Filed 7/26/17 P. v. Medivil CA3
NOT TO BE PUBLISHED



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE,

Plaintiff and Respondent,

v.

JOHNATHAN ISAAC MENDIVIL,

Defendant and Appellant.
C077832

(Super. Ct. No. 11F00055)







A jury found defendant Johnathan Issac Mendivil guilty of second degree murder (Pen. Code, §§ 187, subd. (a), 189) and misdemeanor child endangerment (§ 273a, subd. (b)). The jury also found true the allegation that defendant personally and intentionally discharged a firearm during the commission of the murder. (§ 12022.53, subd. (d).) The trial court sentenced defendant to an aggregate term of 40 years to life in prison.
On appeal, defendant contends the trial court prejudicially erred by instructing the jury with CALCRIM No. 3472 (one may not invoke self-defense if he provoked a fight or quarrel as an excuse to use force) because the instruction prevented the jury from considering the defenses of perfect and imperfect defense of another. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In light of the limited issue raised on appeal, we need not provide a detailed recitation of the underlying facts. Instead, we recite only those facts relevant to the resolution of this appeal.
A. Factual Background
In December 2010, defendant worked as a cashier at the Walgreens on Florin Road and 24th Street in Sacramento. Around 10:20 p.m. on December 18, 2010, 15-year-old E.C. and a group of his friends and family members entered the store. Two of these individuals started acting “goofy”; they threw some things around the store and “play[ed] foolish games.” After defendant gave “mean looks” and exchanged some words with one of the individuals and was called a “bitch,” a fistfight broke out between defendant and three members of the group, including E.C. During the fight, defendant was punched numerous times. E.C. screamed and yelled at defendant and punched him “many times.” After the fight, defendant was taken to the hospital and received staples in his head.
Defendant’s girlfriend took a picture of his injuries and defendant’s brother Jeremy Mendivil received the photo in a text message. Defendant and Jeremy were upset about the fight, and Jeremy decided to help his brother get “payback.” Jeremy told his brother that if they ever saw the people who “jumped him,” they were going to “jump them back and show them how it feels.”
At trial, Jeremy testified as a witness for the prosecution. He explained that he and his brother drove to 29th Street in Sacramento on December 31, 2010, around 9:00 p.m. Jeremy admitted they went to this location to look for one of the individuals who had “jumped” his brother, and he was thinking it was “payback time” if he saw him. Jeremy explained he thought they were going to “fight one of the dudes.”
As Jeremy and his brother were driving on 29th Street, they saw E.C. Jeremy got out of the car and confronted E.C., who was “a lot taller” and a “little thicker” than him. The two exchanged words and then started punching each other. Shortly after the fight started, Jeremy tackled E.C., got on top of him, and began punching him in the face. At that point, E.C. stopped punching and was using his hands to protect himself.
While Jeremy was on top of E.C., defendant approached with a 12-gauge shotgun and told Jeremy to “step back” and/or “ ‘[g]et out of the way.’ ” When Jeremy moved away from E.C., defendant shot E.C. in the leg. Defendant quickly fired a second shot at E.C.’s head. After the “two rapid gunshots,” Jeremy and his brother got into their car and drove off. Within minutes of the shooting, E.C. died.
Immediately following the shooting, defendant drove to the Sacramento River and disposed of the shotgun and his pants. When police officers located defendant the next morning, they observed him get into his car and drive away with a female and a child. As the officers followed him, defendant increased his speed and attempted to elude them; he drove on a sidewalk, ran a stop sign, and hit a SWAT vehicle before finally coming to a stop.
B. Procedural Background
Defendant was charged by amended information with first degree murder (§ 187, subd. (a)) and felony child endangerment (§ 273a, subd. (a).) It was also alleged that defendant personally and intentionally discharged a firearm during the commission of the murder. (§ 12022.53, subd. (d).)
After a jury trial, defendant was found guilty of second degree murder (§§ 187, subd. (a), 189) and misdemeanor child endangerment (§ 273a, subd. (b)). The jury also found true the allegation he personally and intentionally discharged a firearm during the commission of the murder. (§ 12022.53, subd. (d).) The trial court sentenced defendant to an aggregate term of 40 years to life in prison.
Defendant filed a timely notice of appeal.
DISCUSSION
A. Standard of Review
It is well established in criminal cases, even in the absence of a request, the trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) The court has a duty to deliver instructions providing a complete and accurate statement of the law. (People v. Fiu (2008) 165 Cal.App.4th 360, 370.) “ ‘[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’ [Citation.]” (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220, overruled on another ground by People v. Rangel (2016) 62 Cal.4th 1192, 1216.) We independently review whether jury instructions correctly state the law. (People v. Posey (2004) 32 Cal.4th 193, 218.)
