Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tuolumne County No. CRF21469, Eleanor Provost, Judge.
Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
INTRODUCTION
Appellant Robert Aubrey Morash, Jr. was involved in a fight instigated by brothers Randall and Matthew Clements that culminated in appellant cutting Matthew in the neck with a utility knife. Appellant was convicted of assault with a deadly weapon by means of force likely to produce great bodily injury. During the trial, the court gave the jury instructions on self-defense, including Judicial Council of California Criminal Jury Instructions (2007) CALCRIM No. 3471 (CALCRIM), which told the jury that self-defense is not available to a person who engages in mutual combat or who is the first one to use physical force unless certain requirements are first met.
On appeal, appellant contends the trial court erred by instructing the jury with CALCRIM No. 3471, because the record lacks evidence that appellant was engaged in mutual combat for purposes of California’s law of self-defense. Respondent concedes the lack of evidentiary support for the instruction but asserts the error was not prejudicial. For reasons discussed below, we agree with the parties that the trial court erred in instructing the jury with CALCRIM No. 3471. Given the entirety of the record, we conclude the error was prejudicial and reversal is required. Accordingly, we do not address appellant’s other contentions on appeal.
FACTS
The Prosecution
The incident underlying this case occurred on July 3, 2006, at a mobilehome park in Sonora. At the time, Randall and Matthew Clements were living at their mother’s residence in the mobilehome park. On the evening of July 3, 2006, the Clements brothers went to Don Pedro to attend a fireworks event. During the course of the evening, they consumed a number of alcoholic beverages and became intoxicated.
Randall left Don Pedro before Matthew did and stopped by Adam Gee’s residence around 10:30 or 11:00 p.m. Gee lived next door to the Clements’ residence. When Randall arrived at Gee’s residence, he saw appellant and David Ethridge sitting together on the couch. They were looking at a box cutter or utility knife. Appellant said he had just gotten a fresh blade for it and passed it to Ethridge. Ethridge looked at it and passed it back to appellant.
Randall verbally confronted appellant and Ethridge. At trial, Randall could not recall specifically what he was upset about but acknowledged that it probably had to do with his impression that appellant and Ethridge were waiting for someone to drop off some drugs. Randall left Gee’s trailer feeling like appellant and Ethridge had “disrespected” him.
Similarly, Ethridge testified and reported to sheriff’s detectives that Randall showed up at Gee’s residence intoxicated and belligerent. Ethridge admittedly went to Gee’s trailer to buy drugs. However, when Randall showed up and started asking Ethridge and appellant why they were there and whether they were buying drugs, Ethridge replied, “You don’t need to ask me that shit, because I don’t know you.” Randall became angry and left.
After Randall left Gee’s residence, he met his brother Matthew, who was just returning from the fireworks event, in their driveway. Randall testified that he told Matthew, “these two fools over here, trying to F with me … let’s go handle this.” Randall confirmed that, as they were headed to Gee’s trailer, it was his intention to fight with appellant and Ethridge.
The Clements brothers differed in their description of what happened next. According to Randall, Matthew went up to Gee’s porch and told appellant and Ethridge through the door to come outside, which they did, and that a fight then broke out between the four men in Gee’s driveway. Matthew, on the other hand, stated that when he and Randall headed over to Gee’s residence, appellant and Ethridge were already outside in the driveway, and that the four men met somewhere in the middle, and then a fight broke out. Neither brother could recall who threw the first punch. Matthew testified that before they started fighting, appellant was “talking [] shit.” Appellant said he was “a hell of a lot older” than Matthew and that he would kill him. Matthew replied, “Age ain’t nothing.” At this point, Matthew did not see any weapon in appellant’s hand.
According to the Clements brothers, Randall paired off to fight with Ethridge, while Matthew paired off with appellant. Randall testified that Ethridge started to run around appellant’s pickup truck, which was parked in Gee’s driveway. Randall chased Ethridge and they fought for a moment next to the truck. Ethridge then ran away towards a dumpster.
Meanwhile, appellant and Matthew exchanged punches. Appellant hit Matthew in the face, causing Matthew to stumble down a hill. Matthew ran back to the driveway to continue fighting with appellant. They exchanged a few more punches and then appellant took a step back and opened up the door of his truck. Matthew testified that appellant looked like he was leaning in to grab something, so Matthew tried to hit him. Appellant turned around and cut Matthew in the neck with a utility knife. Matthew saw blood pouring down his chest and told Randall he had been cut. Matthew was subsequently transferred to a hospital by helicopter and received staples and internal stitches in his neck.
