Opinion
D069114
03-08-2017
THE PEOPLE, Plaintiff and Respondent, v. JESUS CESENA, Defendant and Appellant.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JCF29420) APPEAL from a judgment of the Superior Court of Imperial County, William D. Lehman, Judge. Affirmed and remanded with directions. Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry J. Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury found Jesus Cesena guilty of second degree murder (Pen. Code, § 187) (count 1) and assault with a deadly weapon (§ 245, subd. (a)(1)) (count 2). The jury also found that Cesena personally used a knife during the commission of the murder (§ 12022, subd. (b)(1) ). The trial court sentenced Cesena to an aggregate term of 16 years to life in prison on count 1, consisting of 15 years to life for the murder, and one year for the knife enhancement. The court stayed execution of the sentence on count 2 pursuant to section 654.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
Although the information referred to section 12022, subdivision (b)(2), it is clear from the record that the intended statutory reference is to section 12022, subdivision (b)(1).
On appeal, Cesena claims that the trial court erred in instructing the jury pursuant to CALCRIM No. 3472 that "[a] person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force." Cesena claims that there is no substantial evidence in the record that supported giving this instruction. We reject this claim and conclude that there is substantial evidence that Cesena provoked a fight with the intent to create an excuse to use force.
In the alternative, Cesena claims that the instruction did not correctly state the law in light of the facts of this case because he "retained the right to defend himself even if he did initiate the confrontation." In support of this claim, Cesena relies on the Court of Appeal's statement in People v. Ramirez (2015) 233 Cal.App.4th 940 (Ramirez), that CALCRIM No. 3472 "misstates the law" (Ramirez, supra, at p. 950) in cases in which there is substantial evidence that the defendant provoked a fight with the intention of using nondeadly force and the victim unreasonably responded with deadly force. (Ibid.) According to the Ramirez court, under these circumstances, CALCRIM No. 3472 does not properly state the law because "[a] person who contrives to start a fistfight or provoke a nondeadly quarrel does not thereby 'forfeit[ ] . . . his right to live.' " (Ramirez, at p. 943.)
We assume, strictly for purposes of this opinion, that Ramirez was correctly decided. (But see Ramirez, 233 Cal.App.4th at p. 957 (dis. opn. of Fybel, J.) [defendant does not lawfully act in self-defense where defendant provokes a fight "for the purpose of contriving the opportunity to engage in further violence in response to their adversary's reaction" irrespective of whether the adversary's reaction escalated the violence]; see also People v. Enraca (2012) 53 Cal.4th 735, 761 [trial court properly instructed the jury that " '[t]he right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense' "].) However, we conclude that, even assuming that the trial court erred in failing to modify CALCRIM No. 3472 in light of the principles elucidated in Ramirez, any such error was harmless. (See People v. Eulian (2016) 247 Cal.App.4th 1324, 1335 (Eulian) [rejecting claim that trial court committed reversible error in failing to modify CALCRIM No. 3472 pursuant to Ramirez because "during argument to the jury the prosecutor never even mentioned CALCRIM No. 3472, or the principle explained in the instruction"].)
Finally, Cesena claims that the trial court should be directed to prepare an amended abstract of judgment to reflect the proper number of custody credits that the court awarded at sentencing. The People acknowledge the error in the abstract of judgment and agree that the trial court should be directed to prepare an amended abstract of judgment.
Accordingly, we affirm the judgment and remand the matter to the trial court with directions to prepare an amended abstract of judgment to reflect the proper number of custody credits.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People's evidence
Cesena and Melissa Rosas lived together from approximately 2000 until 2010 and had three children. After their relationship ended, Rosas began dating the victim, Rey Montano. Cesena and Montano did not like each other. Rosas explained that it seemed to irritate Montano that Cesena would come by her residence at "weird hours," such as in the early morning hours and late at night.
One morning in August 2012, at around 7:00, Cesena arrived at Rosas's residence and began "banging" on her bedroom window, where Rosas and Montano were sleeping. Cesena said that he wanted to speak with his children. Rosas summoned the children, and Cesena took them for a bicycle ride. Later that morning, after Cesena returned the children to Rosas's residence, Rosas sent the children down the street to play at a neighbor's house.