B. Defense of an Initial Aggressor
A killing committed in so-called perfect self-defense is neither murder nor manslaughter, but instead is justifiable homicide. (People v. Randle (2005) 35 Cal.4th 987, 994 (Randle), overruled on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1201.) “For perfect self-defense, one must actually and reasonably believe in the necessity of defending oneself [or someone else] from imminent danger of death or great bodily injury. [Citation.]” (Randle, supra, at p. 994, italics omitted; see CALCRIM No. 505.) The danger must be imminent; mere fear that it will become imminent is not enough. (People v. Battle (2011) 198 Cal.App.4th 50, 72.) “All the surrounding circumstances, including prior assaults and threats, may be considered in determining whether the accused perceived an imminent threat of death or great bodily injury. [Citations.]” (Ibid.)
Imperfect defense of another has been recognized by the California Supreme Court to negate malice and reduce murder to voluntary manslaughter. An actual but unreasonable belief in the need to defend another person from immediate harm is required. “One who kills in imperfect self-defense—in the actual but unreasonable belief he must defend himself from imminent death or great bodily injury—is guilty of manslaughter, not murder, because he lacks the malice required for murder. [Citations.] For the same reason, one who kills in imperfect defense of others—in the actual but unreasonable belief he must defend another from imminent danger of death or great bodily injury—is guilty only of manslaughter.” (Randle, supra, 35 Cal.4th at pp. 996-997, original italics; see CALCRIM No. 571.)
For more than a century, it has been “the rule that, ‘Where the original aggressor is not guilty of a deadly attack, but of a simple assault or trespass, the victim has no right to use deadly or other excessive force. . . . If the victim uses such force, the aggressor’s right of self-defense arises. . . .’ [Citation], or its corollary, ‘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.’ [Citation.]” (People v. Quach (2004) 116 Cal.App.4th 294, 301-302.) When warranted by the evidence, it is “reversible error to instruct on mutual combat without further instructing on the right of a mutual combatant to reclaim the privilege of self-defense when subjected to an attack ‘ “so sudden and perilous that he cannot withdraw. . . .” ’ [Citation.]” (People v. Ross (2007) 155 Cal.App.4th 1033, 1046, original italics.)
The prosecutor’s theory in this case was first degree murder. He argued that the killing was the result of a cold-blooded plan to kill E.C., not some chance meeting that led to a fistfight and defense of another. The defendant’s theory was defense of another. Defense counsel argued that defendant acted in perfect defense of Jeremy or was guilty of the lesser included offense of voluntary manslaughter based on a theory of imperfect defense of Jeremy. The trial court instructed the jury on perfect defense of another pursuant to CALCRIM No. 505 and imperfect defense of another pursuant to CALCRIM No. 571. Over defendant’s objection, the trial court also instructed the jury with CALCRIM No. 3472 as follows: “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.”
Defendant contends the trial court prejudicially erred in instructing the jury with CALCRIM No. 3472 because the instruction prevented the jury from considering the defenses of perfect and imperfect defense of another. In other words, defendant argues that CALCRIM No. 3472 erroneously foreclosed any claim of defense of another. In so arguing, defendant relies on the majority decision in People v. Ramirez (2015) 233 Cal.App.4th 940 (Ramirez).
Testimony at trial in Ramirez established two codefendant gang members instigated a fistfight with rival gang members. (Ramirez, supra, 233 Cal.App.4th at p. 944.) One of the codefendants testified that when he saw a rival gang member draw an object that appeared to be a gun, he pulled out his own gun and shot the rival gang member. (Id. at p. 945.) During closing argument the prosecutor repeatedly misstated the law on self-defense by arguing, based on the language of CALCRIM No. 3472, that even if the defendants sought only to engage in a fistfight, their intent to provoke any kind of fight foreclosed any claim of self-defense. (Id. at pp. 943, 946-949.) The trial court instructed the jury with CALCRIM No. 3472. (Ramirez, supra, at p. 945.) The codefendants were convicted of first degree murder. (Id. at p. 943.) On appeal, they argued that CALCRIM No. 3472 erroneously precluded the jury from finding they acted in justifiable self-defense. (Ramirez, supra, at p. 943.)
The majority in Ramirez reversed, explaining that the “blanket rule” articulated in CALCRIM No. 3472 did not accurately state governing law “under the facts before the jury.” (Ramirez, supra, 233 Cal.App.4th at p. 947, italics added.) Compounding the error, “the prosecutor’s argument erroneously required the jury to conclude that in contriving to use force, even to provoke only a fistfight, defendants entirely forfeited any right to self-defense.” (Id. at p. 953.) Moreover, on motion of the prosecution, the trial court modified CALCRIM No. 571 to prevent the jury from relying on imperfect self-defense. (Ramirez, supra, at p. 952.) The problematic modification of CALCRIM No. 571 “told the jury: ‘The principle of imperfect self-defense may not be invoked by a defendant who, through his own wrongful conduct (e.g., the invitation of a physical assault or the commission of a felony) has created circumstances under which his adversary’s attack or pursuit is legally justified.’ ” (Ramirez, supra, at p. 952, italics added.) “The instructions and the prosecutor’s argument established as a matter of law that defendants were not entitled to imperfect self-defense if they contrived to use any force, even nondeadly force, but that was a question for the jury to decide on its own evaluation of the facts. [Citations.]” (Id. at p. 953, italics omitted.)
