Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07NF3358, Gary S. Paer, Judge.
Randi Covin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala Harris Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
Defendant Ceasar William Galvez challenges his second-degree murder conviction for stabbing the victim 13 times during a fistfight. He contends the court wrongly instructed the jury on the right of the initial aggressor in mutual combat to act in self-defense. He claims insufficient evidence showed he did not act in self-defense. And he asserts insufficient evidence supported a criminal street gang sentence enhancement.
We affirm. The court correctly instructed the jury the initial aggressor in mutual combat must stop fighting before acting in self-defense, unless the counterattack is so “sudden and deadly” it prevents withdrawal. Substantial evidence showed defendant did not stab the victim in self-defense. And substantial evidence showed defendant acted with a gang member to promote the gang’s criminal activity.
FACTS
Defendant was an “O.G.” (“original gangster”) or veteran of the Fullerton Tokers Town criminal street gang, though he distanced himself from the gang in recent years. On the night of September 15, 2007, defendant and his wife went to pick up some friends from a birthday party in Fullerton. A fight broke out at the party. People started fighting on top of defendant’s car, denting it.
Twenty-year-old Jeffrey James Cordero (James, or the victim) and his brother Michael were involved in the fight. Michael was an active, “youngster” Fullerton Tokers Town gang member; James associated with the gang. People at the party asked James and Michael to leave, and they were pushed out. Michael had been hit in the head with a bottle, and both he and James were angry.
Defendant and his wife dropped off their friends, then continued driving in Fullerton. They came across James, Michael, and other youngster Fullerton Tokers Town gang members. The youngsters stopped defendant’s car in the street. Being “hit... up” like that “in the middle of [his] street in [his] own neighborhood” by “barrio youngsters [who] don’t know [him]” made defendant “feel like a pussy.” Defendant did not “want to feel like a punk, ” so he got out of the car so the youngsters would “show [him] the respect that [he] deserve[s].” Another veteran Fullerton Tokers Town gang member, James Hernandez, drove up at around the same time.
Defendant began arguing with James and Michael, “cussing and yelling.” He recognized them as the guys who had dented his car at the party. A bystander overheard words like “disrespect” and “little punks.”
Defendant punched James in the face. James stumbled, then began fighting back. Meanwhile, Hernandez began fighting with Michael after he admitted hitting Michael in the head at the party.
As defendant and James fought, they fell to the ground. James “hovered” over defendant. Defendant pulled out a pocket knife and stabbed the victim 13 times. Two of the stab wounds were four inches deep and one penetrated the victim’s heart, diaphragm, and lung. Defendant left the knife stuck in James’ head. Defendant fled, but was arrested later the next day. His only injuries from the fight were “[j]ust some scrapes.” Defendant later told the police, “This is what happens when a bunch of fucking kids can’t control themselves....”
The Orange County District Attorney filed an information charging defendant with one count each of murder (Pen. Code, § 187, subd. (a)) and active participation in a criminal street gang (§ 186.22, subd. (a)). It alleged the special circumstance of murder for criminal street gang purposes (§ 190.2, subd. (a)(22)) and sentence enhancements for criminal street gang activity (§ 186.22, subd. (b)(1)) and personal use of a deadly weapon (§ 12022, subd. (b)(1)).
All further statutory references are to the Penal Code.
A criminal street gang expert testified at trial. He identified Fullerton Tokers Town as the largest criminal street gang in Fullerton. The expert knew defendant and concluded he was a veteran, active Fullerton Tokers Town gang member on the night of the murder. He explained gang members have learned not to identify themselves to police as current gang members, though they may admit having been one in the past. To actually quit a gang, a member must be “jumped out” (beaten up), leave the area, or die. Someone who has been jumped out will no longer be welcomed in gang territory. Someone who has simply moved away can come back and rejoin the gang “very easily.”
The expert explained the importance of respect in gang culture. He stated veteran gang members feel they have “‘paid [their] dues’” and demand respect from youngster gang members. And veteran gang members are responsible for imposing discipline on youngsters. A veteran gang member would be enforcing gang hierarchy and discipline by fighting a youngster who had disrupted a gang party or had disrespected him. A veteran gang member would gain status and respect by killing the youngster, but if defeated, the veteran would lose status and respect.
