Filed 1/26/18 P. v. Stremple CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, James A. Stotler, Judge. Affirmed.

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Introduction

During a fistfight, defendant Anthony Alfredo Stremple pulled out a knife and stabbed the victim multiple times in the chest and abdomen. On appeal, defendant challenges his conviction for attempted murder.

Defendant argues the trial court erred by instructing the jury with CALCRIM No. 3472, which provides that a person has no right to self-defense if he or she provokes a fight intending to create a reason to use excessive force. The trial court fully and correctly instructed the jury regarding self-defense and imperfect self-defense. The prosecutor did not argue self-defense was unavailable to defendant as a defense, and there was no evidence that the victim used sudden and deadly force against defendant during the fight. There was no instructional error.

Defendant also argues the trial court erred by refusing to allow defendant to present evidence of another fight in which the victim had been involved. Presentation of evidence of the other fight would have required a significant trial within the trial and would have been likely to confuse the jury; the other fight was remote in time and differed factually from the incident in this case; and defendant was not precluded from offering other evidence of the victim’s participation in “brawls.” Therefore, the exclusion of evidence of another fight was not error.

Finally, defendant argues there was insufficient evidence of an intent to kill to support the conviction for attempted murder. On the contrary, the nature of the victim’s injuries and defendant’s statements and actions during and after the fight amply supported the attempted murder conviction.

Therefore, we affirm.

Statement of Facts and Procedural History

On the evening of August 4, 2012, Max Ortega, Chris Rodriguez, Alvaro Rodriguez, and Robert Saucedo spent several hours drinking at various bars in downtown Fullerton.[1] Around 1:30 a.m. on August 5, the group walked back to the parking structure where Ortega’s car was parked. As they were walking up a ramp in the parking structure, a car sped by and almost hit Ortega. Ortega yelled “What the fuck,” and the car stopped.

A large, heavyset bald man got out of the front passenger seat, ran toward Ortega with his fists up and yelled, “What did you say, homie,” or “What the fuck did you say?” He picked up Ortega, slammed him up against Ortega’s car, and began to hit him in the back of the head. He punched Ortega twice in the face or head and Ortega fell to the ground, became dazed, and may have passed out.

Two other men, one of whom was defendant, got out of the back of the car. After the heavyset bald man hit Ortega, he turned toward Chris with his fists raised. Alvaro ran past Chris and began fighting with the heavyset man.

As Alvaro and the heavyset bald man began fighting, defendant grabbed Alvaro, but Chris put his hands around defendant’s waist and pulled him off Alvaro. Defendant immediately started hitting Chris in the face. Chris swung back and hit defendant in the face. Chris and defendant punched each other multiple times.

Chris and defendant fell to the ground, with Chris landing on top of defendant. Chris attempted to get up by planting his hands on the ground and pushing himself up. Chris could feel defendant punching him in the stomach and chest area. Chris then felt a “hot, fast, stinging pain” and realized that he was being stabbed, not punched.

Once they were on the ground, Chris did not hit defendant. Chris did not make any threats to defendant or display any weapons. Defendant never indicated by his speech or conduct that he wanted to stop fighting.

After Chris realized that he had been stabbed, he struggled to his feet. Defendant also stood up, stared at Chris, and yelled, “Come on,” which Chris understood to mean that defendant wanted to continue fighting, but Chris could not respond. Defendant slowly backed up and continued to shout and yell things like “mother fucker.”

Alvaro heard defendant say, “I stabbed that fool.” Defendant and the others got into their car and left. They were yelling and cursing as they left. No one in Chris’s group displayed any weapons, made any verbal threats, or made any threatening motions during the incident.

Chris was covered in blood and his intestines were oozing out of a gash in his stomach. Paramedics responding to a 911 call treated Chris on the scene and transported him to a nearby hospital.

Chris sustained multiple stab wounds. There was a puncture wound on Chris’s chest, five or six inches from his heart, and a 12-inch horizontal laceration across his chest. Chris’s intestines were coming out of a puncture wound on this stomach. His right knee had a four-inch laceration.

Chris woke up in the hospital after he had surgery. He had multiple staples on his back, chest, stomach, and in his inner thigh. He was released from the hospital two days after his surgery and returned to his home in Ridgecrest. However, within 24 hours of his release, his stomach wound became infected. Chris presented at the hospital in Ridgecrest and was airlifted back to the hospital in Orange County. His staples were removed and the wound was cleaned out. Because his wound was too large to close with staples or stitches, he underwent a “wet-to-dry treatment” for four or five months. During this time, he was in bed for 20 hours out of the day and lost his job. He was unable to continue attending school.