Randall, who was standing next to the passenger door of appellant’s truck, heard the truck start up. Matthew told him, “I’m leaking, bro.” Randall saw Matthew holding his hand up to his neck. Randall took his shirt off and tied it around Matthew’s neck.
Randall testified that as appellant was driving away, appellant tried to smash him and Matthew between his truck and Gee’s residence. Randall responded by throwing a rock through appellant’s open passenger side window, and then throwing another rock, which smashed appellant’s windshield. Randall denied that he threw any other rocks during the incident, and Matthew denied throwing any rocks at all during the incident.
Appellant, Ethridge, and Gee were soon detained on the road near the mobilehome park. A sheriff’s corporal spotted appellant’s truck parked on the side of the road and the three men exiting the vehicle. Appellant’s windshield was shattered and there was a lot of blood on his truck, including across the front end, down both sides, and inside the cab.
Ethridge’s recollection of the fight was elicited partly through the prosecutor’s examination of Ethridge as an adverse witness (Evid. Code, § 776) but mainly through the testimony of sheriff’s detectives who interviewed him following the incident. Ethridge testified that when Randall and Matthew returned to Gee’s residence, they tried to push their way through the front door. Gee pushed back against the door and effectively prevented Randall and Matthew from entering the residence. At the time, appellant and Ethridge were still sitting on the couch. Ethridge testified that he did not see much of the fight because he ran away. Ethridge explained he did not want to fight because he would be in violation of his parole. Ethridge stopped running when he reached the main road near the mobilehome park. Appellant came and picked Randall up in his truck.
Ethridge, appellant, and Matthew each admitted to having suffered prior felony convictions, the majority of which were for theft-related crimes.
Ethridge reportedly told sheriff’s detectives that when the Clements brothers returned to Gee’s residence together, appellant got up, pulled his utility knife out of his pocket, held it to the side of his leg with the blade extended, and made a comment like, “These guys don’t know who they’re messing with,” or “You guys don’t know who you’re fucking with.”
Ethridge remained inside Gee’s residence, while appellant walked outside. Ethridge heard some yelling and what sounded like a confrontation. He then walked outside and saw one of the Clements brothers throw a rock or board at appellant. Appellant responded by throwing a can of beer at one of the brothers. The Clements brothers picked up rocks from the side of the road and threw them at appellant as he headed to his truck. It looked to Ethridge like appellant was trying to leave. Ethridge heard appellant’s truck start up. Ethridge tried to jump into the truck, but appellant slammed the passenger door shut. Ethridge then saw Matthew going through appellant’s window, trying to punch appellant through the window.
Ethridge further reported that when appellant picked Ethridge up later in his truck, appellant said he needed to pull over to wash the blood off his truck. Appellant took the utility knife and placed it in a cup of water in the cup holder in the center console and washed blood off the knife. Ethridge asked appellant, “What the fuck did you do?” Appellant replied, “I cut his fucking ass.” Appellant also reportedly told Ethridge that he had used about a quarter of a gram of heroin earlier in the day.
Appellant also made statements concerning the circumstances of the fight during two separate interviews with Sheriff’s Detective Jarrod Pippin. According to Detective Pippin, appellant’s account of the fight was consistent in both interviews. Where appellant was inconsistent was in his description of his activities preceding the fight. For example, appellant first claimed that Ethridge, along with Gee, showed up at his shop earlier in the day because Ethridge owed appellant some money for a cell phone. Appellant stated he then drove them to Gee’s residence to drop Gee off, and was going to take Ethridge to get food at Jack-in-the-Box. Later, appellant admitted he lied and in fact only Ethridge showed up at his shop and they went to Gee’s house because Ethridge wanted to but drugs. Appellant also initially claimed he had not used drugs for quite some time and had only taken a prescription Vicodin that day for his back. Later, appellant admitted he used heroin and smoked some marijuana earlier in the day.
Detective Pippin testified that appellant told him that he thought Randall was drunk when he came to Gee’s residence. When appellant and Ethridge were later leaving Gee’s residence, Randall returned with his brother Matthew. One of the brothers threw a beer can at appellant. When he ducked to miss the can, a rock was thrown at him. Matthew then “sucker punched” appellant.
When appellant got to his truck, Matthew came through the driver side window and started assaulting appellant through the window. Appellant felt one way to get Matthew away from him was to swing his box cutter at him. As appellant was attempting to leave, a rock came through the passenger’s window and hit him in the chest. Then another rock hit the windshield.
Detective Pippin personally inspected appellant’s truck where it was stopped. The detective looked inside and saw a box cutter in the center console. The exterior of the vehicle as well as the interior was covered with a large amount of blood. The windshield was shattered and there was glass inside the truck.
