Opinion
G054507
05-14-2018
THE PEOPLE, Plaintiff and Respondent, v. BRYAN MARTIN HUNTINGTON AND FRANK GALLEGOS REYES, Defendants and Appellants.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant Bryan Martin Huntington. Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant Frank Gallegos Reyes. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT
It is ordered that our opinion filed herein on May 14, 2018, be modified as follows:
On page 2, in the fourth full paragraph, delete the first sentence, and replace it with the following:
A jury convicted Huntington of assault with a deadly weapon and second degree robbery, and found true the deadly weapon enhancement.
On page 10, in the first full paragraph, delete the word "fair" in the second sentence, and replace it with "jury."
On page 13, in the first paragraph, delete the first sentence, and replace it with the following:
Huntington and Reyes contend no substantial evidence supported giving the above-italicized optional sentence in this case, and the court's response to the jury's questions exacerbated the error.
On page 13, delete the fourth paragraph, and replace it with the following:
Huntington and Reyes acknowledge Tufunga, and the limitations of the claim-of-right defense. However, relying on Reyes's testimony, they argue no substantial evidence showed Reyes took the tent to satisfy Hunt's $20 debt.
On page 15, at the end of the third full paragraph, add the following sentence:
Having concluded there was no error, we need not address Huntington's argument the erroneous self-defense instructions also prejudiced his robbery conviction.
The modification does not change the judgment. The petition for rehearing is DENIED.
THOMPSON, J. WE CONCUR: ARONSON, Acting P. J. IKOLA, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CF2288) OPINION Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed. Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant Bryan Martin Huntington. Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant Frank Gallegos Reyes. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.
An information charged Bryan Martin Huntington, Frank Gallegos Reyes, and Rebecca Patricia Gallegos with second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c); count 1; all further statutory references are to the Penal Code), and assault with a deadly weapon not a firearm, i.e., pieces of a wood two-by-four (§ 245, subd. (a)(1); count 2).
Reyes was separately charged with attempted robbery (§§ 211, 664, subd. (a); count 3), and assault with a second deadly weapon, i.e., a piece of metal pipe (§ 245, subd. (a)(1); count 4).
Huntington and Reyes were alleged to have inflicted great bodily injury (§ 12022.7, subd. (a)), and used a deadly weapon to commit robbery, and that Reyes used a deadly weapon to commit attempted robbery (§ 12022, subd. (b)(1)).
A jury convicted Huntington of second degree robbery, and found true the deadly weapon enhancement. The jury also found Huntington had not inflicted great bodily injury.
The jury convicted Reyes of robbery, but acquitted him of counts 2 and 3, and found not true both personal use of a deadly weapon and great bodily injury enhancement allegations. Count 4 was dismissed on the prosecutor's motion.
Gallegos was acquitted of all charges.
The court denied Reyes's motion for a new trial, and imposed the low term of two years for robbery.
Huntington received an aggregate term of three years, consisting of a two-year term for robbery, plus one year for the use of a deadly weapon.
Huntington and Reyes raised claims of instructional error and ineffective assistance of counsel. We find their contentions meritless, and affirm the judgment.
FACTS AND PROCEDRUAL HISTORY
1. Prosecution Evidence
a. Background
In the summer of 2016, a large number of people lived in make-shift tent encampments along the Santa Ana River in Anaheim. Reyes and his mother, Gallegos, his stepfather, Carlos Galvan, and his pregnant girlfriend, Maritza Hernandez, lived in two tents placed close together.
Brandon Hunt and his partner of five years, Matthew Corkum, lived in a tent near Reyes's campsite. Although the two families were friendly, Hunt and Corkum's relationship was volatile. Galvan and Reyes saw numerous episodes of verbal and physical abuse, violence, and vandalism involving the couple.
Huntington, also known as "Joker," was another resident of the encampment, and Reyes's friend.
b. Hunt
One day, Hunt met Bryan Hunter, and he invited Hunter to stay at his campsite. Hunter stayed in Hunt and Corkum's tent for a couple of days, but Hunter's grandmother soon gave him a new Coleman six-person tent.
