P. v. Lopez
Filed 11/19/13 P. v. Lopez CA2/6
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SIX
THE
PEOPLE,
Plaintiff and Respondent,
v.
EDUARDO
CERVANTES LOPEZ,
Defendant and Appellant.
2d Crim. No. B243343
(Super. Ct. No. 2010030236)
(Ventura
County)
Eduardo Cervantes Lopez
appeals his conviction by jury of assault
with a deadly weapon (Pen. Code, § 245, subd. (a)(1))
inflicted great bodily injury on the victim (§ 12022.7, subd. (a)) and
committed the assault for the benefit of or in association with a criminal
street gang (§ 186.22, subd. (b)).
Appellant admitted two prior prison term enhancements (§ 667.5, subd.
(b)) and was sentenced to eight years state
prison. Appellant contends that the
trial court erred in not giving a Hecker instruction (People v.
Hecker (1895) 109 Cal. 451) on
the use of deadly force to repel a sudden and perilous threat by an opponent in
a fist fight. We affirm.
Facts and Procedural History
On the afternoon of August 23, 2012, appellant confronted
Bobby Dominquez as he worked on a car outside an Oxnard
apartment. Appellant, an active member
of the El Rio Troublestreet gang, asked in an angry voice "Ey, where you
from?"
title="">[2] It was
a gang term likely to lead to violence.
Dominquez, a member of the Colonia Chiques
street gang, answered "What's it to you"
and resumed work. Appellant replied,
"I'm asking you a fucking question, dog . . . . Where you from?"
Rafael Gonzalez,
Dominguez's friend, watched as Dominguez argued with appellant. At some point, appellant said "Fuck
Colonia" and, taunting Gonzalez
and Dominguez, said "What? Are you both going to jump me?" Gonzalez stepped back and said "No,
it's one on one." Appellant said,
"Let's take it to the alley" and exchanged punches with
Dominquez.
Dominguez punched
appellant on the side of the head, causing appellant to fall down on one knee. Appellant drew a large kitchen knife from his
pocket, said "Big bad El Rio,"
and stabbed Dominguez twice in the chest and once in the abdomen.
Oxnard Police arrested
appellant minutes later. Appellant had
already changed his shoes, shirt and pants, and hid the knife. Officers searched appellant's bedroom and
found drug paraphernalia, a glass smoking pipe, a metal box and notebook with
the words "El Rio" printed on it, and a syringe commonly used to
inject heroin. A kitchen knife was
hidden under the couch cushion.
Rafael Gonzales told the
police that appellant provoked the fight when he challenged Dominguez and said,
"Fuck Colonia." Gonzalez did
not recall who threw the first punch but did see appellant stab Dominguez and
run. This was corroborated by the
neighbor, 14-year-old Cynthia G., who heard yelling and saw appellant stab
Dominguez. No one saw Dominguez with a
weapon.
At trial, appellant
claimed that Dominguez was the aggressor and took his shirt off and shouted
"Colonia Chiques." Appellant
was concerned because he was on Colonia Chiques gang turf and feared that
Dominguez and Gonazalez would "beat me till I am dead or lose
conscious[ness]." On
cross-examination, appellant admitted that Dominguez did not have a
weapon, that he did not know anything
about Dominguez or Gonzalez, and that it
was a one-on-one fight.
The prosecution argued
that mutual combat and self-defense were the only issues. Defense counsel told the jury that appellant
had the right to stand his ground and the prosecution has "to disprove
self-defense. It has been raised. It is before you." The trial court instructed on the
right to self-defense: mutual combat or initial aggressor (CALCRIM 3471), and
that self-defense cannot be contrived (CALCRIM 3472).
Hecker Instruction
Appellant contends
that the trial court erred in not instructing on the right to respond with
deadly force when faced with a sudden and perilous threat of force by an
opponent. (People v. Hecker, supra, 109
Cal. 451 (Hecker).) The trial court gave CALCRIM 3471 on self defense in
mutual combat
title="">[3] but denied appellant's request to instruct on
the bracketed part of the instruction which states: "[I]f 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
fighting or communicate the desire to stop to the opponent, or give the
opponent a chance to stop fighting." (Judicial Council of California, Criminal
Jury Instructions (2013) CALCRIM 3471, p. 963.)
The trial court refused
to give the Hecker instruction because there was no evidence that
Dominguez was armed or used deadly force.
It did not err. A defendant is
entitled to an instruction that pinpoints his theory of the defense, providing
the instruction is supported by substantial evidence. (People v. Johnson (2009) 180
Cal.App.4th 702, 707.) "Substantial
evidence is evidence sufficient to 'deserve consideration by the jury,' that is
evidence that a reasonable jury could find persuasive." (People v. Barton (1995) 12 Cal.4th
186, 201, fn. 8.)
Appellant claims that a
pugilist can lawfully use deadly force to repel a "sudden and
perilous"counterattack such as a blow to the head because "perilous"
is something less than "deadly." The argument fails because a Hecker
instruction requires that "the opponent respond with such sudden and
deadly force that the defendant could not withdraw from the
fight." That is the language of
CALCRIM 3471, which is consistent with Hecker: "Where one is the first wrongdoer, but
his unlawful act is not felonious, as a simple assault upon the person of
another, . . . and this unlawful act is met by a counter assault of a deadly
character, the right of self-defense to the first wrongdoer is not lost. . . [O]ne may always defend himself against a
criminal attempt to take his life. . .