Appellant claimed he was not sure whether he actually cut Matthew, even when confronted with the fact of all the blood on his truck. Appellant said he stopped the truck because of the broken windshield. Appellant explained there was glass in the truck and glass had gotten in his pants. He wanted to pull over so he could get glass out of his pants and his truck.
Detective Pippin confirmed that appellant had multiple abrasions in areas where appellant said he had been struck by rocks, particularly on the right side of his chest, where he said he was hit when he was sitting in the truck. Appellant had similar marks on his back where he said a rock or beer can had been thrown at him. On cross-examination, Detective Pippin opined that the appearance of appellant’s abrasions was consistent with somebody being hit by a rough or coarse object, rather than a fist.
During cross-examination, Detective Pippin also testified in greater detail regarding his written report of appellant’s statements during the interviews. According to his written report, appellant told Detective Pippin that at the beginning of the fight, one of the Clements brothers walked over to his truck and hit the hood and pulled on the driver side mirror. Appellant told him to leave his truck alone, he did not know them, he had not done anything to them, and just to let him go home. One of the brothers then came running and threw a beer at him. Appellant turned to miss the beer and a board hit him in the back.
When appellant was hit in the back, it caused him to drop to one knee. Both brothers then came running at him. Appellant was able to get up, run to his truck, and get it started. A rock came through the open window and struck him in the shoulder. A larger rock then struck his windshield. While the rock was striking the windshield, Matthew was trying to climb in the driver side window and was swinging at appellant. Appellant picked something up from the console and threw it at Matthew. Matthew was still in the window trying to assault him, when appellant picked up his utility knife and swung it at him.
The Defense
Appellant testified in his own defense. On the evening of July 3, 2006, Ethridge called appellant and told him he had $35 he owed him for a cell phone and they arranged to meet. Around 9:30 p.m., Ethridge showed up at appellant’s shop. Appellant explained he was in the construction business and had a flooring license.
When Ethridge showed up, appellant suggested they go get something to eat. They stopped at a store to get a pack of cigarettes and then headed to Ethridge’s mother’s residence. Ethridge asked appellant to pull into Gee’s driveway, which was right across the street from his mother’s house, because he did not want to wake his mother up.
Ethridge and appellant went inside Gee’s residence. Ethridge introduced appellant to Gee. Appellant had never met him before. When they went inside Gee’s residence, he was lying on the couch watching television. Appellant and Ethridge sat on the couch across from Gee, talked a little, and then started watching television with Gee. Appellant estimated they arrived at Gee’s residence somewhere between 10:30 p.m. and 11:00 p.m.
During the time appellant and Ethridge were at Gee’s residence, Randall showed up. Appellant had never met Randall before. Randall walked in holding a beer and asked Gee if he had another beer. Gee told Randall they did not have any beer. Randall then asked, “What are you guys doing up here?” Appellant kept quiet because he knew Randall was drunk and he did not want to antagonize him. However, Randall and Ethridge “got a little uppity with each other” and Randall left.
After Randall left, appellant said he wanted to leave and started talking to Ethridge about leaving. As they were talking, the Clements brothers returned to Gee’s residence. Appellant heard a car pull up and then some conversation outside. The Clements brothers then came up to the door. It was a sliding glass door and appellant could see that the brothers had their shirts off.
Appellant told Ethridge they needed to leave. Appellant warned Ethridge not to say anything or to antagonize them because they were drunk. The Clements brothers started saying things directed at Ethridge. Gee stood up and told them they were drunk and needed to go home.
Appellant confirmed he had his knife with him, and that he kept both his knife and cell phone clipped to the outside of his pocket. When asked if he had been displaying the knife, appellant testified that Ethridge had asked him if it was a new knife, and appellant said that it was. Appellant explained he was always trying to find a better knife to cut vinyl with. Appellant denied that he reached down for the knife or put it in his hand as he was leaving Gee’s residence.
Gee managed to get the Clements brothers to get off the deck and go to bottom of the steps. Appellant and Ethridge then followed Gee out the door onto the deck. Appellant went down the steps and started walking toward his truck. While he was walking, he got hit in the back of the head and went down on his knees. He did not see who struck him. He tried to get up, when something hit him hard in the center of the back and knocked him flat on the ground. Then the Clements brothers started kicking and hitting him. Appellant got up and pushed the brother that was on top of him down the hill. Appellant denied that he said something about being older than his attacker. Appellant testified, “I just told him, ‘I’m going home, dude, just let me go. I’m out of here.’”