Hunter lived in his new tent for about a week, but after a week in the tent, Hunter decided to live in his car. Hunt testified Hunter gave him the new tent, and his friend, Julie Dusablon, witnessed the transaction.
After Hunter left the area, Hunt and Reyes took his tent down. Hunt testified he told Reyes that Hunter had given him the tent. However, Hunt also admitted there was some confusion on the issue. In any event, Gallegos agreed to store the tent for a few days.
Two days later, Hunt asked Reyes about the tent. The two discussed who needed it more. Hunt's tent was old and worn, and he wanted a new tent. However, Hernandez was eight months pregnant and Reyes thought he might need a larger tent for his expanding family. After a few minutes of back and forth, Reyes insisted Hunt use the tent.
Hunt offered Reyes $20 for the tent, but not because Reyes owned the tent. Hunt merely appreciated being able to use the tent, and he thought Reyes could use the money with a child on the way. Reyes declined Hunt's offer. He told Hunt to use the $20 "to help yourself." Hunt insisted he pay Reyes as a "good faith offer only." Even though the new tent belonged to Hunt, he did not want Reyes to "be left empty-handed."
Hunt took the tent back to his campsite. He knew Orange County employees were about to clear this area, and he decided to roll-up his old tent and pitch the new tent about an eighth of a mile away. Reyes and his family moved to a different area.
For about a month, Hunt had no idea Reyes had a problem with the tent transaction, even though Hunt and Reyes had seen each other on a couple of occasions during that month.
However, on the morning of August 28, Reyes appeared at Hunt and Corkum's new campsite. Reyes was yelling and appeared upset. Hunt tried to talk to Reyes, but the conversation became heated. Reyes said he was there for the money or the tent. When Hunt refused to give the tent to Reyes, Reyes threatened to bring someone back who would take the tent by force.
Corkum yelled at Reyes, and Reyes walked away. However, about 20 minutes later, Reyes batted some rocks at Hunt and Corkum's campsite. Reyes continued pelting the campsite for about 30 to 40 minutes before he demanded the tent or the money for a second time. Reyes threatened to go get Joker and walked away.
Once Reyes left the area, Hunt went to a nearby Walmart for groceries. When Hunt returned, there were a number of emergency vehicles at his campsite, and Corkum was bleeding and disoriented. Corkum told Hunt that Reyes, Joker, and Gallegos attacked him and took the tent.
c. Corkum
Corkum, who received temporary financial assistance and immunity from prosecution for a domestic-violence incident with Hunt from the Orange County District Attorney's office, testified Reyes returned with Gallegos and Huntington after Hunt left their camp. Reyes repeatedly demanded the tent, and Corkum repeatedly asked him to wait until Hunt returned. A verbal argument ensued. Huntington and Reyes advanced on Corkum with Gallegos standing behind them. Huntington used his fist to hit Corkum in the jaw. Corkum denied holding a stick, and threatening the trio, before Huntington hit him.
Corkum said the blow stunned him and he sat on the ground. When the argument restarted, Huntington hit Corkum, again. Corkum swung wildly at Huntington and missed. Reyes then joined the fray, and he and Huntington wrestled Corkum to the ground. Corkum bit Reyes, got to his feet, and backed away from his attackers.
Corkum said he grabbed part of a wood two-by-four, and swung it at Huntington and Reyes as he retreated. Huntington came closer to him, grabbed the piece of wood, and hit Corkum in the head. Corkum, bleeding and a little confused, grabbed a second piece of wood and ran around his campsite while screaming for help.
At that point, Corkum decided to let Reyes and Huntington have the tent. Reyes took down the tent, and Reyes, Gallegos, and Huntington left the area. Corkum, bleeding and upset, walked to a nearby business where an employee called 911.
Paramedics arrived and took Corkum to the hospital where he was treated for cuts and bruises. When Corkum returned to his campsite later that night, he discovered some of his bedding, and a cell phone were missing.
Deputies found two pieces of a wood two-by-four, one about 30 inches long and the other about 20 inches long, and a lead pipe, with what appeared to be blood on them, about 100 yards from Hunt and Corkum's campsite. However, the blood was not subjected to any forensic tests.
d. Pretrial Statements
An Orange County Sheriff's deputy took contemporaneous statements from Corkum, Hunt, and Reyes.