At around 11:00 that morning, while Rosas and Montano were sitting outside her residence, Cesena returned, accompanied by a woman named Mona. Cesena asked Rosas to take care of his bicycle. Montano and Cesena got into an argument. According to Rosas, Montano was upset that Cesena came over to ask Rosas to watch his bicycle. Montano appeared to be angry and upset. During the confrontation between the two men, Mona tried to hit Rosas with a skateboard. While the argument was occurring, an earthquake struck the area. Rosas did not want the two men to fight, and said to Montano, "Let's go."
The record does not disclose Mona's motive for the assault, other than that she accompanied Cesena to Rosas's house and was present during the confrontation between Cesena and Montano.
After the earthquake, Rosas and Montano left Mona and Cesena and walked down the street to check on Rosas and Cesena's children. Approximately five to ten minutes later, Rosas and Montano began to walk back toward her residence. Cesena approached Montano and Rosas. As soon as Cesena reached Montano, Cesena forcefully stabbed Montano in the chest.
Rosas saw a knife fall to the ground in front of the group. She picked up the knife and threw it over a fence to prevent either Cesena or Montano from picking it up. Cesena walked away. Montano said, "Let's go," took a few steps, and fell to the ground. Rosas ran to her house to retrieve her car in order to drive Montano to the hospital. Mona was inside her house. Rosas told Mona to leave, and she did. At some point after the stabbing, Mona attempted to hit Rosas with the handlebar from a bicycle.
Rosas explained that no one was able to call an ambulance because a series of earthquakes had impacted telephone service in the area.
It is unclear from the record when exactly Mona attempted to hit Rosas with the bicycle handlebar.
Rosas told a police officer who responded to the scene that she had thrown the knife that was used in the stabbing over a fence. Video taken from the camera of a responding police officer's patrol car showed a female putting something in a trash can located just a few feet away from Montano's body. Police recovered a knife from inside the trash can. The knife, which was made by Master Chef, had a blade that was approximately eight inches long. Rosas had a set of Master Chef knives at her residence. Rosas told a police officer who interviewed her on the day of the incident that Montano had been unarmed. Montano died at the hospital shortly after the stabbing.
Cesena remained at large for more than a month. After an extensive search, police obtained information that Cesena might be at an apartment on Commercial Avenue. During a search of the apartment, police found Cesena hiding in a closet and arrested him. B. The defense
The defense presented evidence that Montano was prone to violence.
Raul Zamora, the neighbor at whose residence Rosas and Cesena's children were playing on the morning of the stabbing, testified that he had known both Cesena and Montano for many years. According to Zamora, just before the stabbing, Montano told him that he was angry that Cesena had been at Rosas's house. Zamora stated that, just before the stabbing, Cesena walked toward Montano, the two men exchanged words, and Montano appeared "pissed off." Montano reached for something in his pocket. Immediately thereafter, Cesena threw a punch at Montano. After the punch, Cesena walked away. Zamora did not see either man with a knife.
Cesena testified that he asked Rosas whether he could leave his bicycle at her house on the morning of the incident. After Rosas agreed, Montano angrily accused Cesena of "talking shit about [Montano]," challenged Cesena to a fight, and pushed Cesena, causing him to fall over. An earthquake stopped the confrontation. After the earthquake was over, Rosas and Montano went to the neighbor's house to check on the children. Cesena walked up the street and encountered Montano and Rosas. According to Cesena, Montano approached Cesena, pulled out a knife, and moved toward Cesena as if he were about to lunge at him. Fearing that Montano was about to stab him, Cesena grabbed a pocketknife that was holstered to his pants pocket and stabbed Montano. Immediately after the stabbing, Cesena walked away. While walking away from the scene, Cesena threw his knife into a trash can.
III.
DISCUSSION
A. There is substantial evidence in the record to support the trial court's instructing the jury pursuant to CALCRIM No. 3472
Cesena contends that the trial court erred in instructing the jury pursuant to CALCRIM No. 3472 because there was not substantial evidence introduced at trial to support giving this instruction. We apply the de novo standard of review to Cesena's claim. (See People v. Quiroz (2013) 215 Cal.App.4th 65, 76 [stating appellate court reviews de novo trial court's assessment of whether there is substantial evidence warranting the giving of a jury instruction].)