Defendant also testified. He stated that after he dropped off the friends he picked up from the party, he and his wife decided to visit another friend. On the way, they were flagged down by someone defendant knew. Defendant got out of his car to talk to him when a group of young men came up to talk to him about the fight at the party. They were angry about the fight and wanted revenge; defendant tried to calm them down. One of them approached defendant and demanded to know who had hit him. Hernandez drove up and admitted hitting the man. Defendant tried to leave, but someone coldcocked him. He fell to the ground and curled up. The young men pulled his shirt up over his head, like in a hockey fight, and jumped on him. He heard bottles breaking and his wife saying “‘let me go’” as he was punched and kicked. Fearing for his life, he pulled out his knife and “started swinging.”
The jury found defendant guilty of second degree murder and found true the criminal street gang and knife use sentence enhancements. It found defendant not guilty of active street gang participation. The court sentenced defendant to a total term of 17 years to life in state prison.
DISCUSSION
The Court Properly Instructed the Jury on Self-Defense
The court instructed the jury on self-defense by an initial aggressor pursuant to CALCRIM No. 3471, which defendant contends misstates the law. He takes no issue with the first part of the instruction, which as given here provides: “A person who engages in mutual combat or who is the initial aggressor has a right to self-defense only if: [¶] One, he actually and in good faith tries to stop fighting; [¶] Two, he indicates by word or conduct to his opponent in a way that a reasonable person would understand that he wants to stop fighting and that he’s stopped fighting; [¶] and three, he gives his opponent a chance to stop fighting. [¶] A person who meets these requirements then has a right to self-defense if the opponent continues to fight.”
Defendant takes issue only with instruction’s phrasing of the “sudden and deadly” counterattack exception to the withdrawal requirement. CALCRIM No. 3471 also provides, as given here: “If you decide the defendant started the fight using non deadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting.”
Defendant notes the underlying cases set forth an exception for a counterattack that is “‘sudden and perilous’” — not “sudden and deadly.” (See People v. Quach (2004) 116 Cal.App.4th 294, 301-303 [citing cases]; People v. Gleghorn (1987) 193 Cal.App.3d 196, 201 [“‘where the counter assault is so sudden and perilous that no opportunity be given to decline further to fight and [the initial aggressor] cannot retreat with safety he is justified in slaying in self-defense’”]; People v. Sawyer (1967) 256 Cal.App.2d 66, 75, fn. 2 [initial aggressor must withdraw and inform opponent of withdrawal “‘unless the attack is so sudden and perilous that he cannot withdraw...’”].) Defendant contends the form instruction’s mistaken language prejudiced him because the jury could have found the victim’s counterattack was “perilous, ” even if not “deadly.”
The counterattack exception must be traced to its source. The California Supreme Court first articulated the counterattack exception in People v. Hecker (1895) 109 Cal. 451 (Hecker). It held: “Where one is the first wrongdoer, but his unlawful act is not felonious... and this unlawful act is met by a counter assault of a deadly character, the right of self-defense to the first wrongdoer is not lost. For, as his acts did not justify upon the part of the other the use of deadly means for their prevention, his killing by the other would be criminal, and one may always defend himself against a criminal attempt to take his life. But in contemplation of the weakness and passions of men, and of the provocation, which, though inadequate, was wrongfully put upon the other, it is the duty of the first wrongdoer before he can avail himself of the plea to have retreated to the wall, to have declined the strife and withdrawn from the difficulty, and to have killed his adversary, under necessity, actual or apparent, only after so doing. If, however, the counter assault be so sudden and perilous that no opportunity be given to decline or to make known to his adversary his willingness to decline the strife, if he cannot retreat with safety, then as the greater wrong of the deadly assault is upon his opponent, he would be justified in slaying, forthwith, in self-defense.” (Id. at p. 464.)
