that the defendant did not act in exercise of one of those defenses. (See CALJIC No.

9.00.) If the jury entertains a reasonable doubt whether the defendant's use of force was lawful, it

must find the defendant not guilty. (Ibid.)

Here, nothing in the People's case suggested that defendant acted in self-defense or defense of others.

Johnson's testimony and the testimony of the two eyewitnesses (Marlow and Parker) described, in

detail, an unprovoked and vicious attack fueled by racial hatred in which Johnson was the only individual

who acted in self-defense.

In the defense case, defendant never testified that he acted to defend either Stine or himself. Instead,

defendant, on multiple occasions, testified that the reason he entered the fight between Stine and

Johnson was to end it. Defendant explained that he intervened after Gurfinkiel's mother asked him to stop

the fight. Defendant testified that he "was trying to break up the fight because they were drunk"; that he

"was trying to stop the altercation and incident so that nobody got in trouble"; and that he was "trying to

break up the fight." None of defendant's testimony supports his appellate argument that he "reasonably

perceived Mr. Stine to be in imminent danger" so that he acted first out of a desire to defend Stine and later

a desire to defend himself. Stated another way, defendant failed to present substantial evidence that

could persuade a reasonable jury to entertain a reasonable doubt that he (defendant) acted lawfully,

e. g., to defend Stine or himself. (See, e.g., People v. Kanawyer (2003) 113 Cal.App.4th 1233, 1243.) The



trial court therefore did not err in declining to instruct on those defenses.10

Lastly, we reject defendant's argument that the trial

court erred in failing to submit CALCRIM No. 3471, the pattern instruction about mutual combat. Mutual

combat "consists of fighting by mutual intention or consent, as most clearly reflected in an express or

implied agreement to fight." (People v. Ross (2007) 155 Cal.App.4th 1033, 1046-1047.) CALCRIM No.

3471 sets forth the specific actions that a person who engages in mutual combat must take before he can

claim self-defense: (1) he must actually and in good faith try to stop fighting; (2) he must communicate to

his opponent, by words or conduct, his intent to stop the fight; and (3) he must give his opponent a chance

to stop fighting. If a defendant's actions fulfill all of those requirements but the opponent continues to

fight, then the defendant has a right to act in self-defense.

In this appeal, defendant argues: "The fight was

mutual combat when it began because all testimony agreed that [the victim Johnson] crossed the street to

[defendant's] and his friends' location when it was not necessary for him to do so. Thus, when the fight

began and continued it was by implied consent or agreement." Based upon that characterization of the

record, defendant contends that the trial erred in not submitting an instruction about mutual combat. We

are not persuaded.

The trial court is required to instruct on mutual combat

only if there is substantial 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." (People v.

Ross, supra, 155 Cal.App.4th at p. 1047.) The singular fact that Johnson and Boston crossed the

street (a lawful act) does not constitute substantial evidence that Johnson agreed to engage in combat

with defendant or his accomplices. In a similar vein, defendant's testimony that Johnson threw a bottle that

did not hit anyone does not constitute substantial evidence from which a reasonable jury could find that

Johnson agreed to fight. Further, there was no absolutely no evidence that, after the fight began,

defendant (or Stine or Gurfinkiel for that matter) ever communicated to Johnson an intent to end the fight.

Thus, the predicate requirements for the instruction were not supported by substantial evidence. In sum,

the trial court properly found that the record did not warrant an instruction on mutual combat.

[ ]

In all other respects, the judgment is affirmed.

__________________________________________________________________________________________



CALIFORNIA

People v. Delgado, 2015 Cal. App. Unpub. LEXIS 4375 (CA Ct. App. 2015)

Key issues:

Innocence, recovering, escalation

Innocence, mutual combat

Innocence, first aggressor

Avoidance, withdrawal, when safely possible

Date: June 22, 2015

Decision:

Defendant Floyd Ernest Delgado was convicted by a jury of the lesser-included offenses of voluntary

manslaughter (Pen. Code, 192, subd. (a))1 and assault with a deadly weapon ( 245) following his

acquittal on charges of murder ( 187) and attempted premeditated murder ( 187, 189, 664). He was

sentenced to a total term of 12 years in prison.

We find no error and will affirm the judgment.

I. Factual and Procedural Background

A. The prosecution's case

On January 11, 2012, Delgado, Joseph Correa and Ralph Ojeda were charged by amended information

with one count of murder (victim Michael Hazard) ( 187, count 1) and one count of attempted murder

(victim Hamilton Hyatt) ( 187, 189, 664, count 2).3

In connection with count 1, the information specially alleged that Delgado personally used a deadly

weapon ( 12022, subd. (b)(1)), and further alleged that he had suffered one prior strike conviction (

667, subds. (b)-(i), 1170.12), and one prior serious felony conviction ( 667, subd. (a)).