1. A trial court's instructional duties
"[I]nstructions not supported by substantial evidence should not be given." (People v. Ross (2007) 155 Cal.App.4th 1033, 1050.) " ' "Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." ' " (People v. Cole (2004) 33 Cal.4th 1158, 1215 (Cole).) "It 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.)
2. The challenged instruction
The trial court instructed the jury pursuant to CALCRIM No. 3472 concerning the law of "contrived" self-defense as follows:
CALCRIM No. 3472 is entitled: "Right to Self-Defense: May Not Be Contrived." The record reflects that the trial court provided the jury with a printed copy of the instructions, including the title of the instruction.
"A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force."
3. Relevant evidence
There is evidence in the record from which a reasonable jury could find the following. Cesena and Montano "didn't like each other" and this dislike stemmed from the fact that Montano was dating Cesena's ex-girlfriend, Rosas. On the day of the killing, Cesena and Montano engaged in a heated confrontation at Rosas's residence. During the confrontation, Cesena told Montano to "man up." Montano pushed Cesena during the altercation. Cesena was upset and embarrassed by Montano's actions.
El Centro Police Officer Michael Boston responded to the scene of the stabbing and interviewed Rosas. Rosas told Officer Boston that an "argument had broken out at her residence," between Cesena and Montano. Rosas told Officer Boston that during the "initial contact at the residence . . . Cesena . . . told Mr. Montano just to man up."
Rosas and Montano left her residence after this initial confrontation and went to a neighbor's house down the street. Approximately five to ten minutes later, Cesena walked up the street from Rosas's residence toward Montano and Rosas. Fearing a confrontation between the two men, Rosas said, "Not right now. What are you doing?" When asked whether she made that statement because she "thought that Mr. Cesena was coming up to fight with Mr. Montano," Rosas replied in the affirmative. According to Cesena, Montano pulled out a knife and came toward him in an aggressive manner. Immediately thereafter, Cesena stabbed Montano, once in the heart, killing him.
Rosas told police at the scene that Montano was not armed.
4. Application
From the evidence discussed above, a jury could reasonably have found that Cesena challenged Montano to a fight at Rosas's residence and that a verbal and physical altercation ensued. The jury could further reasonably find that shortly after this initial confrontation, Cesena, armed with a knife, angrily approached Montano. The two men exchanged words and Montano appeared to be "pissed off." To the extent the jury believed Cesena's testimony, the jury could also have reasonably found that Montano pulled out a knife and approached Cesena in an aggressive manner, and that Cesena then stabbed Montano. Based on this evidence, a reasonable jury could have found that Cesena "provoke[d] a fight or quarrel with the intent to create an excuse to use force." (CALCRIM No. 3472.)
As discussed in part III.B, ante, Cesena testified that Montano brandished a knife just before the stabbing. However, no other eyewitness testified that Montano was armed.
We are not persuaded by Cesena's contention that the "instruction was clearly inapplicable," because both Rosas and Zamora "testified Montano was angry and the aggressor and [Cesena] was calm and was not the aggressor." While Cesena is correct that the jury could have reasonably found that Montano was the aggressor, there also was evidence, recounted above, from which the jury could have reasonably found that Cesena was the aggressor and that Cesena contrived the need to stab Montano. In light of the fact that there is " ' "evidence that a reasonable jury could find persuasive" ' " (Cole, supra, 33 Cal.4th at p. 1215, italics added) warranting a jury finding supporting the instruction, the fact that the record contains evidence supporting a contrary finding, does not demonstrate error.
Accordingly, we conclude that there is substantial evidence in the record to support the trial court's instructing the jury pursuant to CALCRIM No. 3472. B. Any error that the trial court committed in failing to modify CALCRIM No. 3472 in light of the principles elucidated in Ramirez was harmless
Cesena contends, in the alternative, that CALCRIM No. 3472 "did not correctly state the law when applied to his case." We assume, strictly for purposes of this opinion, that Cesena is correct, but conclude that any such error was harmless under any standard of prejudice.