Parsing this passage shows “perilous” is interchangeable with “deadly.” The Hecker court began by describing the initial aggressor’s right to kill in self-defense when his attack “is met by a counter assault of a deadly character....” (Hecker, supra, 109 Cal. at p. 464.) The initial aggressor has this right because “his acts did not justify upon the part of the other the use of deadly means for their prevention....” (Ibid.) Ordinarily, the initial aggressor must withdraw before resorting to lethal self-defense. (Ibid.) But the counterattack exception to withdrawal arises when “the counter assault be so sudden and perilous” that withdrawal is impossible, because then “the greater wrong of the deadly assault is upon [the] opponent.” (Ibid.)
So what is the “sudden and perilous” counterattack that excuses the failure to withdraw? It is a “counter assault of a deadly character” by “the use of deadly means” that places “the greater wrong of the deadly assault” upon the opponent. (Hecker, supra, 109 Cal. at p. 464.) Thus, CALCRIM No. 3471 properly provides the initial aggressor must withdraw before resorting to lethal self-defense unless “the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight.”
Defendant’s response falls flat. Defendant asserts Hecker must have used “perilous” more broadly than “deadly” because the right to kill in self-defense arises when one perceives an imminent danger of any great bodily injury. (See In re Christian S. (1994) 7 Cal.4th 768, 773 (Christian S.).) But that holds true only when one is “without fault.” (Hecker, supra, 109 Cal. at p. 462.) Self-defense “may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified.” (Christian S., at p. 773, fn. 1.) When one is the initial aggressor, one must withdraw before using lethal self-defense unless his attack is “not felonious” and “met by a counter assault of a deadly character” “so sudden and perilous” that withdrawal is impossible. (Hecker, supra, 109 Cal. at p. 464.) The jury was correctly instructed accordingly pursuant to CALCRIM No. 3471.
Substantial Evidence Supported the Murder Conviction
Defendant contends he was guilty of voluntary manslaughter, at most. “‘Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.’ [Citation.] By contrast, ‘Manslaughter is the unlawful killing of a human being without malice.’ [Citation.] ‘The vice is the element of malice; in its absence the level of guilt must decline.’” (Christian S., supra, 7 Cal.4th at p. 773.) “‘It is the honest belief of imminent peril that negates malice in a case of complete self-defense; the reasonableness of the belief simply goes to the justification for the killing.’” (Ibid.) Thus, “‘[a]n honest but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury negates malice aforethought, the mental element necessary for murder, so that the chargeable offense is reduced to manslaughter.’” (Ibid.) This doctrine is “imperfect self defense.” (Ibid.)
Defendant contends the record established imperfect self-defense because it showed he actually believed the killing was necessary to prevent great bodily harm. Defendant and two witnesses testified the victim threw the first punch. They testified the victim’s friends were also attacking defendant. And even the victim’s girlfriend conceded the victim eventually “hovered” over defendant. Defendant testified his shirt had been pulled over his head, bottles were being broken, his wife was screaming, and he “feared for [his] life.” Given this evidence, defendant asserts no reasonable juror could find he was not acting in imperfect self-defense.
Thus, defendant challenges the sufficiency of the evidence that he acted with malice, not in imperfect self-defense. “‘The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.’” (People v. Johnson (1980) 26 Cal.3d 557, 576.) We “view the evidence in the light most favorable” to the verdict, and presume the existence of every fact the jury might reasonably deduce from it. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Substantial evidence shows defendant could not avail himself of the counterattack exception to the withdrawal requirement for self-defense. An eyewitness, the victim’s girlfriend, testified defendant was the initial aggressor and the victim fought back all alone. The jury could have credited her and rejected the contrary testimony from defense witnesses. (See People v. Jones (1990) 51 Cal.3d 294, 314 [appellate court may not “substitute [its] evaluation of a witness’s credibility for that of the fact finder”]; see also People v. Leigh (1985) 168 Cal.App.3d 217, 221 [judgment may be supported by single witness’s contradicted testimony, if jury credited it].) As the initial aggressor, defendant could not resort to lethal self-defense without withdrawing unless the victim responded with a sudden and deadly counterattack. (See Hecker, supra, 109 Cal. at p. 464.) Believing the victim’s girlfriend, the jury reasonably could have found the victim’s response was not sudden or deadly.