1. Rochelle Tinsley's testimony

Tinsley lived in an apartment complex at 711 Northrup

Street, in San Jose. On April 26, 2009, at approximately 12:30 or 12:45 p.m., Tinsley heard

people arguing in the parking lot, so she looked out the window. Three Hispanic men and a "chubby"

African-American man, later identified as Hyatt, were standing in the parking lot below her window. One of

the Hispanic men, who Tinsley identified at trial as Delgado, and Hyatt were facing off against each

other, each of them in a fighting stance. Hyatt loudly asked Delgado, "What's up, motherfucker?"

According to Tinsley, Hyatt had his fists up, but she did not see any weapons in his hands. Delgado pulled

out a knife, at which point Hyatt took three steps backward, before he turned and ran toward a carport.

Delgado, still holding the knife, and another of the Hispanic men chased after him.



About 10 seconds later, Tinsley saw Hazard run into the carport and try to kick the second Hispanic man in

the stomach. The second man grabbed Hazard's foot, and Hazard fell to the ground. Delgado stabbed

Hazard in the neck as he tried to get up. Hazard made it to his feet, holding his neck, and Tinsley could

see blood. Hazard went back to his vehicle and drove away.

2. Hyatt's testimony

Hyatt dated Delgado's sister, Rachel Duran, for nearly

five years. Hyatt testified that he believed he had a good relationship with Delgado overall, saying "We

were cool. We were friends."

On the evening of April 25, Hyatt went to a nightclub with Duran and a number of friends to celebrate

several of their friends' birthdays. Hyatt's cousin, Hazard, was also at the nightclub.

When the club closed, Hyatt and Duran, and some of

their friends, went to the apartment of Hazard's girlfriend. At some point, Duran's female cousin went

downstairs with one of Hyatt's male friends, and Hyatt said, "Dang, that's how you hoes get down?" Duran

took offense to this remark and she began to argue with Hyatt.

During the argument, Hyatt revealed he had been

"messing with another girl and she might be pregnant." Duran slapped Hyatt, "she just flashed on

me when I told her that, and she started slapping me and shit and throwing stuff at me," but "I never

touched her, not once." He denied hitting Duran. Duran was crying and left, but Hyatt denied following

her into the laundry room, shoving her against the wall and choking her. Hyatt admitted he shook up a

can of beer and sprayed it on her dress, however.

When Duran said she was calling the police, Hyatt left and walked the two blocks to his sister Chanice's

apartment, where he spent the night. About an hour later, Hazard, along with a few other friends, joined

him.

On the following day, April 26, at approximately 10:00 a.m., Hyatt, Hazard, and two other friends, Dwayne

Young and Gerald Greene, got up and went to pick up their friend Greg Thompson, who had been arrested

the prior evening. After picking up Thompson from jail, the group went to the residence of Hyatt's cousin,

Jasmine Hazard, to eat.

Meanwhile, Delgado went to Chanice's apartment and asked to see Hyatt. Delgado seemed agitated and

spoke harshly to Chanice. Chanice told Delgado that Hyatt was not there and asked him to leave, which he

did.

As they pulled up to Jasmine's place, Hyatt got a telephone call from Satis Chisolm,4 who was staying

with Chanice at the time. Chisolm told Hyatt that Delgado had been looking for him at Chanice's

apartment and "he has two--some people with him. I seen [sic] people standing by the stairs." Hyatt turned

to Hazard and said, "I need to go to my sister's house. Can you take me to my sister's house right

now?" Hyatt, Hazard, Young, Greene, and Thompson all drove to Chanice's apartment in Hazard's Ford

Explorer. Hyatt believed that Delgado wanted to fight him because of the argument he had gotten into with

Duran the night before.

As Hazard parked his vehicle, Hyatt saw Delgado standing in the parking lot. Hyatt got out of Hazard's

car and quickly walked toward Delgado. Hyatt was not armed and had no weapons in his possession.

His friends got out of the Explorer and were standing



nearby. Hyatt asked Delgado, "What the fuck you doing at my sister's house? What's up? What you

doing at my--my sister's house?" [Sic.] He thought that his hands were "probably closed into a fist, into a

ball, but they were still down, like, at my side." Delgado said, "I'm here to fight you," and asked if

Hyatt and his friends were going to "jump" him. Hyatt suggested they go to a parking lot next door because

he did not want to fight Delgado outside his sister's house.

Delgado looked around, and asked Hyatt, "Why did

you hit my sister?" When Hyatt denied hitting Duran, Delgado "started getting real, real red. And . . . then

he reached behind him and pulled a knife5 out, was, like, 'This is how I'm--this how we get down.'" [Sic.]

Hyatt backed away and ran around Hazard's vehicle

which was parked nearby. He told Delgado, "Just put the knife down. If--if all you're here to do is fight, we

can fight, but just put that knife down." Delgado did not drop the knife and kept walking toward Hyatt.

Meanwhile, a second Hispanic man, whom Hyatt did not recognize, approached. The man was not armed,

but his fists were clenched. Hyatt asked who he was, but the man just smiled at him "with a mean look on

his face," and kept approaching.