Appellant finally got to his truck and pulled himself up by the bumper. Someone threw a beer can and it landed on the hood of his truck. Appellant slapped the can off the truck. At that time, appellant was “constantly getting hit by rocks.” Appellant tried to get down the side of his truck to open the door. He was able to open it part way, when Matthew kicked it shut. Appellant claimed at that point he had not thrown any blows against either brother.
When appellant finally got the door open, he pulled his cell phone and knife off and threw them into the center console, so that he could gain access to his pocket to retrieve his car keys. Meanwhile, he got hit a couple times in the back. He then got inside the truck. While he was bending over to get his keys, Matthew pulled himself up by the mirror and was half way through the driver side window and was beating appellant on the back of the head. Then a rock came through the other window. Appellant first grabbed a coffee cup and threw it. He then grabbed his utility knife and swung it. At this time, Matthew was half way through the driver side window throwing punches at appellant and rocks were coming through the other window.
Appellant was not sure if he cut Matthew when he swung the knife, but Matthew did get out of the window. Matthew then jumped up and hit the driver side of the truck, and then went around to the other side. Another rock hit the windshield “caving it.” According to appellant, rocks were repeatedly thrown at the windshield until it finally caved in.
After swinging his knife, appellant was able to sit up, get the keys in the ignition, and start backing up the truck. As he was backing up, the Clements brothers were still attacking his truck. One jumped in the truck bed and tried to get in the back window. The other grabbed one of the mirrors, and was swinging back and forth, slamming it into the window, and trying to get it off. After the incident, there was a dent in one of the mirrors that had not been there before. Appellant explained that just two days before the incident, he put new mirrors on the car.
Appellant testified that he was alone when he was being attacked by the Clements brothers because Gee and Ethridge “ran off long ago.” Appellant picked Gee and Ethridge up on the main road. About a half a mile later, appellant pulled over. Appellant stopped because he could not see out the window and was hurting. There were shards of glass everywhere.
When he pulled over, appellant asked Ethridge for the bottle of water and was going to pour some on the window to clear it off. Appellant denied that he tried to wash off the knife. Rather, he just tossed the knife into the cup holder, which was always damp from things that had been sitting in it.
Appellant testified that when he first got out of the truck, there were some rocks on his floorboard and that he kicked them onto the ground outside the truck, and that he did not understand why there were not more rocks in evidence.
Prior to the incident, appellant had never met the Clements brothers in his life.
Appellant confirmed that he told Detective Pippin about his drug history and recent relapse, and that he was on a methadone treatment program at the time of the incident. However, appellant denied he used heroin or marijuana the day of the incident, and claimed Detective Pippin must have misunderstood him.
On cross-examination, appellant testified that, after he stopped his truck on the side of the road, he kicked three or four rocks out of his truck. The prosecutor asked, “How big were these rocks? Like, grapefruit sized?” Appellant responded, “Yeah, grapefruit sized.” Appellant then agreed they were about six inches.
Jacob Murray testified that in July 2006, he was over at the mobilehome park where Gee lived, staying with his mom for the week. On July 3, 2006, He saw Randall and Matthew in the area of the Gee residence throughout the day. Murray was drinking that night and was pretty drunk. He saw a little scuffle at Gee’s trailer but could not remember much else. He did not see who threw the first blow.
Murray acknowledged he spoke with the defense investigator but claimed he could not remember making many of the statements the investigator attributed to him. Murray testified that Mathew had become a friend of his, and that he had known him for about five or six months. However, he never said they were best friends.
Private investigator Jeremy Bell testified he interviewed Murray at the Tuolumne County Jail. Murray told Bell he was at Gee’s house on July 3, 2006. He was standing in front when Randall and Matthew showed up and Randall went to the front door. Everyone, including himself, was pretty intoxicated. Appellant was in the doorway. There was some arguing and Randall threw the first punch, hitting appellant. Murray told Bell that appellant was just trying to get outside to get his truck. There was some scuffling and Matthew joined Randall trying to beat up appellant. At one point, appellant threw Matthew down the hill.
Murray told Bell he knew the Clements brothers and that he and Matthew were best friends and always hung out. Murray said when the Clements brothers started drinking, “they would get belligerent and there was no telling what could happen.” Murray thought appellant was definitely trying to defend himself.