. If, however, the counter assault be so
sudden and perilous that no opportunity be given to decline or to make known to
his adversary his willingness to decline the strife, if he cannot retreat with
safety, then as the greater wrong of the deadly assault is upon his opponent,
he would be justified in slaying, forthwith, in self-defense.
[Citations.]" (Hecker, supra, 109 Cal. at p. 464.)
Appellant asserts that
the court in Hecker must have used "perilous" more broadly
than "deadly" because the right to kill in self-defense arises when
one perceives an imminent danger of great bodily injury. (See In re Christian S. (1994) 7
Cal.4th 768, 773.) But that holds truly
only when one is "without fault."
(Hecker, supra, 109 Cal. at p. 462.) Self-defense "may not be invoked by a
defendant who, through his own wrongful conduct (e.g., the initiation of a
physical assault or the commission of a felony), has created circumstances
under which his adversary's attack or pursuit is legally justified.
[Citations.]" (In re Christian S., supra, 7
Cal.4th at p., 773, fn. 1.) When one is the initial aggressor, one must
withdraw before using lethal self-defense unless his attack is not felonious
and met by a counterassault of a deadly character "so sudden and
perilous" that withdrawal is impossible.
(Hecker, supra, 109 Cal. at p. 464.)
Appellant instigated the
fight and was knocked down with a punch to the head. The blow was sudden but did not involve a
weapon or deadly force. Appellant
quickly got to his feet, and stabbed Dominguez.
Rather than turn and run (i.e., withdraw from the fray), appellant
stabbed Dominguez two more times. Self-defense
may be resorted to in order to repel force, but not to inflict vengeance.
(Levenson & Riccardulli, Cal. Criminal Law, The Rutter Group (2012) § 4.27,
p. 4-39, fn. 2; People v. Trevino (1988) 200 Cal.App.3d 874, 879.)
Appellant
opines that the punch to the head was a "perilous" threat of force,
justifying the use of deadly force to repel more punches to the body. If that was the law, every person on the
losing end of a fist fight could use a knife or a firearm to overcome his
opponent. Hecker requires that
"the attack [be] so sudden and perilous that [defendant] cannot
withdraw." (People v. Sawyer (1967) 256 Cal.App.2d 66, 75, fn. 2.) The Hecker instruction is derived from
the principle that "[s]elf-defense is not available as a plea to a
defendant who has sought a quarrel with the design to force a deadly issue and
thus, through his fraud, contrivance, or fault, to create a real or apparent
necessity for [the assault]. [Citation.]
. . . [¶] It 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. " (People
v. Hecker, supra, 109 Cal.
at p. 462.)
That is the basis for
the CALCRIM 3472 instruction, to which appellant did not object. The jury was instructed that "[a] person
does not have the right to self-defense if he or she provokes a fight or
quarrel with the intent to create an excuse to use force." (See Fruglia
v. Sala (1936) 17 Cal.App.2d 738, 743.)
The trial court reasonably concluded that a Hecker instruction
was not supported by the evidence.
Appellant provoked the fight, agreed to fight Dominguez one-on-one, and
suddenly escalated to deadly force after he was knocked down. "[D]efendant was not, in the terms of Hecker,
'defending himself against a criminal attempt to take his life.' (Italics added.)
The entire situation was created by defendant." (People v. Hardin (2000) 85 Cal.App.4th 625, 634.)
Appellant
complains that the CALCRIM 3471 self-defense instruction is incomplete without
a Hecker pinpoint instruction.
But such an instructional error, if any, is subject to a harmless error
analysis. (Chapman v. State of
California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705,710]; People v. Quach (2004)
116 Cal.App.4th 294, 303.) The trier of
fact is not required to accept the defendant's bare assertion of fear of
imminent danger to life to great bodily injury.
(In re Christian S., supra, 7 Cal.4th at p. 783.) "[F]ear alone must have motivated the
defendant to act in self-defense."
(Levenson & Riccardulli, Cal. Criminal Law(Rutter 2012) § 4.27, p.
4-39.) "A bare fear is not enough;
'the circumstances must be sufficient to excite the fears of a reasonable
person and the party killing must have acted under the influence of such fears
alone.' [Citations.]" (People v. Trevino (1988) 200 Cal.App.3d.
874, 878-879.)
The jury found that
appellant carried out the stabbing for the benefit the El Rio Troublestreet
gang, with the specific intent to promote criminal conduct by gang members. The gang enhancement finding negates the
argument that fear alone motivated appellant to stab Dominguez three times.
The judgment is
affirmed.
NOT TO BE PUBLISHED.
YEGAN,
J.
We
concur:
GILBERT, P.J.
PERREN, J
James P. Cloninger, Judge
Superior Court County of Ventura
______________________________
Richard C. Gilman, under
appointment by the Court of Appeal, fo Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Steven D. Matthews and Linda C.
Johnson, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
.
name="_ftn1" title="">[1] All statutory references are to the Penal
Code.
name="_ftn2" title="">[2] Appellant was 36 years old and went by the
moniker Pleito which means "fight."