Hyatt then noticed Correa running across the parking lot towards him with a knife. Delgado jumped over the

hood of Hazard's vehicle and began chasing Hyatt, who ran past the second, unarmed man who stepped

aside and let him pass. Delgado and the other two men then chased Hyatt through the carport toward his

friends. Hyatt heard Delgado say, "Grab him. Get him." As Hyatt reached the end of the carport, he saw

Hazard come "the other way kicking, like a ninja kick, a karate kick in the air." Hyatt heard the kick land

"successfully or something," and stopped to look

back. He saw Hazard "coming off the ground," as if he had slipped and was getting up. Delgado, Correa and

the "third friend" were in a circle around Hazard in the carport, but "backing up, looking confused." He saw

Hazard run off towards his car, but he did not see that Hazard was injured.

Hyatt was then joined by Young, who came running

out with a glass bottle. Hyatt tried to take the bottle, so he could use it to defend himself. Delgado, Correa

and the other man started running off, and Young threw the bottle at them. Hyatt said Delgado called

out as they ran out of the parking lot, "I'm going to come back and blast you."

Hyatt learned that Hazard had been stabbed in the

melee. He and his friends started toward the hospital, but saw that Hazard had crashed his car a short

distance away. Hazard was unconscious. The paramedics arrived and pronounced Hazard dead at

the scene.

As Hyatt started to walk back to the apartment complex, he got a call from Duran. He told her, "Your

brother just stabbed my cousin in the neck. So I'm going to kill you." He admitted that he was very angry

at the time, and was speaking in the "heat of the moment." Delgado also called Hyatt and Hyatt said he

"sounded kind of, like, in--like, in shock, like, surprise, like, anxious." Hyatt believed he also threatened

Delgado's life during that conversation. Finally, Robert Rudolph, a friend of Delgado's, called Hyatt. Hyatt

told Rudolph he was going to come over to his house and kill him and his family.

Hyatt was arrested and spoke to police later that

night. Prior to Delgado's trial, he pleaded guilty to making criminal threats to Duran and Rudolph.



Hyatt further admitted having two prior convictions for assault with a deadly weapon other than a firearm

and one conviction for grand theft from a person. One of the assaults was committed in conjunction with

Hazard.

3. Duran's testimony

Duran claimed that Hyatt was angry all night at the party. When they began to argue, Hyatt cornered her,

pushed her against a wall and choked her. Duran was able to push him away, but he followed her into the

laundry room, where he again pushed and choked her. When her cousin, Christina Griffith, came into the

laundry room, Duran was able to get away from Hyatt.6 Hyatt followed her, then pushed her down onto a

couch, and poured beer all over her. After this, she left the apartment and called the police. Duran also

texted Delgado about what Hyatt had done to her, and when she spoke to him later that morning,

Delgado was very upset.7

4. Young's testimony

Young testified that when Hyatt received the call telling him Delgado was looking for him, Hyatt yelled,

"They're at my sister's house. They're at my sister's house. Let's go. Let's go." Along with Hyatt, Hazard

and Greene, Young jumped into Hazard's Explorer to drive to Chanice's apartment. Young said Hyatt was

angry, saying "somebody was over there disrespecting her or her house."

After they arrived, Young went up to the balcony of

Chanice's apartment, overlooking the scene. He saw Hazard running toward his vehicle, bleeding and

holding his neck. Hazard said, "I got hit. I got hit."

Young grabbed an empty vodka bottle and ran downstairs toward Delgado and his compatriots. As

he approached, Young said, "You stabbed Michael in the neck." Delgado said, "Whoa, whoa, whoa . . . .

Relax," before turning to Hyatt and saying "I'm going to come back and blast you." Delgado and the others

turned and ran off. Young threw the vodka bottle at the ground, where it shattered.

Greene said to Hyatt and Young, "Come on. We got

to go. We got to go. Michael just got stabbed." Young, Hyatt, and Greene began running along Parkmoor

Avenue towards a nearby hospital. They then saw Hazard's vehicle, which had crashed in a parking lot.

Hazard was collapsed over the steering wheel, bleeding profusely. When Hyatt tried to open the

driver's side door, fire department personnel stopped him.

5. Thompson's testimony

Thompson testified that when Hyatt received the call

informing him Delgado was looking for him, he appeared a "little upset." Hyatt said he wanted the

others to come along with him "in case something happened." On cross-examination, Thompson said

he, Hyatt and the others jumped out of Hazard's Explorer when they got to Chanice's apartment

complex. Hyatt approached Delgado at a "fast-paced walk." Hazard told Thompson and Greene to stay

back so they did. Young went upstairs towards Chanice's apartment. Thompson saw Hazard go over

towards Hyatt and Delgado. He heard someone "talk about getting jumped," then saw Hyatt running.

During the altercation, Thompson did not see

Delgado stab Hazard. He heard Hazard yell and tell everyone they needed to go because he had been

stabbed in the neck. Thompson ran with him back to



Hazard's Explorer. Hazard began driving toward a nearby hospital, and "went through two red lights"

while Thompson tried to find something to put on Hazard's neck. Hazard had difficulty breathing and

began to lose consciousness. He passed out and the vehicle swerved into a parked car.

