Filed 4/20/18 P. v. Campbell-Loya CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
PHOENIX CAMPBELL-LOYA,
Defendant and Appellant.

A148648

(Humboldt County
Super. Ct. No. CR1405814)


This is an appeal from judgment after a jury convicted defendant Phoenix Campbell-Loya of assault with a deadly weapon and carrying a concealed dirk or dagger. Defendant challenges this judgment on the grounds that the trial court incorrectly instructed the jury in connection with his primary theory of self-defense, and that his trial attorney rendered ineffective assistance in violation of his constitutional right to counsel by failing to request an instruction permitting the jury to consider a third party’s prior assault or threats reasonably associated with the victim when evaluating defendant’s use of force against the victim. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 22, 2014, a criminal information was filed charging defendant with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) (count one), and carrying a concealed dirk or dagger (Pen. Code, § 21310) (count two).
At trial, the following evidence was presented. On December 3, 2014, E.H. and I.H., both age 17, were spending the afternoon at a park in the City of Arcata. E.H. had a vaporizer and was “vaping,” meaning he was ingesting an e-liquid containing nicotine, vegetable glycerin, sugar and water. This device, purchased for him by a friend, cost about $200.
I.H. first saw defendant, a stranger, walking on nearby train tracks and carrying a bottle of alcohol. He appeared intoxicated. I.H. had been smoking marijuana and offered defendant his pipe. Defendant asked to use E.H.’s vaporizer, so E.H. handed it to him. After defendant took a “hit,” E.H. asked him to return the vaporizer, but “he didn’t give it back.” Instead, defendant pulled out a knife, grabbed his belongings and warned, “ ‘I’ll stab you. I’ll stab you. I’ll shank you, Bro [sic].’ ” According to I.H., defendant then said, “ ‘You don’t want to mess. You don’t want to get stabbed.’ ”
E.H. described defendant as holding the knife “down to his side,” while I.H. testified that he held the knife out toward E.H. from “[n]o more than three or four feet” away. Defendant began walking away, but after E.H. approached him, defendant threw down his coat and ran away at what appeared to be his maximum speed.
On June 29, 2015, the jury found defendant guilty as charged, and the trial court found him in violation of probation in an unrelated case. On June 14, 2016, the trial court sentenced defendant to a total term of two years eight months, and then ordered his release upon finding he had completed this sentence. Defendant filed a timely notice of appeal on June 23, 2016.
DISCUSSION
Defendant raises the following issues for our consideration. Defendant first contends count one must be reversed because the trial court prejudicially erred by instructing the jury pursuant to CALCRIM No. 3472 that a defendant who provokes a fight or quarrel with the intent to use force does not have the right to self-defense. Second, defendant contends reversal of count one is also required because the trial court prejudicially erred by failing to sua sponte instruct the jury that it could consider evidence of victim I.H.’s prior assaults or threats that defendant reasonably associated with victim E.H. in evaluating the reasonableness of defendant’s use of force toward victim E.H. Finally, defendant contends in the alternative that count one must be reversed because his counsel rendered ineffective assistance in violation of his constitutional rights by failing to request an instruction to the jury that it could consider I.H.’s prior assaults or threats reasonably associated with E.H. when evaluating defendant’s use of force against E.H. We address each issue in turn.
I. Did the trial court err when instructing the jury pursuant to CALCRIM No. 3472?