We assume that Cesena may raise this contention on appeal notwithstanding that he neither objected to the giving of the instruction nor requested a modification of the instruction in the trial court.
In Ramirez, the court, without discussion, appeared to apply the Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) standard of prejudice, which applies to errors of federal constitutional magnitude. (See Ramirez, supra, 233 Cal.App.4th at p. 953.) Under Chapman, reversal of the judgment is required unless the error is harmless beyond a reasonable doubt. (Chapman, supra, at p. 24.) We need not decide the appropriate standard of prejudice applicable to claims of this sort because we conclude that any error in instructing the jury pursuant to CALCRIM No. 3472 was harmless under any standard of prejudice. (See Eulian, supra, 247 Cal.App.4th at p. 1335 [concluding that any error in instructing the jury pursuant to CALCRIM No. 3472 was harmless under both Chapman and the law governing errors of state law, People v. Watson (1956) 46 Cal.2d 818].)
1. Applicable law
In Ramirez, the court concluded that "the trial court's instructions prevented the jury from considering [the defendants'] self-defense claim, an error the prosecutor compounded by repeated misstatement of the law reflected in those instructions." (Ramirez, supra, 233 Cal.App.4th at p. 945.) The record in Ramirez contained evidence from which the jury could have found that the defendants intended to provoke a fistfight with a rival gang, and that when a member of the rival gang (Rivera) brandished a gun during the fight, one of the defendants (Armando) fatally shot Rivera in order to defend his companions. (Id. at p. 944-945.)
The trial court in Ramirez instructed the jury pursuant to CALCRIM No. 3472 on the law of contrived self-defense. (Ramirez, supra, 233 Cal.App.4th at p. 945.) During closing arguments, the prosecutor repeatedly emphasized that, because the defendants had provoked the initial confrontation, the defendants were entirely precluded from relying on a defense of self-defense or imperfect self-defense in light of CALCRIM No. 3472, even if the defendants intended to provoke only a fistfight. (See Ramirez, at pp. 946-947, 948-949 [quoting closing arguments].) For example, the Ramirez court stated:
"The prosecutor highlighted the instruction [CALCRIM No. 3472] in closing argument. The prosecutor argued it precluded any claim of self-defense even if defendants only instigated a fistfight. Indeed, the prosecutor acknowledged the evidence reflected a fistfight as defendants' likely intent: 'Nothing about the way that they approached, what they said, what they did, indicated anything but expecting and wanting a fight with the [opposing gang]. [¶] I am not saying expecting and wanting murder. I am saying expect[ing] and wanting a fight.' Invoking the contrived self-defense instruction, however, the prosecutor continued: 'But remember, we are talking about are they entitled to self-defense if they went there intending to provoke a fight and use force? And if you find that they did, they are not entitled to that protection.' " (Id., at p. 946, italics added in Ramirez.)
The Ramirez court emphasized that the prosecutor argued that a proper application of CALCRIM No. 3472 completely foreclosed the defendants from prevailing on their claim of self-defense, under any view of the evidence. The Ramirez court stated:
"The prosecutor argued the instruction precluded a claim of self-defense in all possible circumstances under the evidence, i.e., whether 'one, . . . Ruben Rivera actually had a gun; two, Armando thought Ruben had a gun; or three, the whole Ruben-had-a-gun
theory is made up . . . .' The prosecutor acknowledged frankly that Rivera may have had a gun: '[T]o be quite honest, ladies and gentlemen, they [the opposing gang] are gangsters. Can we really believe none of them had a gun?' Nevertheless, the prosecutor insisted under CALCRIM No. 3472 that it did not matter. 'Was there a gun in Ruben's hands? I am going to quickly go over the reasons for yes. I am going to quickly go over the reasons for no. But I want to stress, either way, it doesn't matter. Because [CALCRIM No.] 3472 says a person does not have the right to self-defense if he provokes a fight or a quarrel with the intent to create an excuse to use force.' " (Ramirez, supra, 233 Cal.App.4th at p. 946.)