6. Autopsy

On April 27, 2009, Dr. Michelle Jorden performed an

autopsy on Hazard's body. Dr. Jorden found a stab wound at the base of Hazard's neck which pierced the

right lung and the superior vena cava, a major vein. The single stab wound caused massive internal

bleeding, resulting in Hazard's death. Dr. Jorden testified that a steak knife8 such as the one described

by Hyatt and other witnesses could have caused Hazard's wound.

7. Investigation and arrest

After speaking to witnesses, police learned that

Delgado and Correa were involved in the stabbing, along with an unidentified third man. On April 27,

police pulled over Ojeda for a traffic violation and ended up searching Ojeda's apartment. The

searching officers saw Delgado and Correa at Ojeda's home, but did not yet know they were wanted for

questioning in connection with the stabbing. When the connection was made, officers went back to Ojeda's

home and arrested Delgado and Correa. When police questioned Ojeda, he admitted he was present during

the stabbing whereupon he was arrested as well.

After all three defendants were taken back to the station, they were placed into a holding cell together

and their audio monitored and recorded. Excerpts of those recordings were played to the jury and

transcripts of those excerpts were admitted into

evidence. On tape, Delgado told Correa and Ojeda that he "can't be telling on you guys" and would say, "I

went there on my own." Ojeda confessed to Delgado that he had already admitted to police that he was

there. Delgado responded, "I can't believe you told them you were there asshole," and Correa said,

"They didn't know you were there fool." Delgado also said to Correa, "I guarantee you won't get more than

five" and advised that he should "just stick to the script that you weren't there." He also claimed that the

"fucking myates are not going to fucking testify and if they do fool you already know it's going to be fucking

mob fool."

B. Defense case

1. Delgado's testimony

Delgado testified he woke up on April 26 and saw he had missed numerous calls and text messages from

his sister, Duran. When he called her, she told him that Hyatt had "choked her, pushed her, poured beer

on her, [and] cussed her out." This made Delgado feel guilty for not going to the party the night before to

protect his sister, and it also made him angry at Hyatt. Delgado told Duran he would talk to Hyatt and tell him

not to bother her anymore. Duran told him to leave it alone and not go, but Delgado decided he would

confront Hyatt anyway.

Delgado asked codefendants Correa and Ojeda to accompany him to Chanice's apartment. When they

arrived, Correa asked Delgado if he wanted him to go to the apartment with him. Delgado replied, "No. It's

cool. I'm just going to talk to him." However, Correa handed Delgado a knife telling him he should take it,

"just in case."



Delgado went to Chanice's apartment, but she told him Hyatt was not there. He overheard Chisolm call

Hyatt and kind of yell that Delgado was there to "talk to" him. Delgado thought it "seemed weird" and

started to leave. He told the women he would come back later. Chanice was being "disrespectful," telling

him to "[g]et the fuck away from my house." He told Correa and Ojeda that Chanice was "tripping," and all

three men started to walk off.

As they were still in the apartment complex's parking lot, however, Chanice came out on the balcony of her

apartment and called out, "[Hyatt]'s here. What's up now, motherfucker?" Delgado saw Hyatt pull up in the

Explorer with several other men. They jumped out of the vehicle and ran towards him. Hyatt angrily said,

"What's up, motherfucker? You want to come to my sister's house and disrespect? I'm a kill you, cuz. I'm

a kill you." [Sic.] Delgado was frightened, backed away from Hyatt and said he just wanted to talk. Hyatt

and the others continued to advance on him, so Delgado pulled out his knife and waved it around to

keep them away. He did not intend to stab anyone with it.

Delgado asked Hyatt why he attacked Duran the night

before. Hyatt responded, "I didn't do shit to that bitch. She's a lying ass ho." [Sic.] Delgado got angry that

Hyatt had called his sister a "bitch" and a "ho," so he "ran at" Hyatt. He was not intending to stab Hyatt, but

the knife was still in his hand as he chased him. Delgado had just caught Hyatt by the shirt when

suddenly someone punched Delgado in the back of the head.

Delgado let go of Hyatt and turned around. He saw an

African-American man, who he did not recognize, holding what appeared to be a small baseball bat.

Someone then kicked Delgado in the left hip and he

reacted by swinging the knife toward the "big blur" that had kicked him. When Delgado looked down, he

saw that Hazard had fallen to the ground, but Hazard quickly jumped up and ran away.

2. Chisolm's testimony

Chisolm testified Hyatt looked angry when he jumped

out of the car to confront Delgado. She heard Delgado ask if Hyatt's friends were going to "jump"

him and looked scared. Hyatt said something to the effect of, "My boys are here too." She saw Delgado

pull out a knife and make jabbing or flinching movements with it towards Hyatt. As Hyatt turned and

ran, Chisolm heard Delgado say, "What's up, fool? Why are you running?"