Hunt told the deputy Hunter had given him the tent, and Reyes threatened to take it by force. He did not mention that Reyes batted rocks at his campsite.
Corkum was interviewed in the hospital. He told the deputy someone gave him the tent. He explained that after the morning incident with Reyes, Hunt left and Reyes returned with two other people. Reyes was waving a lead pipe around while he demanded first the tent, and then some money. Corkum identified Reyes, Gallegos, and Huntington as his attackers from photographic lineups.
Reyes, who was uninjured, said he went to Hunt and Corkum's campsite because he sold the tent to Hunt for $20 and he wanted his money. Reyes and Hernandez were in the Coleman tent when Reyes was arrested.
2. Defense Evidence
a. Reyes
Reyes, who had prior convictions for petty theft and corporal injury on a cohabitant, testified Hunter gave him the new Coleman tent for free. About a day after Hunter abandoned the tent, Reyes took it down and stored it in Gallegos and Galvan's tent.
A couple of days later, Hunt came to Reyes's campsite and offered him $20 for the tent. Reyes testified he and Hunt had a conversation about the tent, and he told Hunt he intended to use the tent after his girlfriend gave birth. Reyes said he offered to let Hunt borrow the tent, but Hunt repeatedly offered him $20 for it, so he agreed and allowed Hunt to take the tent.
Reyes testified he periodically asked Hunt for the $20 during the next couple of weeks, even though he really wanted the tent back. Hunt told Reyes to come by his campsite anytime to collect on the debt, but Hunt never had money. Three days before the incident, Reyes told Hunt he had changed his mind and did not want the $20. Hunt said, "Okay."
On August 28, Reyes went to Hunt and Corkum's campsite to get his tent. Corkum was alone. Reyes asked for the tent, and Corkum became "verbally aggressive." Corkum yelled at Reyes to "get the fuck out of here," and "it's not your fucking tent."
Reyes told Corkum he had spoken to Hunt about the tent, but Corkum would not yield. Reyes explained that Gallegos had been present when he talked to Hunt. He told Corkum he would go get Gallegos to prove it.
After a couple of minutes of fruitless conversation, Reyes left the campsite to get Gallegos. Reyes denied batting rocks at Hunt and Corkum's campsite.
About two hours later, Reyes and Gallegos were walking back to Hunt and Corkum's campsite when they met Huntington. Reyes told Huntington what had happened with Corkum, and Huntington decided to go with them.
When Reyes, Gallegos, and Huntington reached Corkum's campsite, Reyes repeated his demand for the tent. Corkum refused, and he yelled, "I don't give a shit. You're not getting the tent back. Doesn't belong to you."
Reyes testified Corkum walked toward Gallegos with a piece of a two-by-four in his left hand. Corkum got within a few feet of Gallegos's face and yelled, "It's not your tent." Gallegos responded, "You weren't there for the transaction . . . . You don't know anything about what happened."
Reyes told Corkum to relax, and to have some respect for Gallegos's advanced age, but Corkum continued to yell. After a minute or two of yelling, Huntington punched Corkum in the jaw.
Corkum immediately dropped the stick, and walked a few feet away. He yelled, "gay bashing," and lunged at Reyes. Corkum and Reyes wrestled on the ground. During the struggle, Corkum bit Reyes and grabbed another piece of a two-by-four. Corkum swung the piece of wood, and Reyes moved out of his way. Reyes also picked up a pipe and threw it out of Corkum's reach.
Reyes said Huntington grabbed the piece of wood from Corkum and hit Corkum in the head. However, Corkum grabbed another piece of wood and swung it at Huntington. Huntington swung the piece of wood he took from Corkum, and Corkum was hit in the head. At this point, Corkum quit fighting. Corkum told Reyes, "If you're going to take it, just go ahead . . . ."
Reyes testified Corkum made a scene by running around and yelling, "Help, help, help, somebody help," and "someone call the cops." Nevertheless, Reyes took Corkum and Hunt's belongings out of the tent before he disassembled it, and he and Gallegos went back to their campsite with the tent. Huntington disappeared.