The Ramirez court also noted:
"Relying on CALCRIM No. 3471,[] defense counsel argued in closing argument that the lesser charge of manslaughter might apply, but insisted Armando regained a right to defend himself against murder charges if he truly believed Rivera suddenly escalated the fistfight to a gunfight. [Footnote omitted.] The prosecutor, however, invoked CALCRIM No. 3472, arguing, '[Y]ou cannot have the princip[le] to mitigate from murder to voluntary manslaughter . . . when you are the one who created the circumstances to begin with. It makes sense. It's fair. It's just. More importantly, it's the law.' " (Ramirez, supra, 233 Cal.App.4th at pp. 946-947.)
In the omitted footnote, the Ramirez court stated:
"CALCRIM No. 3471 provides that a person who 'engages in mutual combat' or 'starts a fight' ordinarily has 'a right to self-defense' only if three criteria are met: he actually and in good faith tried to stop fighting; communicated to his opponent 'by word or by conduct' this intent to cease fighting; and gave the opponent a chance to stop fighting. As defense counsel explained, these criteria need not be met where the opponent suddenly resorts to deadly force in response to a defendant's nondeadly attack." (Ramirez, supra, 233 Cal.App.4th at p. 947.)
The Ramirez court also stated that the "jury's copy of the jury instructions reflects that in reaching its verdict, the jury circled CALCRIM No. 3472." (Ramirez, supra, 233 Cal.App.4th at p. 947.)
Under these circumstances, the Ramirez court concluded that the trial court's instructions and the prosecutor's argument constituted reversible error. (Ramirez, supra, 233 Cal.App.4th at p. 953.) In reaching this conclusion, the Ramirez court reasoned:
"In essence, the instructions and the prosecutor's argument erroneously required the jury to conclude that in contriving to use force, even to provoke only a fistfight, defendants entirely forfeited any right to self-defense. The instructions and the prosecutor's argument established as a matter of law that defendants were not entitled to imperfect self-defense if they contrived to use any force, even nondeadly force, but that was a question for the jury to decide on its own evaluation of the facts." (Ibid.)
In Eulian, the court concluded that any error that the trial court may have committed under Ramirez in instructing the jury pursuant to CALCRIM No. 3472 was harmless under both Chapman and Watson. (Eulian, supra, 247 Cal.App.4th at p. 1335.) The Eulian court reasoned:
"Defendant recognizes that during argument to the jury the prosecutor never even mentioned CALCRIM No. 3472, or the principle explained in the instruction. Instead, the prosecutor directed the jury to the ultimate issue on self-defense in this case by arguing it 'all really boils down to this one word here, reasonable.' The prosecutor explained over the course of five pages in the reporter's transcript why defendant's conduct was unreasonable, including that defendant 'went to overkill, an overwhelming amount of violence in response to what he's testified to.' We conclude both that the instruction did not improperly affect the verdict, nor is it reasonably probable defendant would have obtained a more favorable result had CALCRIM No. 3472 not been given. (Chapman[, supra, 386 U.S. at p. 24]; [Watson, supra, 46 Cal.2d at p. 836].)" (Ibid.)
2. Application
Unlike in Ramirez, at no time in either his initial or rebuttal closing arguments did the prosecutor suggest that Cesena had forfeited any possible right to claim self-defense because Cesena had provoked a nondeadly confrontation with the intent to create an excuse to use force. Further, unlike in Ramirez, at no time did the prosecutor suggest that because Cesena had provoked the initial confrontation, he was entirely precluded from relying on self-defense, even if he had intended to provoke only a fistfight.