Ethridge’s mother, Gina Harp, testified that Ethridge was living with her at the same mobilehome park where the incident took place on July 3, 2006. Ethridge called her on the morning of July 4, 2006, around 6:00 a.m., and told her he was in jail. Ethridge said he saw the Clements boys that night, and that they were extremely intoxicated, aggressive, belligerent, and were looking for a fight. Ethridge told Harp he witnessed part of the fight. He saw appellant being hit with big rocks and a rock was thrown at the truck. Ethridge also saw appellant go down to the ground after being hit in the back of the neck with a big rock. He heard appellant’s truck start, and when appellant tried to put the truck in reverse, one of the Clements brothers jumped through the side window of the truck. Harp acknowledged she knew appellant through a 12-step fellowship program.
Rebuttal
Sheriff’s Corporal Kelly Dickson testified that when she first arrived where appellant parked his truck on the side of the road, appellant was already standing outside his vehicle. He had just shut the door and started walking around the front of the truck when she made contact with him. She was present until the tow truck arrived to remove appellant’s truck.
Corporal Dickson did not see any grapefruit-sized rocks in the immediate vicinity of the driver side door of the vehicle. She would haven noticed such rocks because she walked all the way around the truck. No one told her that anybody had been throwing a lot of rocks, or that they had just been kicked out of the vehicle.
On cross-examination, Corporal Dickson testified that she noticed appellant’s driver side mirror was covered with blood and had a dent in it.
Detective Pippin testified that, during his interviews with appellant, appellant never described being beaten to the point where he was on his stomach or being kicked repeatedly. Nor did he describe being able to buck one of the Clements brothers off so he went down the hill. Appellant did mention that one of the brothers threw a beer can at him. But he never mentioned that it hit the truck or that he slapped it away. Appellant told Detective Pippin that he got the knife from his pocket, not that it was clipped on his belt. Appellant never mentioned having a number of rocks inside his truck or needing to kick them out of the interior of his vehicle.
DISCUSSION
The trial court instructed the jury pursuant to CALCRIM No. 3471, as follows:
“A person who engages in mutual combat or who is the first one to use physical force has a right to self-defense only if: [¶] 1. He actually and in good faith tries to stop fighting; and [¶] 2. He indicates by word or by conduct to his opponent, in a way that a reasonable person would understand, that he wants to stop fighting and that he has stopped fighting; and [¶] 3. He gives his opponent a chance to stop fighting. [¶] If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight. [¶] If you decide that the defendant started the fight using non-deadly force and the opponent responded with such sudden and deadly force so 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.”
Appellant contends the trial court prejudicially erred in instructing the jury that one who engages in mutual combat cannot invoke the right to self-defense unless he first tries to stop fighting because there was no evidence appellant engaged in mutual combat within the meaning of the law of self-defense. Respondent concedes the evidence did not warrant instructing the jury with CALCRIM No. 3471, but asserts the instruction did not prejudice appellant because the trial court instructed the jury that some of the instructions might not apply, depending on the jury’s factual findings. Because the evidence did not show appellant was engaged in mutual combat with the victim, respondent suggests the jury likely focused instead on CALCRIM No. 3470, and the question of whether the level of force appellant used to defend himself was reasonable under the circumstances. According to respondent, the verdict indicates the jury resolved that question against appellant.
As a preliminary matter, it is unclear from the record whether CALCRIM No. 3471 was given on the trial court’s own motion or at the request of a party. During their discussion of jury instructions, the court and attorneys specifically discussed CALCRIM No 3470 (right to self-defense or defense of another) and CALCRIM No. 3472 (right to self-defense may not be contrived) but no mention was made of CALCRIM No. 3471. The prosecutor agreed to withdraw CALCRIM No. 3472 after the court noted, “I don’t know that I’ve heard evidence that the defendant provoked a fight .…”
The court subsequently instructed the jury with CALCRIM No. 3471, and the prosecutor argued appellant was not entitled to use self-defense because appellant was engaged in mutual combat. Appellant did not object to either the instruction or the prosecutor’s argument. Although we have not been called upon by the parties to determine whether the absence of an objection resulted in waiver of appellant’s challenge to CALCRIM No. 3471, we conclude that it did not. The general principle that trial error not objected to in the trial court is waived on appeal applies to instructional error, but only if the error did not affect the defendant’s substantial rights. (Pen. Code, § 1259; People v. Prieto (2003) 30 Cal.4th 226, 247.) The error affected appellant’s substantial rights only if it is reasonably probable that apellant would have obtained a more favorable outcome absent the error. (People v. Elsey (2000) 81 Cal.App.4th 948, 953, fn. 2; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) For the reasons that follow, there is a reasonable probability that appellant would have obtained a better outcome if the court had not instructed the jury with CALCRIM No. 3471. Therefore, his claim is not waived.