Galvan immediately put up the tent, and Reyes and Hernandez were living in it when the police came to arrest Reyes a few days later.
b. Hernandez
Hernandez testified Hunter came to their campsite about a week after Reyes and Hunter took down Huntington's tent. According to Hernandez, Reyes initially refused Hunt's offer of money in exchange for the tent, but Reyes eventually agreed Hunt could have the tent for $20. She also recalled two occasions during the following week when Hunt asked Reyes for more time to pay for the tent. On August 28, Reyes brought the tent back to their campsite.
c. Galvan
Reyes and Galvan testified Hunt and Corkum regularly argued and fought with each other. They also agreed Corkum was the more volatile of the two.
Galvan also testified Reyes got along with everyone in the homeless community, and he had a reputation for being a peaceful person. Galvan did not change his opinion of Reyes when he learned Reyes had a prior conviction for corporal injury on a cohabitant.
3. Rebuttal Evidence
Dusablon knew everyone involved in the incident. She testified Hunt got the tent from Reyes, but she did not hear the details of the transaction. However, Reyes once asked her to tell Hunt he wanted the $20 for the tent. Dusablon said she sent a text to Hunt conveying this information, but Hunt never responded.
4. Arguments of the Parties
Pointing to Reyes, Hernandez, and Dusablon's testimony, the prosecutor argued Reyes sold the tent to Hunt, and he had no right to repossess the tent to satisfy Hunt's $20 debt.
With respect to the assault, the prosecutor asserted Huntington hit Corkum without provocation, or justification, and that Huntington and Reyes beat Corkum until he stopped fighting to obtain the tent, not out of fear Corkum would inflict serious injury. The prosecutor emphasized how Huntington twice relieved Corkum of his piece of wood, and that Huntington used those pieces of wood in such a way as to cause Corkum great bodily injury.
Reyes argued he was not guilty of robbery because he had a bona fide claim-of-right to the tent, and he only loaned it to Hunt. Reyes denied taking the tent in lieu of the $20 debt Hunt owed. Huntington, relying on Reyes's claim-of-right defense, asserted no aider and abettor liability attached to inculpate him in the robbery.
Huntington and Reyes argued they assaulted Corkum in self-defense, or in Gallegos's defense. Reyes's attorney said Corkum rushed at Reyes, tackled him, and they ended up wrestling on the ground. He argued, "the only reason that fight stops is because . . . Corkum just stops the fight."
DISCUSSION
1. Instructional Error
a. Arguments
Huntington and Reyes contend the court gave erroneous instructions on the claim-of-right defense as it applies to robbery, and the reclaimed right of self-defense during mutual combat as it applies to assault with a deadly weapon. They argue the court's erroneous instructions deprived them of their state and federal constitutional rights to due process and a fair trial.
The Attorney General asserts Huntington and Reyes forfeited these issues by failing to object to the instructions, or request their amplification, at trial. Huntington and Reyes contend no contemporaneous objection was necessary because the court's erroneous instructions implicate their substantial rights. (§ 1259.) In the alternative, Huntington and Reyes contend any forfeiture of the issues constitutes prejudicial ineffective assistance of counsel. Thus, we must address the merits to resolve the issues, regardless of any forfeiture.
b. Standard of Review
The standard of review for instructional error is well-established. "We review de novo whether a jury instruction correctly states the law. [Citation.] Our charge is to determine whether the trial court '"fully and fairly instructed on the applicable law." [Citation.]' [Citation.] We look to the instructions as a whole and the entire record of trial, including the arguments of counsel. [Citation.] Where reasonably possible, we interpret the instructions '"to support the judgment rather than [to] defeat it."' [Citation.]" (People v. Mason (2013) 218 Cal.App.4th 818, 825.)
"'The trial court is charged with instructing upon every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant's theory of the case. [Citations.]' [Citation.]" (People v. Chavez (2018) 21 Cal.App.5th 971, 996.) With these principles in mind, we address each argument in turn.