We reject defendant’s reliance on Ramirez. We begin by noting the Ramirez court acknowledged that CALCRIM No. 3472 “states a correct rule of law in appropriate circumstances.” (Ramirez, supra, 233 Cal.App.4th at p. 947.) Moreover, as the dissent in Ramirez noted, “By its express language, CALCRIM No. 3472 does not apply to every person who initiates a fight and subsequently claims self-defense. Instead, it applies to a subset of individuals who not only instigate a fight, but do so with the specific intent that they contrive the necessity for their acting thereafter in ‘self-defense,’ and thus justify their further violent actions. In other words, this instruction applies, and the right to self-defense is lost, only if an initial aggressor commences combat for the intended purpose of provoking a violent reaction so that he or she can then retaliate with further violence, whether deadly force or nondeadly force, under the guise of self-defense. The defendant’s intent is measured at the time the fight or quarrel is provoked.” (Id. at p. 954 (dis. opn. of Fybel, J.).)
Ramirez is inapplicable because the defendants in Ramirez provoked a fistfight with the intent to use only nondeadly force, and the rival gang adversary responded with deadly force by pulling out a gun. (Ramirez, supra, 233 Cal.App.4th at pp. 944-945.) Here, by contrast, Jeremy initiated a fistfight with E.C. and there was no evidence that E.C. escalated the situation with deadly force. As such, there was no evidence to support the defense of reclaimed perfect or imperfect defense of another. Further, the prosecutor in this case did not misstate the law by arguing that defendant had no right to claim defense of another based on CALCRIM No. 3472. Moreover, unlike Ramirez, the other pattern instructions in this case clearly informed the jury defendant could claim both perfect and imperfect defense of another. Indeed, where the modified version of CALCRIM No. 571 in Ramirez removed imperfect self-defense from consideration in that case, here CALCRIM No. 571 informed the jury that perfect and imperfect defense of another were issues for the jury to decide.
As given in this case, CALCRIM No. 571 stated, in relevant part: “A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense or imperfect defense of another. [¶] 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. The difference between complete self-defense or defense of another and imperfect self-defense or imperfect defense of another depends on whether the defendant’s belief in the need to use deadly force was reasonable. [¶] The defendant acted in imperfect self-defense or imperfect defense of another if: [¶] 1. The defendant actually believed that he or Jeremy Mendivil was in imminent danger of being killed or suffering great bodily injury; [¶] AND [¶] 2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; [¶] BUT [¶] 3. At least one of those beliefs was unreasonable.” The jury was also instructed with CALCRIM No. 505, which stated, in relevant part: “The defendant is not guilty of murder or manslaughter if he was justified in killing someone in self-defense or defense of another.”
In short, instructing the jury with CALCRIM No. 3472 was an accurate statement of the law under the facts of this case. Contrary to defendant’s contention, CALCRIM No. 3472 did not remove from the jury’s consideration the possibility defendant acted in perfect or imperfect defense of his brother. And CALCRIM Nos. 505 and 571 expressly defined perfect and imperfect defense of another. These instructions explained defendant was not guilty of murder if he acted in perfect defense of Jeremy and he was only guilty of manslaughter if he acted in imperfect defense of Jeremy. Consistent with these instructions, the prosecutor acknowledged the availability of imperfect defense of Jeremy as a defense to the murder charge during closing argument, but argued the evidence did not support such a finding. While the prosecutor read the language of CALCRIM No. 3472 to the jury, at no point did he argue that because Jeremy had provoked the initial confrontation, defendant was entirely precluded from relying on the theory that he engaged in perfect or imperfect defense of Jeremy, even if Jeremy had only intended to provoke a fistfight. During defense counsel’s closing argument, she argued perfect or imperfect defense precluded a conviction for murder, and reminded the jury the prosecutor had the burden to prove beyond a reasonable doubt defendant acted neither in perfect nor imperfect defense of Jeremy. Under the circumstances, the trial court did not err by instructing the jury with CALCRIM No. 3472.
DISPOSITION
The judgment is affirmed.



NICHOLSON , Acting P. J.



We concur:



BUTZ , J.




MAURO , J.