Chris and Alvaro identified defendant as the stabber, and also identified one of the other men who fought them from a photographic lineup. A security guard at the bar where both Chris’s group of friends and defendant’s group of friends had been drinking that evening identified defendant from a video surveillance tape and from a photographic lineup as the individual who had appeared to be carrying a knife on the evening in question.

In defense, defendant’s employer was called as a character witness. Defendant’s employer described him as a “great employee,” a “good learner,” and someone who was fun to be around and who had a good attitude. The employer knew defendant as someone who was peaceful and nonviolent.

Defendant also attempted to offer evidence that Chris, not defendant, was the aggressor in the fight. Saucedo testified he told a police officer that he saw Chris “kicking this guy’s ass,” that Chris had defendant on the ground, and that he saw blood on defendant’s face. But Saucedo did not see how the men got on the ground or what they were doing to each other on the ground. Saucedo did not know how the man got blood on his face and did not see whether the man had been injured. Immediately after the incident, Saucedo had told another officer, “[a]nd we fucking rushed them. We got into a fight. They—pretty much they got—they g[o]t . . . their asses kicked. We beat them up.”

Detective Wren interviewed Chris, who said that after being stabbed, he backed away and defendant looked at him “with his eyes wide open.” Chris agreed with Wren that the fight was a “mutual fight with fists.” It was Wren’s impression based on Chris’s statements that Chris had previously been in a few fights.

Defendant was charged with attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)) and assault with a deadly weapon (id., § 245, subd. (a)(1)). A dangerous and deadly weapon enhancement was alleged as to the attempted murder count (id., § 12022, subd. (b)(1)), and a great bodily injury enhancement was alleged as to the assault count (id., § 12022.7, subd. (a)).

A jury found defendant guilty of both counts, and found the deadly weapon and great bodily injury enhancements true.[2] The trial court sentenced defendant to state prison for a term of eight years.[3]

Discussion

I.

CALCRIM No. 3472

Defendant argues CALCRIM No. 3472 precluded the jury from considering defendant’s claim of lawful self-defense.

A trial court is required to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not a defendant makes a formal request for such instructions. (People v. Blair (2005) 36 Cal.4th 686, 744.) When reviewing a claim of instructional error, we “assess the instructions as a whole, viewing the challenged instruction in context with other instructions, in order to determine if there was a reasonable likelihood the jury applied the challenged instruction in an impermissible manner.” (People v. Wilson (2008) 44 Cal.4th 758, 803; see People v. Posey (2004) 32 Cal.4th 193, 218.)

The trial court instructed the jury regarding self-defense and imperfect self‑defense with CALCRIM Nos. 604 (Attempted Voluntary Manslaughter: Imperfect Self-Defense - Lesser Included Offense); 3470 (Right to Self-Defense or Defense of Another (Non-Homicide)); 3471 (Right to Self-Defense: Mutual Combat or Initial Aggressor); 3472 (Right to Self-Defense: May Not Be Contrived); and 3474 (Danger No Longer Exists or Attacker Disabled).

In CALCRIM No. 3471, the jury was instructed as follows: “A person who engages in mutual combat or who starts a fight has a right to self-defense only if: [¶] 1. He actually and in good faith tried to stop fighting; and [¶] 2. He indicated by word or by conduct to his opponent in a way that a reasonable person would understand that he wanted to stop fighting and that he had stopped fighting; and [¶] 3. He gave his opponent a chance to stop fighting. [¶] If the defendant meets these requirements, he then had a right to self-defense if the opponent continued to fight. However, if the defendant used only 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 a right to defend himself 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. [¶] 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.”

In CALCRIM No. 3472, the jury was instructed: “A person does not have the right of self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force.”