Chisolm said Hazard "came out of nowhere" and

jumped into the air, performing a flying kick. He was in the air when he got stabbed by Delgado's knife. She

saw Hazard fall to the ground. He got up holding his neck and ran to his car along with Thompson.

3. Rudolph's testimony

Delgado called Rudolph that afternoon and, during

that conversation, Rudolph told him Hazard was dead. Delgado seemed surprised by the news, and

was crying. Based on other sounds he could hear, Rudolph also thought Delgado was vomiting.

4. Correa's testimony

Correa also took the stand on his own behalf. He

testified that he and Ojeda did not go with Delgado to Chanice's apartment, but waited in the car for five or

seven minutes first. He thought to himself that it was a mistake to let Delgado go by himself, so he and

Ojeda \got out and went to find Delgado. Correa saw



him walking down some stairs and Delgado told him Hyatt was not there. Delgado said they should go

because Hyatt's sister was "acting funny." Correa continued walking back to the car, even though

Delgado and Ojeda turned back when they heard a girl yelling. Correa heard someone yell his name, so

he ran back towards the apartments.

Correa saw Delgado had grabbed Hyatt by his collar when someone came at Correa "pretty fast," and he

was hit in the stomach9 and the eye. Someone tried to grab Correa and he pushed that person away.

Correa saw someone else running behind him, and he turned because he thought he was getting

attacked again. Correa also saw a man holding a bottle. Delgado began to back away from Hyatt, and

Correa said they should go. Correa, Delgado and Ojeda ran through the parking lot back to the car.

When they got back in the car, Delgado "sounded

panicked and said, 'I think I stabbed somebody.'" At Ojeda's house later that day, they learned that Hazard

had died. Correa described Delgado as being upset: "[he was] crying, throwing up, [and had] wrapped

himself in a blanket."

5. Mayur Patel's testimony

Patel lived at the apartment complex where the fight occurred. He was coming down from his apartment

on the third floor when he heard a fight. Patel saw two Hispanic men arguing with an African-American male.

10 He saw the African-American man swing at one of the Hispanic men, but the Hispanic man hit the

African-American man in the jaw, knocking him to the ground. At trial, Patel testified the Hispanic man put

the African-American man in a choke hold while he was on the ground, and then the African-American

man got up holding his neck. When interviewed by

police shortly after the incident, however, Patel said that, none of the Hispanic men continued to attack the

African-American man after he was knocked to the ground. Instead, they ran off.

C. Verdict and sentencing

On March 26, 2012, Delgado was acquitted of murder

and attempted murder, but the jury found him guilty of the lesser included offenses of voluntary

manslaughter ( 192, subd. (a), count 1) and assault with a deadly weapon ( 245, count 2), respectively.

11 The jury further found true the allegation that Delgado personally used a deadly weapon in the

commission of count 1. In a bifurcated proceeding, the trial court found true the allegations that Delgado

suffered one prior strike conviction ( 667, subds. (b)-(i), 1170.12), and one prior serious felony

conviction ( 667, subd. (a)).

On November 9, 2012, the trial court sentenced Delgado to prison for a total determinate term of 12

years, consisting of: (1) the mitigated term of three years on count 1, doubled to six years under section

667, subdivision (e); (2) a concurrent mitigated term of two years on count 2, doubled to four years under

section 667, subdivision (e); (3) a consecutive term of one year for the personal use finding; and (4) a

consecutive term of five years for the prior serious conviction finding.

II. Discussion

A. There was no instructional error

1. CALCRIM No. 3471

Delgado contends the trial court incorrectly instructed

the jury on self-defense thus violating his state and



federal constitutional rights to due process and a fair trial. Specifically, he argues the jury was improperly

instructed with CALCRIM No. 3471 to the effect that, if the jury found Hazard suddenly escalated the fight

using deadly force, Delgado could only act in self-defense if he was unable to withdraw from the fight.

Instead, the trial court should have modified the instruction to make clear that Delgado could act in

self-defense only if he could not withdraw in safety from the fray. As discussed below, this contention was

forfeited by Delgado's failure to object to the instruction given or request that it be modified.

Further, even if he could maintain this claim of error, we find it is without merit.

The trial court instructed the jury pursuant to

CALCRIM No. 3471 on an initial aggressor's right to self-defense: "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. 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 nondeadly 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 stop fighting or communicate the desire to stop to the

opponent or give the opponent a chance to stop fighting. [] A fight is mutual when it began or

continued by . . . mutual consent or agreement. That agreement may be expressly stated or implied and

must occur before the claim of self-defense arose."

CALCRIM No. 3471 traces its roots to People v.

Hecker (1895) 109 Cal. 451, which provides that where "one is making a felonious assault upon

another, or has created appearances justifying that other in making a deadly counter attack in self-

defense, the original assailant cannot slay his adversary and avail himself of the plea unless he has

first and in good faith declined further combat, and has fairly notified him that he has abandoned the

contest." (Id. at p. 463.)