As noted above, appellant argues, respondent concedes, and we agree, it was error to instruct the jury with CALCRIM No. 3471, because there was insufficient evidence appellant was the first person to use physical force or was engaged in mutual combat. As the Sixth District Court of Appeal recently elucidated in People v. Ross (2007) 155 Cal.App.4th 1033 (Ross) (review den., Jan. 16, 2008), the phrase “mutual combat” has a legal meaning that differs from the everyday meaning of the phrase. In Ross, “[t]he trial court instructed the jury, over defense objection, that one charged with assault cannot successfully plead self-defense if engaged in ‘mutual combat’ with the alleged victim [pursuant to CALJIC No. 5.56].” (Ross, supra, 155 Cal.App.4th at p. 1033.) The trial court also “refused the jury’s request during deliberations for a legal definition of ‘mutual combat,’ telling jurors instead to rely on the ordinary meaning of those words.” (Ibid.) The Ross court concluded,
“This left the jury free to suppose that any exchange of blows disqualifies both participants from claiming a right of self-defense. In fact the doctrine applies only to a violent confrontation conducted pursuant to prearrangement, mutual consent, or an express or implied agreement to fight. Since the evidence here was insufficient to establish any such arrangement or agreement, and there was a substantial basis for the jury to find that defendant may have acted in self-defense when he struck the blow on which the verdict was based, we find it reasonably probable that a properly instructed jury would have returned a verdict more favorable to defendant. We therefore reverse the judgment.” (Ross, supra, 155 Cal.App.4th at p. 1036.)
We agree with the court’s reasoning and quote extensively from the Ross opinion to shed light on our conclusion that the doctrine of mutual combat was also inapplicable to the present case:
“Like many legal phrases, ‘mutual combat’ has a dangerously vivid quality. The danger lies in the power of vivid language to mask ambiguity and even inaccuracy. Here the jury was told that participation in ‘mutual combat’ conditionally bars the participants from pleading self-defense if either is prosecuted for assaulting the other. The ‘combat’ element of this rule is clear enough, at least for present purposes. It suggests two (or more) persons fighting .… The trouble arises from ‘mutual.’ When, for these purposes, is combat ‘mutual’? What distinguishes ‘mutual’ combat from combat in which one of the participants retains an unconditional right of self-defense?
“The trial court told the jury that the law furnishes no special answer to these questions, and that any answer must be found in the ‘common, everyday meaning of those words or that phrase.’ Respondent presses this view before us, asserting that ‘the phrase “mutual combat” has the common everyday meaning that the combatants want to fight ….’ But this is not true, and even if it were true it would only establish that the lay meaning of ‘mutual combat’ is too broad to convey the correct legal principle.
“The dictionary meaning of ‘mutual’ does not necessarily convey any particular intention on the part of persons whose conduct it is used to describe. It is defined as ‘directed by each toward the other,’ ‘shared in common,’ or ‘joint’ (Merriam-Webster's Collegiate Dict. (10th ed. 1999) p. 768), ‘[h]aving the same relationship to each other,’ ‘[d]irected and received in equal amount,’ or ‘reciprocal’ (American Heritage College Dict. (3d ed. 1997) p. 901). Thus any combat may be correctly described as ‘mutual’ so long as it is seen to possess a quality of reciprocity or exchange. In ordinary speech, then, ‘mutual combat’ might properly describe any violent struggle between two or more people, however it came into being. If A walks up to B and punches him without warning, and a fight ensues, the fight may be characterized as ‘mutual combat’ in the ordinary sense of those words. But as this example demonstrates, the phrase so understood may readily describe situations in which the law plainly grants one of the combatants a right of self-defense. In the case above, B would be entitled under the law of this state to punch A immediately, without further ado, provided he acted out of an actual and reasonable belief that such action was necessary to avert imminent harm [citations]. That right cannot be forfeited or suspended by its very exercise. Yet that is the effect of relying on the everyday meaning of ‘mutual combat.’ B’s entitlement to strike back in self-defense would then be conditioned, absurdly, on his first refusing to fight, communicating his peaceable intentions to his assailant, and giving his assailant an opportunity to desist. By then, of course, his assailant might have beaten him senseless.