Defendant’s argument relies on People v. Ramirez (2015) 233 Cal.App.4th 940, 943 (Ramirez), in which a majority of the appellate court concluded that under the facts of that case, the trial court had erred in instructing the jury with CALCRIM No. 3472: “Defendants contend the trial court erroneously prevented the jury from considering their self-defense claim by instructing the jury categorically that ‘[a] person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force.’ (CALCRIM No. 3472.) The prosecutor argued repeatedly based on the plain terms of this instruction that even if the jury believed defendants sought to provoke only a fistfight, their bare intent ‘to use force’ as stated in the instruction—even nondeadly fisticuffs—meant they forfeited a claim of imperfect self‑defense. We hold the instruction misstated the law. A person who contrives to start a fistfight or provoke a nondeadly quarrel does not thereby ‘forfeit[] . . . his right to live.’ [Citation.] Instead, he may defend himself ‘even when the defendant set in motion the chain of events that led the victim to attack the defendant.’”

The defendants in Ramirez were members of a criminal street gang. (Ramirez, supra, at p. 944.) They decided to confront members of another criminal street gang, who had been driving by defendant Armando Ramirez’s house, flashing gang signs and guns, and shooting at the house. (Ibid.) Ramirez brought a gun with him, although he said he did not intend to shoot anyone. (Ibid.) The defendants and another gang member confronted seven or eight members of the other gang, and a fistfight broke out after the defendants issued a gang challenge. (Ibid.) The victim, a member of the rival gang, approached the group that was fighting; Ramirez testified it looked like the victim had a gun in his hand. (Id. at p. 945.) Ramirez shot the victim; no guns were found on the victim or any of the rival gang members. (Ibid.)

The prosecutor in the Ramirez case highlighted CALCRIM No. 3472 during closing argument and repeatedly argued that a person does not have any right to self-defense if he or she provokes a fight with the intent to create an excuse to use any force. (Ramirez, supra, 233 Cal.App.4th at pp. 946-947.) The prosecutor argued, “‘it doesn’t matter [if there was a gun in the victim’s hand]. Because [CALCRIM No.] 3472 says a person does not have the right to self-defense if he provokes a fight or a quarrel with the intent to create an excuse to use force.’” (Id. at p. 946.)

The appellate court held that under those facts, it was error to instruct the jury with CALCRIM No. 3472. “Here, defendants argue the trial court’s instruction on contrived self-defense erroneously directed the jury to conclude a person has no right of self-defense against an adversary’s deadly attack, even if the defendant contrived to provoke a confrontation to use only nondeadly force against the adversary. . . . The instruction made no allowance for an intent to use only nondeadly force and an adversary’s sudden escalation to deadly violence.” (Ramirez, supra, 233 Cal.App.4th at p. 945.) The Ramirez court concluded that “n effect, the prosecutor and the trial court advised the jury that one who provokes a fistfight forfeits the right to self-defense if the adversary resorts to deadly force. The adversary simply may stab or shoot a person who contrives what he thought would be a shoving match or fisticuffs.” ([i]Id. at p. 947.)

The Ramirez court noted, however, that CALCRIM No. 3472 contained a correct statement of the law and should be used in an appropriate case. “True, CALCRIM No. 3472 states a correct rule of law in appropriate circumstances. Thus, a victim may respond to an attacker’s initial physical assault with a physical counterassault, and an attacker who provoked the fight may not in asserting he was injured in the fray claim self-defense against the victim’s lawful resistance.” (Ramirez, supra, 233 Cal.App.4th at p. 947; see People v. Eulian (2016) 247 Cal.App.4th 1324, 1334 [CALCRIM No. 3472 “is generally a correct statement of law, which might require modification in the rare case in which a defendant intended to provoke only a nondeadly confrontation and the victim responds with deadly force”].)

The present case differs from Ramirez in three key ways, making the use of CALCRIM No. 3472 proper here. First, in this case there was no evidence that Chris resorted to sudden deadly force or that defendant mistakenly believed he had. No testimony or other evidence supported defense counsel’s argument that Chris resorted to sudden deadly force by repeatedly pounding defendant’s head while it was inches from the pavement and while defendant was dizzy or dazed. This is not a “rare case” where the evidence supports the theory that a defendant intended to provoke a nondeadly confrontation, but the victim responded with deadly force.

Second, unlike Ramirez, the prosecutor in this case did not argue that self‑defense or imperfect self-defense would be unavailable if defendant instigated the fight, but Chris escalated the situation by using deadly force. (See People v. Williams (2013) 56 Cal.4th 630, 688-689 [there was no reasonable likelihood the jury incorrectly construed an ambiguous instruction in light of counsel’s closing arguments]; People v. Kelly (1992) 1 Cal.4th 495, 526 [jury was unlikely to misunderstand the law regarding felony-murder or special circumstances when counsel’s arguments correctly explained the relevant law].) The prosecutor in this case argued to the jury that, even if defendant was the initial aggressor, if defendant had used only nondeadly force, and Chris had responded with such sudden and deadly force that defendant could not withdraw from the fight, then defendant would have had a right to defend himself with deadly force. The prosecutor further argued, however, that there was no evidence Chris had used deadly force against defendant.