CALCRIM No. 3472, as given in this case, provides: “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.” Defendant contends the trial court prejudicially erred by giving this instruction because, first, it misstates the law and, second, it was not supported by substantial evidence. In effect, he insists, the erroneous instruction precluded the jury from considering his primary defense of self-defense by instructing the jury categorically that a person who provokes a fight or quarrel with the intent to create an excuse to use force has no right of self-defense. (See People v. Ramirez (2015) 233 Cal.App.4th 940, 950–952 (Ramirez).) As such, defendant continues, his federal due process rights were violated, requiring reversal.
We first turn to defendant’s argument, based on Ramirez, that CALCRIM No. 3472 misstates the law by instructing the jury, categorically, that a person who provokes a fight or quarrel with the intent to create an excuse to use force has no right of self-defense. Having closely examined his authority, we conclude defendant reads Ramirez too broadly.
Ramirez held: “Under the facts of this case,” CALCRIM No. 3472 misstated the law because it “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.) Thus, in Ramirez, instructing on CALCRIM No. 3472 erroneously permitted the jury to reject the defendant’s self-defense theory on the basis of his admission that he sought out the victim and the victim’s fellow gang members with the intent to instigate a fist fight or some other form of nondeadly force, without anticipating the victim would then escalate the conflict with deadly force. (Id. at pp. 945–947.) However, as the reviewing court explained, a defendant who provokes a nondeadly confrontation, as occurred there, does in fact have the right to defend himself or herself against the victim’s unjustified use of deadly force. On the other hand, if a defendant provokes a deadly confrontation, “there can be no incommensurate or unjustifiable response by the victim: he or she is fully entitled to use deadly force and the defendant has no right to claim self-defense against those deadly measures.” (Id. at pp. 947–948.) Thus, while “CALCRIM No. 3472 states a correct rule of law in appropriate circumstances,” in Ramirez it did not. (Ibid., citing People v. Enraca (2012) 53 Cal.4th 735, 761–762.)
Our case differs from Ramirez. After refusing to return E.H.’s vaporizer and initially turning to leave, defendant then turned back around, withdrew a pocketknife, and, lifting it toward E.H., threatened: “I’ll stab you. I’ll shank you, Bro [sic].” Only then did defendant turn and run away at what appeared to be his maximum speed, prompting victims to chase him down. Thus, unlike the Ramirez defendant, our defendant provoked his victims by use of deadly force—assaulting E.H. with a deadly weapon (to wit, a pocketknife). And while defendant makes much of the fact that I.H., the person who testified that defendant lifted the knife toward E.H. when threatening him, had a prosthetic eye that affected his vision, defendant has not challenged the trial court’s admission of this testimony. As such, the jury could properly consider I.H.’s testimony on this point when deciding whether defendant provoked a fight or quarrel with the intent to create an excuse to use force within the meaning of CALCRIM No. 3472. (People v. Kraft (2000) 23 Cal.4th 978, 1053 [“In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.]”].)
Accordingly, we reject defendant’s first instructional challenge. As explained above, under the circumstances of this case, the CALCRIM No. 3472 instruction was both a correct statement of the law and supported by substantial evidence. The jury could have reasonably concluded on this record that defendant first provoked this conflict by stealing E.H.’s vaporizer, and then escalated it by refusing to return the vaporizer and withdrawing a pocketknife, which he then directed at E.H. while threatening to stab him. Thus, even accepting defendant’s point that the victims at that point escalated the conflict by using more force than necessary to recover the vaporizer—in that they chased him down, threatened him and prepared to strike him with a skateboard (I.H.) and a board with a protruding nail (E.H.)—the jury was appropriately instructed that defendant forfeited his right to self-defense at the point that he initially created the physical confrontation with the victims by threatening them with a deadly weapon (to wit, his pocketknife). Accordingly, the trial court’s instruction on CALCRIM No. 3472 was proper under both the law and facts. (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”].)
II. Did the trial court err by failing to instruct the jury regarding third party prior assaults or threats?