2. Claim-of-Right Defense Instruction
a. Background
"An essential element of any theft crime is the specific intent to permanently deprive the owner of his or her property . . . . '"'Although an intent to steal may ordinarily be inferred when one person takes the property of another, particularly if he takes it by force, proof of the existence of a state of mind incompatible with an intent to steal precludes a finding of either theft or robbery. It has long been the rule in this state and generally throughout the country that a bona fide belief, even though mistakenly held, that one has a right or claim to the property negates felonious intent. [Citations.] A belief that the property taken belongs to the taker [citations] . . . is sufficient to preclude felonious intent. Felonious intent exists only if the actor intends to take the property of another without believing in good faith that he has a right or claim to it.'"' [Citations.]" (People v. Williams (2009) 176 Cal.App.4th 1521, 1526-1527.)
In keeping with this principle, the court instructed the jury on the claim-of-right defense as follows:
"If a defendant obtained property under a claim of right, he or she did not have the intent required for the crime of theft or robbery.
"A defendant obtained property under a claim of right if he or she believed in good faith that he or she had a right to the specific property or a specific amount of money, and he or she openly took it.
"In deciding whether a defendant believed that he or she had a right to the property and whether he or she held that belief in good faith, consider all the facts known to him or her at the time he or she obtained the property, along with all the other evidence in the case. The defendant may hold a belief in good faith even if the belief is mistaken or unreasonable. But if the defendant was aware of facts that made that belief completely unreasonable, you may conclude that the belief was not held in good faith.
"The claim-of-right defense does not apply if the defendant attempted to conceal the taking at the time it occurred or after the taking was discovered. In deciding whether a defendant believed that he or she had the right to the property and whether he or she held that belief in good faith, you may consider if the defendant did not attempt to conceal the taking at the time it occurred or after the taking was discovered.
"If you conclude that the property taken was to offset or pay claims against the proper owner of an undetermined or disputed amount, the claim-of-right defense does not apply.
"If you have a reasonable doubt about whether a defendant had the intent required for theft or robbery, you must find him or her not guilty of robbery, attempted robbery, petty theft, and attempted petty theft." (Italics added.)
b. Jury Question
During deliberations, the jury asked the court the following question: "Does claim of right apply for disputed property as well as for money that might be owed as a claim on the disputed property?"
After consulting with the parties, the court told the jury the claim-of-right defense applies to disputed property. The court referred the jury to the second paragraph of CALCRIM No. 1863, which requires the defendant to have a good faith belief in his or her right to the property.
The court further instructed the jury the claim-of-right defense would not apply to money owed in connection with disputed property. For this principle, the court directed the jury to review the above-italicized sentence of CALCRIM No. 1863, which excludes property takings when committed to offset monetary claims against the property owner.
c. Argument
Reyes contends no substantial evidence supported giving the above-italicized optional sentence in this case, and the court's response to the jury's question exacerbated the error. We disagree.
As noted, "[t]he claim-of-right defense provides that a defendant's good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of theft or robbery." (People v. Tufunga (1999) 21 Cal.4th 935, 938 (Tufunga); People v. Lain (1943) 57 Cal.App.2d 123, 130 [felonious intent element negated "'when the owner takes his own specific property from the possession of another'"].) But there are limitations on the defense. (People v. Barnett (1998) 17 Cal.4th 1044, 1144 [defense is not permitted where the claimed right to the property is rooted in a "'notoriously illegal'" transaction, or if the claim at issue is unliquidated and subject to dispute].)
As pertinent here, the claim-of-right defense does not apply if the property was taken "to satisfy, settle or otherwise collect on a debt, liquidated or unliquidated." (Tufunga, supra, 21 Cal.4th at p. 956; CALCRIM No. 1863 ["The claim-of-right defense does not apply to offset or pay claims against the property owner of an undetermined or disputed amount"]; see 2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Property, § 103, p. 144 [defense does not apply "where property is taken to satisfy debt"].)
Reyes acknowledges Tufunga, and the limitations of the claim-of-right defense, and he relies on his own testimony to argue no substantial evidence showed he took the tent to satisfy Hunt's $20 debt.
Of course, Reyes neglected to mention that his testimony was impeached with his pretrial statement. Immediately after the incident, Reyes told an investigating officer he went to Hunt and Corkum's campsite to get the $20. The jury could have reasonably credited this evidence, and not Reyes's trial testimony. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181 [the testimony of a single witness is sufficient to support a conviction unless the testimony is physically impossible or inherently improbable]; CALCRIM No. 301.)