Third and finally, the other jury instructions in this case accurately reflected the law of self-defense and imperfect self-defense. CALCRIM No. 3471 correctly stated the principle that “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 with deadly force and was not required to try to stop the fighting or communicate the desire to stop to the opponent, or give the opponent a chance to stop fighting.”

CALCRIM No. 604 accurately instructed the jury: “An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill a person because he acted in imperfect self-defense or defense of another.” That same instruction also provided: “If you conclude the defendant acted in complete self-defense or defense of another, his action was lawful and you must find him not guilty of any crime.” CALCRIM No. 3470 instructed: “Self-defense is a defense to attempted murder, assault with a deadly weapon or instrument, and the lesser included offense in Count 1 of attempted voluntary manslaughter. The defendant is not guilty of those crimes if he used force against the other person in lawful self-defense or defense of another.”

In light of the evidence in this case, the prosecutor’s argument regarding self-defense, and the full set of jury instructions, there was no instructional error.

II.

Character Evidence of Victim

Defendant contends that the trial court erred by excluding evidence of Chris’s act of violence, occurring after this incident, in order to prove his aggressive and violent character and moral turpitude. (As did the parties, we will refer to the later act of violence as the Ridgecrest incident.) We review a trial court’s ruling on the admissibility of evidence for abuse of discretion. (People v. Cowan (2010) 50 Cal.4th 401, 482; People v. Heard (2003) 31 Cal.4th 946, 972, 975.)

According to a police report, in June 2014 Chris and several of his friends were at the Ridgecrest home of Chris’s friend, Sharef Odeh. Odeh offered a shot of alcohol to one of the men in the group, but he declined. Odeh insisted the man take a shot, and Chris told Odeh to drop the conversation. Odeh took off his shirt and said to Chris, “if you want to go, let’s go.”

Although Chris tried to talk Odeh out of fighting, Odeh insisted. Chris went into the street “to engage in mutual combat” with Odeh because he “felt like he could not get out of this situation.” Odeh threw the first punch, which glanced off Chris’s neck and shoulder. Chris threw a punch at Odeh but missed. The two men fell to the ground.

Initially, Odeh was on top of Chris, until Chris punched Odeh in the face and was able to get on top of Odeh. Odeh grabbed Chris around the neck and face. Chris then struck Odeh in the face with his right elbow. Odeh made a sound like a “snore,” and the fight ended. Someone called for medical assistance, and Chris remained at the scene until the police arrived.

At the hearing on pretrial motions, defendant’s counsel made an offer of proof that Odeh suffered a fractured nose, a collapsed lung, a concussion, multiple bruises and swelling to his eyes, nose, and head, and bruising to his chest area. He had to be placed on a ventilator and was hospitalized for almost three weeks. He remained at a rehabilitation hospital for a few weeks after being released from the hospital and at the time of the preliminary hearing still suffered from short-term memory loss and other impairments.

Two days after the Ridgecrest incident, Chris told a detective he and his friends had taken a taxi to Odeh’s house on the day of the Ridgecrest incident. Chris later admitted he had actually driven to Odeh’s house while he was drunk.

Chris was charged with one felony count of battery with serious bodily injury (Pen. Code, § 243, subd. (d)), but the charges were subsequently dismissed.

The People moved in limine in the present case to exclude evidence of the Ridgecrest incident under Evidence Code section 352. The prosecutor argued that such evidence had little or no probative value because it showed that Chris was involved in a single mutual combat situation, not that he had a proclivity toward violence. The prosecutor also argued that admitting evidence of the Ridgecrest incident would involve an undue consumption of time and would confuse the issues because there had been no finding of wrongdoing on Chris’s part in the Ridgecrest incident, and there would have to be a trial within a trial involving multiple witnesses.

Defendant’s counsel filed a motion to admit evidence of the Ridgecrest incident as impeachment evidence as well as character evidence under Evidence Code section 1103.[4] Defendant’s counsel argued that evidence of the Ridgecrest incident was admissible because (1) Chris’s actions against Odeh amounted to an assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)), and therefore constituted a crime of moral turpitude for impeachment purposes; and (2) the evidence pertained to Chris’s character for violence.