Hecker further creates an exception to the foregoing rule. A party who initiated a nonfelonious simple

assault may use deadly force in self-defense if (1) the victim counterattacked using deadly force; (2) the

counterattack was so sudden and perilous that there was no opportunity for the initial aggressor to decline,

or make known his willingness to decline, further fighting; and (3) the initial aggressor could not "retreat

with safety." (People v. Hecker, supra, 109 Cal. at p. 464.)

Delgado seizes on the use of the phrase "retreat with

safety" in Hecker and subsequent cases, such as People v. Gleghorn (1987) 193 Cal.App.3d 196

(Gleghorn), in support of his argument that it is not enough to be able to withdraw from combat, but that a

defendant must be able to withdraw safely. However, these cases, along with others discussing this

concept, use both terms, i.e., "withdraw" and "retreat with safety," interchangeably.

In Hecker, before using the phrase "retreat with

safety," the California Supreme Court stated, as follows: "The defendant was entitled to have the jury

instructed that even if he was in the act of committing a forcible trespass in endeavoring to take the horse, if

his act amounted to no more than a trespass, [victim]



was not justified in trying to kill him, if he did try, in attempting to prevent it. And if, under these

circumstances, [victim] did make the first felonious assault upon defendant, defendant in turn would be

justified in killing [victim] if the circumstances of [victim's] felonious assault were sufficient to excite

defendant's fears as a reasonable man that he was in danger of death or great bodily injury, and he acted

under these fears alone, and had in good faith declined further struggle before firing the fatal shot, or

was put in such sudden jeopardy by the acts of deceased that he could not withdraw, and if it was

thus that [victim] met his death." (People v. Hecker, supra, 109 Cal. at p. 461, italics added.)

In Gleghorn, the court posits the rule as follows:

"[W]hen the victim of simple assault responds in a sudden and deadly counterassault, the original

aggressor need not attempt to withdraw and may use reasonably necessary force in self-

defense." (Gleghorn, supra, 193 Cal.App.3d at p. 201.)

In People v. Sawyer (1967) 256 Cal.App.2d 66, the

Court of Appeal approved the following instruction: "'Where a person seeks or induces a quarrel which

leads to the necessity in his own defense of using force against his adversary, the right to stand his

ground and thus defend himself is not immediately available to him, but, instead he first must decline to

carry on the affray, must honestly endeavor to escape from it, and must fairly and clearly inform his

adversary of his desire for peace and of his abandonment of the contest unless the attack is so

sudden and perilous that he cannot withdraw. Only when he has done so will the law justify him in

thereafter standing his ground and using force upon his antagonist.'" (Id. at p. 75, fn. 2.)

In People v. Quach (2004) 116 Cal.App.4th 294, the court quotes the "retreat with safety" language from

Hecker, then subsequently quotes the "cannot withdraw" language from Sawyer. (Id. at p. 302.)

What these cases illustrate is that the concept of self-

defense at issue here, i.e., the circumstances in which a nonfelonious assailant may defend himself

with deadly force, is adequately conveyed by CALCRIM No. 3471 as given by the trial court. That

instruction accurately reflects the language used not just in Hecker, but in every subsequent case

addressing that defense.

2. Delgado failed to object and has forfeited the argument

Because Delgado did not object to this instruction at

trial, or request that it be modified in any way, he has forfeited the argument. As discussed above,

CALCRIM No. 3471 is a correct statement of the law. "To the extent the instruction was incomplete,

defendant may not be now heard to complain because he did not request clarifying language. '[A]

party 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. Jones (2013) 57 Cal.4th 899, 969.) "The trial court cannot reasonably be expected

to attempt to revise or improve accepted and correct jury instructions absent some request from

counsel." (People v. Wolcott (1983) 34 Cal.3d 92, 108-109.)

3. No reasonable likelihood the instruction was misapplied



Even assuming Delgado did not forfeit this argument, we reject it on the merits as well. There is no

reasonable likelihood a jury would apply the instruction in the way Delgado contends.

"When we review challenges to a jury instruction as

being incorrect or incomplete, we evaluate the instructions given as a whole, not in isolation.

[Citation.] 'For ambiguous instructions, the test is whether there is a reasonable likelihood that the jury

misunderstood and misapplied the instruction.'" (People v. Rundle (2008) 43 Cal.4th 76,

149, disapproved of on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

The concept of withdrawing from a fight in the face of

a sudden, deadly counterattack necessarily implies that the one seeking to withdraw be able to do so

without harm. There is no reasonable likelihood that jurors would construe the instruction to deny the right

to self-defense to a nonfelonious initial aggressor so long as he had the option of running away, even if his

retreat left him vulnerable to a deadly counterattack.

[ ]

III. Disposition

The judgment is affirmed.