On the contrary, the prosecutor argued that Cesena was not entitled to prevail on his claim of self-defense because the elements of self-defense were not present (i.e., an actual and reasonable belief in imminent danger, a belief that deadly force was necessary to defend against the danger, and the use of no more force than necessary to defend against the danger). The jury would have had no occasion to consider these elements if the jury were to apply the contrived self-defense principle contained in CALCRIM No. 3472. For example, with respect to whether Cesena actually and reasonably believed in the need to act in self-defense, the prosecutor argued that Rosas and Zamora both testified that they did not see Montano with a knife. With respect to whether Cesena believed that deadly force was necessary, the prosecutor suggested that, even assuming that Montano had a knife, Cesena had not acted in self-defense because Cesena had not attempted to defuse the confrontation or flee before stabbing Montano. The prosecutor also argued that it would be unreasonable to find that Cesena had acted in self-defense given that, according to his own testimony, after he stabbed Montano, he fled, threw away the knife that he had used, and hid from the police. Perhaps most important, as in Eulian, the prosecutor in this case never mentioned CALCRIM No. 3472, or the principle explained in the instruction during either his initial or rebuttal closing arguments. (See Eulian, supra, 247 Cal.App.4th at p. 1335.)
The trial court instructed the jury pursuant to a modified version of CALCRIM No. 505 concerning the self-defense as follows:
"The defendant is not guilty of murder, manslaughter, or assault with a deadly weapon if he was justified in killing or assaulting someone in self-defense.
"The defendant acted in lawful self-defense if, number one, the defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury; number two, the defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; and number three, 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 death or great bodily injury to himself. Defendant's belief must have been reasonable, and he must have acted only 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 what's reasonable, the killing or assault was not justified.
"When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known 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.
"If you find that Rey Montano, Junior threatened or harmed the defendant or others in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable.
"If you find that the defendant knew that Rey Montano, Junior, had threatened or harmed others in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable. Someone who has been threatened or harmed by a person in the past is justified in acting more quickly, or taking greater self-defense measures against that person.
"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 . . . . [¶] . . . [¶] or great bodily injury has passed. This is so even if safety could have been achieved by retreating.
" 'Great bodily injury' means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
"The People have the burden of proving beyond a reasonable doubt that the killing or assault was not justified. If the People have not met this burden, you must find the defendant not guilty of murder, manslaughter or assault with a deadly weapon."
The prosecutor also argued that the defense's contention that Cesena believed Montano was violent and unpredictable was unlikely to be true, stating, "If [Cesena] really believed that [Montano] was so violent and so unpredictable, then why is he letting [Montano] hang around with his children?" --------
Further, unlike in Ramirez, defense counsel did not argue that even if Cesena had been the initial aggressor, Cesena had regained the right to use force when Montano suddenly escalated the fight. Rather, the defense in this case was that Montano was a violent and dangerous person who had been the aggressor, both during the initial confrontation and throughout the fatal encounter.
In his brief on appeal, Cesena does not identify any part of the record that suggests prejudice stemming from any assumed error that the trial court committed by failing to modify CALCRIM No. 3472 to state that a defendant who contrives the need to use nondeadly force may regain the right to act in self-defense if the victim unreasonably responds to the defendant's actions with deadly force. Instead, Cesena argues that the error was prejudicial because this was a "close case," citing the length of the jury's deliberations, the jury's request for a read back of Rosas's testimony, and the fact that the jury found Cesena not guilty of first degree murder. However, even assuming that the case was close, in light of the facts of this case and the manner by which the case was presented to the jury, as discussed above, it is clear beyond a reasonable doubt that Cesena would not have obtained a more favorable result absent the error.
Accordingly, we conclude that any error that the trial court may have committed in failing to modify CALCRIM No. 3472 in light of the principles elucidated in Ramirez was harmless. C. Custody credits
Cesena claims that, at sentencing, the trial court awarded 996 days of actual custody credit, but that the abstract of judgment erroneously states that he has 987 days of actual custody credit. The People concede that the abstract of judgment should be amended to correct the error. We agree that the abstract of judgment must be corrected. We direct the trial court on remand to prepare an amended abstract of judgment reflecting 996 days of actual custody credit as stated by the trial court at sentencing.
IV.
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court with directions to prepare an amended abstract of judgment as outlined in part III.C, ante, and to forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
AARON, J. WE CONCUR: HUFFMAN, Acting P. J. HALLER, J.
In this case, the jury was not instructed pursuant to CALCRIM No. 3471. Cesena does not raise any claim pursuant to CALCRIM No. 3471 in his brief on appeal.