Moreover, substantial evidence shows defendant killed the victim out of pride, not in self-defense. Imperfect self-defense “requires without exception that the defendant must have had an actual belief in the need for self-defense.” (Christian S., supra, 7 Cal.4th at p. 783.) “[W]hether the defendant actually held the required belief is to be determined by the trier of fact based on all the relevant facts. It is not required to accept the defendant’s bare assertion of such a fear.” (Ibid.) Here, the victim was involved in the brawl that dented defendant’s car. Defendant told the police the victim and his friends made him “feel like a pussy” by hitting him up in his own neighborhood, and he wanted them to “show [him] the respect that [he] deserve[s]” as a veteran gang member. The gang expert testified veteran gang members must discipline youngsters who disrespect them. And a veteran gang member would lose respect if he lost a fight to a youngster — but would maintain his respect if he killed a disrespectful youngster. The jury could have reasonably concluded defendant had lost the upper hand in his attempt to discipline the victim and stabbed the victim only to avoid humiliation and maintain gang hierarchy.
Substantial Evidence Supported the Criminal Street Gang Sentence Enhancement
Lastly, defendant contends insufficient evidence supported the criminal street gang sentence enhancement. An additional prison term shall be imposed upon “any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).)
Substantial evidence shows defendant committed the murder “for the benefit of... or in association with” the Fullerton Tokers Town street gang. (§ 186.22, subd. (b)(1).) As already discussed, substantial evidence shows defendant killed the victim to benefit the gang and its hierarchy. And substantial evidence shows defendant acted in association with a fellow gang veteran, Hernandez, who arrived at the scene around the same time as defendant. (See People v. Martinez (2008) 158 Cal.App.4th 1324, 1332.) “[T]he jury could reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with [a] fellow gang member[].” (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.)
Substantial evidence also shows defendant committed the murder “with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1).) The California Supreme Court recently clarified “the scienter requirement... is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be ‘apart from’ the criminal conduct underlying the offense of conviction sought to be enhanced.” (People v. Albillar (2010) 51 Cal.4th 47, 66 (Albillar).) And “[t]here is no further requirement that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members. (Id. at p. 67)
Thus, it is sufficient that the record shows defendant was a Fullerton Tokers Town gang member, even if no longer “active, ” and specifically intended to commit the underlying murder. (Ibid.; see also People v. Hill (2006) 142 Cal.App.4th 770, 774 [enhancement supported where defendant specifically intended to commit charged offense].) It is also sufficient that the record shows defendant, even if not a gang member at all, specifically intended the killing to promote future criminal conduct by Fullerton Tokers Town gang members by reinforcing gang discipline and hierarchy. (See People v. Vasquez (2009) 178 Cal.App.4th 347, 353 [jury could reasonably infer the defendant specifically intended the charged murder would intimidate others and “facilitat[e] future crimes”].) Finally, it is sufficient the record shows defendant specifically intended the murder to assist Hernandez in his criminal conduct of assaulting the victim and his brother. “[I]f substantial evidence establishes that the defendant intended to and did commit the charged felony with known members of a gang, the jury may fairly infer that the defendant had the specific intent to promote, further, or assist criminal conduct by those gang members.” (Albillar, supra, 51 Cal 4th at p. 68.)
This conclusion is consistent with defendant’s acquittal on the substantive offense of active gang participation. The enhancement “does not require that the defendant be an active or current member of the criminal street gang that benefits from his crime.” (People v. Bragg (2008) 161 Cal.App.4th 1385, 1402.) “Indeed, it does not depend on membership in a gang at all.” (Albillar, supra, 51 Cal.4th at pp. 67-68.) At any rate, one may be a gang member without “actively participating” in the gang at any given moment. (People v. Castenada (2000) 23 Cal.4th 743, 747 [distinguishing active participation from “‘nominal or passive’” gang membership].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., FYBEL, J.