“As used in the present context, the phrase ‘mutual combat’ is not only ambiguous but a misnomer. The mutuality triggering the doctrine inheres not in the combat but in the preexisting intent to engage in it. Old but intact case law confirms that as used in this state’s law of self-defense, ‘mutual combat’ means not merely a reciprocal exchange of blows but one pursuant to mutual intention, consent, or agreement preceding the initiation of hostilities. The lead case appears to be People v. Fowler (1918) 178 Cal. 657, 671 (Fowler), disapproved on another point in People v. Thomas (1945) 25 Cal.2d 880, 901, where the court wrote, ‘It has long been established that one who voluntarily engages in mutual combat with another must have endeavored to withdraw therefrom before he can be justified in killing his adversary to save his own life. … Both before and since [the 1872 enactment of Penal Code section 197] the phrase “mutual combat” has been in general use to designate the branch of the law of self-defense relating to homicides committed in the course of a duel or other fight begun or continued by mutual consent or agreement, express or implied. [Citations.]’ (Italics added.) In other words, it is not merely the combat, but the preexisting intention to engage in it, that must be mutual.
“This principle is supported by every decision we have found in which a pertinent point is considered. In People v. Hecker (1895) 109 Cal. 451, the court wrote that self-defense ‘is not available as a plea to one who[,] by prearranged duel, or by consent, has entered into a deadly mutual combat in which he slays his adversary.’ (Id. at p. 462, italics added.) In People v. Hatchett (1944) 63 Cal.App.2d 144, the evidence suggested that the defendant shot the victim, a former lover, either in cold blood or under threat of imminent assault. (Id. at pp. 148–149.) The Court of Appeal held that there was no evidence to support an instruction on mutual combat, i.e., ‘combat entered into voluntarily,’ as distinct from combat ‘under circumstances which did not compel her to retreat.’ (Id. at p. 163, italics added.)
“In People v. Rogers (1958) 164 Cal.App.2d 555, a dispute between two drivers escalated into a ‘general melee’ when the first driver, accompanied by a group of friends, attacked the second driver, and his friends, at the second driver’s home. (Id. at p. 557.) The defendant, a member of the defending group, was charged with fatally stabbing one of the attackers. (Ibid.) The jury was instructed on the duty to desist as a precondition to self-defense when ‘“two persons … by prearrangement, or otherwise by agreement, enter into and carry on a duel or deadly mutual combat.”’ (Id. at p. 558.) The reviewing court held this instruction ‘wholly outside the evidence’ because there was ‘no showing, directly or by inference, that defendant had any prearrangement to fight anybody, and certainly none connecting him in any such way with decedent.’ (Ibid., italics added.) The case did not present a situation where ‘two gangs agree to meet for combat. Rather, as the record now stands, [the defending driver] merely refused to flee his home in the face of [the invading driver’s] threat to return there. Even if [the former’s] words and deeds are imputable to defendant, they do not show an agreement or arrangement for mutual combat.’ (Ibid.) [¶] … [¶]
“We are satisfied that ‘mutual combat’ consists of fighting by mutual intention or consent, as most clearly reflected in an express or implied agreement to fight. The agreement need not have all the characteristics of a legally binding contract; indeed, it necessarily lacks at least one such characteristic: a lawful object. But there must be evidence from which the jury could reasonably find that both combatants actually consented or intended to fight before the claimed occasion for self-defense arose.” (Ross, supra, 155 Cal.App.4th at pp. 1043-1047, fns. omitted.)
Likewise, here, the evidence was insufficient to establish appellant and the Clements brothers arranged or agreed to fight before the brothers returned to Gee’s residence and initiated hostilities. At most, the evidence showed a desire or willingness to fight on appellant’s part, but, as the Ross court explained, merely “‘want[ing] to fight’ does not make it a case of mutual combat.” (Ross, supra, 155 Cal.App.4th at p. 1045, fn. 14.) Because the evidence undisputedly failed to satisfy the legal meaning of mutual combat, the instruction had no application and it was error to give it. (People v. Guiton (1993) 4 Cal.4th 1116, 1129 [“It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case”.]) Accordingly, we now turn to the question of whether the error in giving the instruction here requires reversal.
Error of the type presented here, i.e., giving a jury instruction which, while correctly stating the law, has no application to the case, “does not appear to be of federal constitutional dimension.” “The error is therefore one of state law subject to the traditional Watson test (People v. Watson (1956) 46 Cal.2d 818, 836) applicable to such error. [Citation.] Under Watson, reversal is required if it is reasonably probable the result would have been more favorable to the defendant had the error not occurred.” (People v. Guiton, supra, 4 Cal.4th at pp. 1129-1130.) “[S]uch an error is usually harmless, having little or no effect ‘other than to add to the bulk of the charge.’ [Citation.] There is ground for concern only when an abstract or irrelevant instruction creates a substantial risk of misleading the jury to the defendant’s prejudice.” (People v. Rollo (1977) 20 Cal.3d 109, 123.) “In determining whether there was prejudice, the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict. [Citation.]” (People v. Guiton, supra, 4 Cal.4th at p. 1130.)