Defendant next claims reversible error as to count one based upon the trial court’s failure to instruct the jury on a third party’s prior assaults or threats that a defendant reasonably associates with the victim. Specifically, defendant claims the trial court should have provided the following instruction, described as a modified version of the bracketed portion of CALCRIM No. 3470: “If you find that the defendant received a threat from someone else or was assaulted by someone else that he reasonably associated with [E.H.], you may consider that threat or assault in deciding whether the defendant was justified in acting [in] self defense.” Defendant acknowledges his attorney’s failure to request this instruction, but claims the trial court nonetheless had a sua sponte duty to give it. The following principles apply.
“It is the trial court’s statutory duty to instruct on the law applicable to the facts of the case ([Pen. Code,] §§ 1093, subd. (f), 1127), including the defendant’s theory of defense [citation][.] The trial court has a sua sponte duty to instruct the jury on an affirmative defense ‘even in the absence of a request, “if it appears the defendant is relying on such a defense,” ’ as here, ‘ “or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.” [Citation.]’ [Citation.] Although no particular jury instructions are required, the court has a duty to ensure that the instructions provide a complete and accurate statement of the law. [Citations.] Where, as here, the trial court’s failure to properly instruct the jury affects the defendant’s substantial rights, the defendant’s failure to object does not bar the appeal. (§ 1259; [citations].)” (Ramirez, supra, 233 Cal.App.4th at p. 949.)
“Yet this duty is limited: ‘the trial court cannot be required to anticipate every possible theory that may fit the facts of the case before it and instruct the jury accordingly. [Citation.] Thus, the court is required to instruct sua sponte only on general principles which are necessary for the jury’s understanding of the case. It need not instruct on specific points or special theories which might be applicable to a particular case, absent a request for such an instruction.’ [Citations.] Alternatively expressed, ‘[i]f an instruction relates “particular facts to the elements of the offense charged,” it is a pinpoint instruction and the court does not have a sua sponte duty to instruct.’ [Citation.] For example, our Supreme Court has recently held there is no sua sponte obligation to instruct on after-formed intent. (People v. Jones (2003) 29 Cal.4th 1229, 1258–1259 [131 Cal.Rptr.2d 468, 64 P.3d 762].)” (People v. Garvin (2003) 110 Cal.App.4th 484, 488–489 (Garvin).)
Relying on the aforementioned principle that a trial court has a sua sponte duty to instruct on a defendant’s theory of defense, defendant argues that, since “the doctrine of antecedent and third party threats is now a ‘general principle’ of law” and there was substantial evidence of such a threat by I.H. in this case, he was entitled to his proposed modified version of CALCRIM No. 3470. And because there was no such instruction, he continues, reversal of count one is required. The People dispute a sua sponte duty to instruct arose in this case, arguing that the proposed instruction on third party assaults or threats is more akin to a pinpoint or clarifying instruction rather than an instruction on an applicable legal principle. We agree with the People.
As explained in Garvin: “Defendant offers no reasons supporting imposition of a sua sponte instructional duty other than that the rule concerning antecedent threats is not a recent, ‘abstruse, underdeveloped theory of law’ and that such an instruction is supported by the evidence. We are not convinced. The trial court was obligated to instruct on the basic principles of self-defense. It satisfied this duty by giving the standard CALJIC instructions on this topic. These instructions are legally correct and the concept of antecedent assaults is fully consistent with the general principles that are expressed therein. (People v. Gonzales [(1992)] 8 Cal.App.4th [1658,] 1665.) The issue of the effect of antecedent assaults against defendant on the reasonableness of defendant’s timing and degree of force highlights a particular aspect of this defense and relates it to a particular piece of evidence. An instruction on the topic of antecedent assaults is analogous to a clarifying instruction. It is axiomatic that ‘[a] defendant who believes that an instruction requires clarification must request it.’ (People v. Coddington (2000) 23 Cal.4th 529, 584 [97 Cal.Rptr.2d 528, 2 P.3d 1081].) Therefore, we conclude that this is a specific point and is not a general principle of law; the trial court was not obligated to instruct on this issue absent request.” (Garvin, supra, 110 Cal.App.4th at p. 489.)
Garvin is on all fours with our case. First, like the Garvin defendant, defendant offers no reasons for imposing a sua sponte duty on the trial court to give his proposed instruction aside from his claims that the doctrine of antecedent, third party threats is now a general principle of law and is supported here by substantial evidence. We, however, like our Garvin colleagues, view defendant’s proposed instruction as merely a clarifying instruction intended to highlight particular evidence—to wit, I.H.’s testimony that, after he and E.H. chased defendant down to recover E.H.’s vaporizer, I.H. threatened and/or assaulted him with a skateboard, prompting him to swing his pocketknife at E.H. in (he says) self-defense. Following Garvin, among other cases, we conclude defendant’s reasoning does not support the imposition of a mandatory trial court duty to instruct. (Garvin, supra, 110 Cal.App.4th at p. 489; see also People v. Gonzales, supra, 8 Cal.App.4th at pp. 1663–1664 [rejecting the defendant’s claim of entitlement to a jury instruction on an antecedent assault by one party and a subsequent assault by another in connection with his self-defense theory].)