In addition, Hernandez testified Reyes agreed to take the $20 Hunt offered for the tent, but Hunt never paid the money. Dusablon said Reyes once asked her to tell Hunt to pay him $20. Dusablon sent a text to Hunt conveying this information, but Hunt never responded. In conjunction with Reyes's pretrial statement, this evidence suggests Hunt owed Reyes $20, and it also supports an inference Reyes took the tent to collect on this debt.
In this case, the ultimate question was whether Reyes perpetrated a robbery to "satisfy, settle or otherwise collect on a debt, liquidated or unliquidated," or commit a forcible taking with the sole intent of recovering specific personal property in which he had a bona fide claim of ownership. (Tufunga, supra, 21 Cal.4th at p. 956.)
The instructions as given allowed the jury to determine whether Reyes took the tent with the good faith belief it rightfully belonged to him. In which case, there was no robbery, and Huntington could not be convicted as an aider and abettor. (See People v. Williams (2009) 176 Cal.App.4th 1521, 1527-1529.)
However, if the jury concluded Reyes took the tent to offset Hunt's $20 debt, the claim-of-right defense was inapplicable. With the facts presented at trial, the court correctly decided to give the optional debt-collection limitation language of CALCRIM No. 1863. (Tufunga, supra, 21 Cal.4th at p. 956.) There was no error.
Reyes cites People v. Barnett (1998) 17 Cal.4th 1044, 1146, and asserts "[t]his was not a case about taking the victim's property as compensation for property in which [Reyes] believed he had a good faith interest."
In Barnett, the court refused to instruct on the claim-of-right defense as it applied to one of two robbery victims in a capital case. The appellate court concluded the instruction should not have been given at all. (Barnett, supra, 17 Cal.4th at p. 1146.) In that case, the defendant simply took whatever property was immediately available to satisfy an uncertain, and unacknowledged, debt without regard to whether the items came from the debtor. (Ibid.) Barnett is simply inapt.
Reyes also cites People v. Sheasbey (1927) 82 Cal.App. 459, and argues "[t]his instead is a case of taking the asset itself . . . ." But Sheasbey is also unavailing. That case involved property sold on installment payments pursuant to a written lease contract. (Sheasbey, at pp. 461-462.) One provision allowed the seller to "'retake said personal property as owner thereof"' in case of default. (Ibid.) Sheasbey does not apply under the facts presented here.
With respect to the court's response to the jury's question on the issue, section 1138 states, "[t]he court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.]" (People v. Beardslee (1991) 53 Cal.3d 68, 97.) "Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. [Citations.]" (Ibid.)
Here, the court's response correctly informed the jury of the applicable law. The claim-of-right defense applied if Reyes had a good faith belief in his right to the tent, but not if he took the tent to satisfy a debt. (Tufunga, supra, 21 Cal.4th at p. 956.) The court also referred the jury to the instructions as given. Nothing more is required.
3. Self-Defense Instructions
a. Background
Huntington and Reyes were charged with assault with a deadly weapon in the scuffle with Corkum. They argued Corkum started the physical fight by rushing toward Gallegos with a piece of wood in his hand, and they reacted to Corkum in self-defense, or in the defense of Gallegos.
The court gave a series of instructions on self-defense without defense objection, or request for modification. (CALCRIM Nos. 3470 [Right to Self-Defense or Defense of Another], 3471 [Right to Self-Defense: Mutual Combat or Initial Aggressor]; 3472 [Right to Self-Defense: May Not Be Contrived], 3474 [Danger No Longer Exists or Attacker Disabled], 3476 [Right to Defend Real or Personal Property].)
As given, CALCRIM No. 3470 stated, in pertinent part, a defendant acts in lawful self-defense and is not guilty of assault, if (1) he reasonably believes he was in imminent danger of suffering great bodily injury; (2) he reasonably believes the immediate use of force was necessary to defend against that danger; and (3) he uses no more force than was reasonably necessary to defend against that danger.