In finding the Watson test applicable, we necessarily reject appellant’s suggestion that the appropriate test is harmless error under Chapman v. California (1967) 386 U.S. 18. In citing the Chapman test, appellant invokes the principle that erroneous instructions impinge on a defendant’s right to a jury trial. However, this principle does not apply here because, as discussed above, the challenged instruction was only erroneous because it was irrelevant to the facts of the case. It was a correct statement of law and is reviewable under the Watson test.
Given the entirety of the record, there is a substantial risk the jury construed the mutual combat instruction (CALCRIM No. 3471) to deprive appellant of the right to act in self-defense. The defense theory was that appellant was under simultaneous attack by both Clements brothers and was trying to escape, when he swung his utility knife in self-defense. During closing argument, the prosecutor repeatedly argued that appellant was not entitled to use self-defense because the prosecution evidence showed that appellant was engaged in mutual combat and appellant did not first try to withdraw from the fight before he cut Matthew with his knife. In this regard, the prosecutor made the following statements:
“Now, there is two stories about the fight. We’ll talk about that in a minute. I submit to you this was a mutual combat situation. These people – didn’t matter who started it. This isn’t a referendum about who started it. The fact of the matter is two people are fighting each other and blows are being struck on each side. That’s mutual combat. If you’re going to use self-defense with mutual combat, you’ve got to do some things before you do that. You’ve got to actually in good faith try to stop fighting.” (Italics added.)
“Now, the story that the defendant gives you about the fight – there is two versions here – I submit, ladies and gentlemen of the jury, is unsupported by the evidence. It’s unsupported by reason. It was mutual combat. If it’s mutual combat, the defendant did none of those things that he needs to do by law to avail him of self-defense. Even if he did, he used far too much force.” (Italics added.)
“It’s a reasonable interpretation of the evidence in this case that this was mutual combat. This man never withdrew. Is that when Matthew Clements was pushed down the hill by a guy who’s talking about all the problems he had with his shoulder, his back and everything else and then ran across the hill? Because he didn’t want to run up the hill. The one thing Matthew Clements knows about fighting; I’m not going to run straight up a hill. The guy’s got the advantage on him. That’s not withdrawing. The defendant is running alongside. The defendant – he chose to use lethal force; too much force. That takes it out of self-defense. Whether you like it or not, that’s what it is.” (Italics added.)
As can be seen, the prosecutor erroneously suggested that a mere exchange of blows was legally sufficient to establish mutual combat by stating, “The fact of the matter is two people are fighting each other and blows are being struck on each side. That’s mutual combat.” The prosecutor’s statement was not contradicted, and the correct legal meaning of “mutual combat” was not defined for the jury. In light of the instruction and the prosecutor’s argument, we find unconvincing respondent’s suggestion that the jury would have likely found the mutual combat instruction inapplicable to the facts before it, and focused instead on the general self-defense instruction and the question of whether the level of force appellant used in self-defense was excessive.
Appellant relied entirely on a theory of self-defense and introduced substantial evidence in support of that theory. The defense presented evidence that while appellant was sitting inside his truck, attempting to leave, the Clements brothers were simultaneously punching him and pelting him with rocks. Thus, there was a substantial basis for the jury to find that appellant might have acted in self-defense, and that his use of a knife (a deadly weapon) to repel a potentially lethal attack might have been reasonable under the circumstances. (See People v. Pinholster (1992) 1 Cal.4th 865, 966 [right of self-defense does not provide defendant with any justification or excuse for using deadly force to repel a nonlethal attack].) Although the prosecutor suggested appellant’s testimony was not credible, there was physical evidence which arguably corroborated his version of events, including his multiple abrasions and the large presence of blood inside his truck. This evidence might also have been viewed as contradicting the Clements brothers’ claims that only two rocks were thrown at appellant during the entire incident and that appellant was standing outside the truck when he turned around and struck Matthew with the knife.
Under the specific facts and circumstances of this case, we find it reasonably probable that the jury would have returned a verdict more favorable to appellant if it had not been erroneously instructed under CALCRIM No. 3471, on the limited right of a person who engages in mutual combat to exercise self-defense. There was a substantial risk the instruction and the prosecutor’s argument misled the jury to conclude that appellant was engaged in mutual combat simply because he exchanged blows with Matthew during the fight and therefore was not entitled to use self-defense. Because we conclude the trial court’s instruction constituted prejudicial error requiring reversal, we need not address the other issues raised by appellant.
DISPOSITION
The judgment is reversed.
WE CONCUR: WISEMAN, Acting P.J., DAWSON, J.