Thus, given these circumstances, defendant cannot avoid the “long-standing general rule . . . that the failure to request clarification of an instruction that is otherwise a correct statement of law forfeits an appellate claim of error based upon the instruction given.” (People v. Rundle (2008) 43 Cal.4th 76, 145, 151 [“Any lack of clarity regarding the consideration, if any, the jury should give to evidence of voluntary intoxication, in the absence of a request for an instruction on this subject, is of the defendant’s doing, and on appeal he cannot avail himself of his own inaction”], disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Undisputedly, defendant failed to request any clarification or modification of the self-defense instructions given to the jury at trial. As such, he cannot argue on appeal that the trial court’s self-defense instructions, otherwise correct in law, were inadequate or incomplete in his case. (People v. Rundle, supra, at p. 145; see also People v. Guiuan (1998) 18 Cal.4th 558, 570 [“ ‘Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language’ ”].)
Moreover, even assuming for the sake of argument defendant’s proposed instruction should have been given, there is no undue prejudice on this record supporting reversal of count one. First, as discussed above, in Part I, there was substantial evidence that defendant completed his commission of count one several minutes before the alleged prior threat or assault by I.H. occurred—to wit, when defendant initially directed his pocketknife at E.H. and threatened to stab him after refusing to return his vaporizer. (At pp. 3–5, ante.) And, even if not, defense counsel highlighted I.H.’s testimony regarding the prior assault or threat in oral argument, after which the jury was thoroughly instructed on the principles governing defendant’s self-defense claim, including the jury’s evaluation of all admissible evidence relating to his perceptions of the surrounding risks at the time he used force against E.H. In other words, the instructions provided, reasonably interpreted by jurors, permitted them to consider the same evidence of I.H.’s prior threat or assault that defendant claims should have been highlighted by the trial court in a separate sua sponte instruction. Accordingly, defendant’s argument—that, “[s]ince the entire self-defense claim therefore depended on the evidence that [I.H.] had threatened and/or assaulted [him], the trial court had a sua sponte duty to instruct the jury on the law of third party threats and assaults”—rings hollow. (See People v. Gonzales, supra, 8 Cal.App.4th at p. 1665 [“The concept [of antecedent third party threats] is closer to rough and ready common sense than abstract legal principle. It is also fully consistent with the otherwise complete self-defense instructions given by the court. It is [thus] unlikely the jury hearing the evidence, the instructions given and the argument of counsel would have failed to give the defendant’s position full consideration”], fn. omitted.)
Accordingly, for the reasons provided, we conclude the lack of a clarifying or pinpoint instruction regarding the relevance of antecedent, third party threats or assaults to defendant’s theory of self-defense must be deemed harmless, whether assessed under the People v. Watson (1956) 46 Cal.2d 818 standard of prejudice or the more stringent Chapman v. California (1967) 386 U.S. 18 standard.
III. Did defendant receive ineffective assistance of counsel?
Defendant’s last argument is that, even if the trial court had no sua sponte duty to instruct the jury that it could consider third party prior assaults or threats, his counsel rendered ineffective assistance in violation of his constitutional rights by failing to request such an instruction. We disagree. It is well established that where, as here, “the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.” (People v. Kraft (2000) 23 Cal.4th 978, 1068–1069.) This accords with the strong presumption under California law that counsel’s conduct falls within the wide range of reasonable professional assistance. As such, “ ‘ “the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” ’ ” (People v. Burnett (1999) 71 Cal.App.4th 151, 180, quoting People v. Bunyard (1988) 45 Cal.3d 1189, 1215 and Strickland v. Washington (1984) 466 U.S. 668, 689.)
Here, the appellate record contains no explanation for defense counsel’s failure to request an instruction relating to I.H.’s prior assault or threats that defendant could have reasonably associated with E.H. when committing count one. At no time was defense counsel asked to explain this failure, nor did counsel offer an explanation for it, either directly or indirectly. As such, under the standards set forth above, we must reject defendant’s claim of ineffective assistance of counsel on direct appeal “ ‘unless there simply could be no satisfactory explanation.’ (People v. Pope (1979) 23 Cal.3d 412, 426 . . . .)” (People v. Kipp (1998) 18 Cal.4th 349, 367.)
And even were we to excuse this lack of explanation, “ ‘[i]n assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.]’ ” (People v. Carter (2005) 36 Cal.4th 1114, 1189.) As mentioned above, we presume counsel’s performance at trial fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy. (Ibid.) Applying this standard for ineffective assistance of counsel claims here, we find no error requiring reversal. As we have already explained, defendant’s proposed instruction regarding antecedent third party threats was unnecessary in light of the adequacy of the self-defense instructions given to the jury and the wealth of evidence and argument presented regarding why defendant acted as he did. As such, it is likely defense counsel did not request the proposed instruction because he reasonably believed it was not necessary. We thus decline to disturb his sound professional judgment. (People v. Bunyard, supra, 45 Cal.3d at p. 1215.)
DISPOSITION
The judgment is affirmed.

_________________________
Jenkins, J.


We concur:


_________________________
McGuiness, Acting P.J.*


_________________________
Pollak, J.