__________________________________________________________________________________________



MINNESOTA

State v. Welle, 2015 Minn. LEXIS 368 (MN Supreme Court 2015)

Key issues:

Innocence, first aggressor; relevance of history of claiming self-defense

Date: June 24, 2015

Decision:

Following a jury trial in St. Louis County District Court, respondent Paul Joseph Welle was found guilty of: (1)

unintentional second-degree murder, in violation of Minn. Stat. 609.19, subd. 2(1) (2014); and (2) first-

degree manslaughter, in violation of Minn. Stat. 609.20(2) (2014), in connection with the death of 60-

year-old Dale Anderson. The trial court convicted Welle of unintentional second-degree felony murder

and sentenced him to an executed term of 18 years in prison. On appeal, the court of appeals concluded

that the trial court committed reversible error by improperly admitting evidence of other crimes. We

reverse the court of appeals.

Evidence at trial established the following facts. On November 6, 2011, around 12:30 a.m., Dale

Anderson and his brother went to the Powerhouse Bar in Proctor. While there, Anderson and his brother

met and socialized with three women in their early 20s: L.B., E.H., and K.H. Later that night, 32-year-old

Welle and his friend M.W. arrived at the Powerhouse Bar. Welle and M.W. also socialized with L.B., E.H.,

and K.H. At some point, Welle danced with K.H., who was intoxicated. After K.H. returned from the dance

floor, Anderson asked E.H. if Welle was bothering them. E.H. responded: "He's not bothering me. He

might be bothering her," referring to K.H. Anderson

replied: "You tell him I'm your father, and I'll take care of it." A short time later, Anderson and Welle

exchanged words and a witness overheard Welle say: "You don't threaten me. Nobody threatens me.

Outside now." Anderson left the bar and Welle followed. About 20 seconds after Anderson and Welle

walked out of the bar, one of the bar's patrons went outside and saw Anderson lying on the ground

bleeding from the head. Welle fled from the scene. Anderson was transported to a hospital where he

later died from a skull fracture.

After fleeing the scene, Welle called his wife, G.W., and asked her to pick him up, which she did. At some

point, Welle told G.W. about the incident with Anderson, explaining that Anderson hit him first and

that he punched Anderson in self-defense. G.W. told Welle to call the police and explain that he was

defending himself when he hit Anderson. Welle eventually called 911 and indicated that he had been

involved in an altercation outside the Powerhouse Bar in which he hit a man in self-defense. Later that night,

the police met with Welle and G.W. to discuss the incident. During this meeting, Welle told the police

that he and M.W. were talking to L.B., E.H., and K.H. when Anderson told him: "You better stop it right now

or I'm going to take you outside and destroy you."



Welle further claimed that he responded by saying: "Show me the way." Welle told the police that, once

outside, Anderson hit him once in the face and that he hit Anderson back in self-defense, which caused

Anderson to fall backwards. G.W. corroborated Welle's story. G.W. told the police that, as she was

pulling up to the bar to pick up Welle, she saw Anderson hit him, and that Welle hit him back. Welle,

who did not have any noticeable injuries, received a ticket for misdemeanor assault and was informed that

the charges could be upgraded depending on Anderson's medical condition. The next day, G.W.

called the police and told them that she had lied about what she had seen the night before. G.W. explained

that she was not present when the altercation took place between Anderson and Welle, and that Welle

had told her to lie for him.

Welle was interviewed on November 8, 2011, by agents from the Bureau of Criminal Apprehension

(BCA). During this interview, Welle added new details about what had occurred leading up to the altercation

with Anderson. According to Welle, before they went outside, Anderson told him that Anderson was "a

Vietnam Vet" who had killed people. Welle then explained that when they went outside, Anderson

stepped on his foot and hit him once in the left shoulder and once in the ribs. Welle responded,

hitting Anderson once, which caused Anderson to fall to the ground. Welle claimed that his wife was there at

the time and that he left with her after the fight because he was drunk and wanted to leave. He also

indicated that his foot had been injured during the altercation and claimed that he had seen a doctor for

the injury. The agents spoke with Welle's wife, who again indicated that she was not present when the

fight occurred.

Anderson died from his injuries on November 9, 2011. The State subsequently charged Welle with

unintentional second-degree felony murder, with the predicate felony being first-degree assault, and first-

degree manslaughter, causing death while committing fifth-degree assault. Before Welle's trial, the State

notified the defense of its intent to offer evidence of three previous assaults and two incidents of domestic

assault committed by Welle. The defense opposed the State's notice, and provided notice of its intent to

raise a self-defense claim. After a hearing on the motion, the trial court granted the State's motion as to

the three assaults, but denied the motion as to the two domestic assaults. The court explained that

evidence of the three assaults was admissible to "determin[e] [Welle's] intent" and to respond to

Welle's self-defense claim by showing "a modus operandi from prior behavior."

At trial, Welle testified in his own defense. He claimed

that, while at the Powerhouse Bar, he danced with one of the three young women whom he had met

earlier at the bar. Afterward, Anderson approached him and told him to "leave them girls alone. I'm their

father" and "I'm a Vietnam Vet. I kill people." According to Welle, Anderson then grabbed his arm

and said he would "destroy" him. Welle testified that he then followed Anderson outside to "make peace."