The court also gave the following version of CALCRIM No 3471, which explains the right of self-defense in mutual combat. The instruction stated, "A person who engages in mutual combat or who starts a fight has a right to self-defense only if:
"1. He or she actually and in good faith tried to stop fighting;
"2. He or she indicated, by word or by conduct, to his or her opponent, in a way that a reasonable person would understand, that he or she wanted to stop fighting and that he or she had stopped fighting;
"AND
"3. He or she gave his or her opponent a chance to stop fighting.
"If a defendant meets these requirements, he or she then had a right to self-defense if the opponent continued to fight.
"A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose."
The court did not give the following optional paragraph in CALCRIM No. 3471: "However, if the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend (himself/herself) with deadly force and was not required to try to stop fighting (,/ or) communicate the desire to stop to the opponent[, or give the opponent a chance to stop fighting].]"
b. Argument
According to Corkum's pretrial statements and testimony, Huntington and Reyes advanced on Corkum during their verbal altercation, and Huntington hit him in the jaw without warning. Huntington and Reyes wrestled with Corkum, and Huntington hit Corkum in the head with pieces of wood.
Reyes testified Corkum held a piece of wood in a threatening manner when he verbally confronted Gallegos, and Huntington intervened either in self-defense, or in the defense of Gallegos. Huntington and Reyes admitted they were mutual combatants in a fistfight, but they argued Corkum was the first to respond with deadly force by holding a piece of wood in a threatening manner.
On appeal, Huntington asserts Corkum's deadly response to his use of nondeadly force was so "sudden and perilous" it excused him from withdrawing from the fight, citing People v. Quach (2004) 116 Cal.App.4th 294, 301-303 (Quach).
The Attorney General argues Corkum's reaction to Huntington's use of force was neither sudden, nor perilous. Corkum was outnumbered three-to-one, and Huntington and Reyes had ample opportunity to extricate themselves from the whole situation. We agree with the Attorney General.
For Huntington to have reclaimed the right of self-defense, the facts would have to show he used deadly force out of necessity and in response to a sudden, deadly attack. (People v. Heckler (1895) 109 Cal. 451, 464.) But the facts in this case do not show Huntington fearfully responded to a sudden criminal attempt to take his life. (See Levenson & Riccardulli, Cal. Criminal Law (The Rutter Group 2012) ¶ 4.27, p. 4-39 [fear alone must have motivated the defendant to act in self-defense].)
Corkum repeatedly asked Reyes to come back when Hunt was available, but Reyes refused and then got reinforcements. Even assuming Corkum rushed Reyes and Gallegos, Huntington hit Corkum and knocked him to the ground. The fight could have ended there. True, Corkum grabbed a stick in response, but he merely waved it around and Huntington quickly disarmed him.
Quach does not aid Huntington. In Quach, the defendant and other members of his gang confronted a rival gang outside a bar. Multiple witnesses testified the defendant pulled out his gun and shot the victim after the victim fired the first shot. (Quach, supra, 116 Cal.App.4th at p. 297-298.)
On appeal, the defendant argued the trial court erred by giving an instruction on self-defense that prevented him from asserting his right to self-defense based on the victim's sudden use of deadly force. (Quach, supra, 116 Cal.App.4th at p. 301.) The appellate court held there had been reversible error in giving self-defense instructions without the exception. (Quach, at pp. 302-303.) The bracketed paragraph containing the exception Huntington asserted should have been given here was added after the Quach case.
However, the facts in Quach justified a sua sponte instruction. The facts here do not. Had Huntington stopped with the first punch, his argument might have merit. But in this case, Huntington and Reyes continued the physical violence long beyond that necessary to preserve life and limb. They fought with Corkum until he gave in and allowed them to take the tent. Although Corkum's testimony was inconsistent with Reyes's testimony, under either set of facts, the Quach instruction was not warranted.
Moreover, assuming error, it is harmless beyond a reasonable doubt. (Quach, supra, 116 Cal.App.4th at p. 303.) While it is not our province to decide the underlying facts (id. at p. 302), under the facts presented at trial, no reasonable juror could have found Huntington and Reyes were reacting to a sudden and perilous threat to their life during their fight with Corkum.
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: ARONSON, ACTING P. J. IKOLA, J.