After briefing and a hearing, the trial court excluded the evidence because (1) the facts regarding the two incidents differed significantly; (2) the Ridgecrest incident was remote in time vis-à-vis the incident in the present case; (3) admission of the Ridgecrest incident would require a “major collateral trial”; (4) admission of the Ridgecrest incident was likely to confuse and mislead the jury; and (5) the defense would still be able to admit evidence that Chris had been in other “brawls.”

The trial court did not abuse its discretion in excluding the evidence of the Ridgecrest incident. Presentation of evidence regarding the Ridgecrest incident would unquestionably have taken significant time. Counsel for both parties indicated they would need to call several witnesses to testify regarding the Ridgecrest incident, including Chris, Alvaro, the doctor who treated Odeh, at least one of the investigating officers, Odeh, and Odeh’s wife. In addition to the evidence, the trial court in the present case might have been required to instruct the jury regarding the charges in the Ridgecrest incident.

The two incidents were not sufficiently similar. In the Ridgecrest incident, Chris voluntarily accepted a challenge to participate in mutual combat with someone he knew. In the incident here, Chris became involved in a fistfight started without provocation by defendant and those with him while trying to pull defendant off a friend. The only similarity between the incidents was that Chris was not the initial aggressor in either—a fact that does not necessarily assist the defense.

We note that defendant claims the Ridgecrest incident could show Chris’s moral turpitude because his actions violated Penal Code section 245, subdivision (a)(4), assault by means of force likely to produce great bodily injury. However, Chris was only charged with violating Penal Code section 243, subdivision (d), felony battery with serious bodily injury, and even that charge was dismissed.

The probative value of the evidence was low, and the risk of prejudice was high. The presentation of evidence regarding the Ridgecrest incident would have caused an undue consumption of time and confused the jury. Defendant was able to offer evidence that Chris had been involved in other “brawls.” Defendant did not suffer undue prejudice as a result of the exclusion of the evidence. The trial court did not err in excluding evidence of the Ridgecrest incident.

III.

Substantial Evidence of Attempted Murder

Defendant also argues his conviction for attempted murder must be reversed because there was not sufficient evidence of a specific intent to kill. To determine if sufficient evidence supports a conviction, we review the record as a whole in the light most favorable to the judgment to determine whether it contains substantial evidence from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Streeter (2012) 54 Cal.4th 205, 241.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (See, e.g., People v. Jones (1990) 51 Cal.3d 294, 314; People v. Poulsom (2013) 213 Cal.App.4th 501, 518.) All conflicts in the evidence and all reasonable inferences must be resolved in favor of the judgment. (People v. Williams (2013) 58 Cal.4th 197, 299; People v. Maury (2003) 30 Cal.4th 342, 396.)

A conviction for attempted murder requires proof of a specific intent to kill, and the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Ervine (2009) 47 Cal.4th 745, 785.) Intent to kill is shown if the defendant either desires the death of the victim, or knows to a substantial certainty that the death will occur as a result of the defendant’s action. (People v. Smith (2005) 37 Cal.4th 733, 739.) “There is rarely direct evidence of a defendant’s intent. Such intent must usually be derived from all the circumstances of the attempt, including the defendant’s actions.” (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.)

Viewing the evidence in the light most favorable to the judgment, the stabbing occurred as Chris was trying to push himself off the ground; he was not then hitting defendant, and was unable to protect his chest and abdomen.

The stab wounds Chris suffered were numerous and serious, from which a reasonable jury could infer defendant intended to kill Chris, rather than simply to defend himself. One puncture wound was in Chris’s chest. A laceration stretched 12 inches across Chris’s chest, and was deep enough that fat protruded from it. Chris’s intestines were oozing out of the wound to his abdomen. This wound was so large it could not be treated with regular methods and required several months to heal properly.

After defendant stabbed Chris, his words indicated he wanted to continue fighting, and that the stabbing had been an intentional act on his part.

It can be reasonably inferred from the violence of the attack and the near fatal nature of the wounds inflicted on Chris that defendant had a specific intent to kill Chris. There was substantial evidence supporting the jury’s guilty verdict on the attempted murder charge. There has been no violation of defendant’s state and federal constitutional right to due process, and there is no basis for reversing the conviction.

Disposition

The judgment is affirmed.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.