Once outside, Anderson stepped on Welle's right foot and hit him twice, once in the shoulder and once in

the rib. Welle threw one punch and knocked Anderson down. Welle also testified that his wife was

not present during the altercation, explaining: "I told her to basically lie for me."

As noted, the court allowed the State to admit

evidence of three previous assaults that involved Welle. The first incident occurred in 2001 and

involved Welle and M.H., a coworker at a restaurant



where Welle worked. One night, Welle called M.H. at work and commented that M.H.'s girlfriend was flirting

with another individual. In response, M.H. hung up the phone. Welle called back, the two exchanged words,

and Welle said that he would be waiting when M.H. got off work. Welle met M.H. outside the restaurant

and punched him, causing M.H.'s tooth to go through M.H.'s lip. During the police investigation of this

incident, Welle, who had no visible signs of injury, claimed that M.H. pushed him first and that he hit

M.H. in self-defense. Welle was criminally charged and ultimately pled guilty to disorderly conduct.

The second incident occurred in 2003 and involved

A.R., Welle's neighbor. As A.R. and Welle were in the living room at Welle's residence, an argument

ensued, and Welle shoved A.R. against the couch. A.R. grabbed an empty beer bottle and Welle

grabbed a kitchen knife. After a tussle in the living room, Welle punched A.R. in the face. Following the

altercation, Welle claimed that he had acted in self-defense because A.R. had threatened to kill Welle's

family and hit him with the beer bottle. According to the detective assigned to the case, Welle showed no

visible signs of injury. Welle eventually pled guilty to gross misdemeanor assault.

The third incident took place in 2002 and involved

D.L., a mechanic who was living in Welle's mother's home. One evening, Welle asked D.L. to change the

oil in his car. After D.L. refused, Welle punched him, breaking D.L.'s eye-socket. Welle initially denied

assaulting D.L., but later admitted that he punched D.L. because D.L. had made a disparaging remark.

Welle did not claim self-defense in this instance and pled guilty to third-degree assault.

In admitting evidence of the three assaults, the trial

court explained that there were "indisputable"

similarities between the three incidents and the charged offense. The jury subsequently found Welle

guilty of both unintentional second-degree felony murder and first-degree manslaughter. In his appeal

to the court of appeals, Welle claimed, among other things, that the admission of evidence relating to the

three previous assaults constituted impermissible character evidence. In a published decision, the court

of appeals reversed and remanded for a new trial. See State v. Welle, 847 N.W.2d 52 (Minn. App. 2014).

The court of appeals concluded that the [district court abused its discretion because "that evidence did not

tend to disprove the elements of self-defense and it unfairly prejudiced the defense." Id. at 55.

I.

The issue before us is whether Welle's pattern of

asserting self-defense after being the aggressor in an altercation is relevant for purposes of disproving the

elements of self-defense. The State sought to introduce evidence, through the admission of

evidence of Welle's prior bad acts, that Welle has a pattern of shifting blame and falsely asserting self-

defense after being the aggressor in an altercation. We have referred to this type of evidence as Spreigl

evidence,1 which is inadmissible to prove a defendant's bad character, but may be admitted for

other purposes, such as to show motive, intent, absence of mistake, identity, or a common scheme or

plan. Minn. R. Evid. 404(b). Such evidence cannot be admitted unless:

(1) the prosecutor gives notice of its intent to

admit the evidence consistent with the rules of criminal procedure; (2) the prosecutor clearly

indicates what the evidence will be offered to prove; (3) the other crime, wrong, or act and the

participation in it by a relevant person are



proven by clear and convincing evidence; (4) the evidence is relevant to the prosecutor's case;

and (5) the probative value of the evidence is not outweighed by its potential for unfair

prejudice to the defendant.

Id.

We first address the issue of whether the evidence of other crimes, wrongs, or acts introduced by the State

was relevant. As the court of appeals noted, the State offered the evidence of other crimes, wrongs, or acts

not to establish that Welle struck Anderson, but to establish a modus operandi and to counter Welle's

self-defense claim. The court of appeals then emphasized that after the defense had met its initial

burden of producing evidence to support Welle's self-defense claim, the burden shifted to the State to

disprove the elements of self-defense beyond a reasonable doubt. After listing the elements of self-

defense--(1) the absence of aggression or provocation on the part of the defendant; (2) the

defendant's actual and honest belief of danger of death or great bodily harm; (3) reasonable grounds

for that belief; and (4) the absence of a reasonable possibility of retreat--the court of appeals summarily

concluded that the "proffered Spreigl evidence was not relevant to the issue of self-defense." Welle, 847

N.W.2d at 59. We disagree.

In State v. Robinson, we concluded that evidence of other crimes,

2015 #27 self defense weekly law report

Documents

law of selfdefense

issues of selfdefense

legalese of selfdefense

weekly law report

law report weekly

law of self defense

weeks law of self defense

key selfdefense law