P. v. Ruiz

Filed 10/12/06 P. v. Ruiz CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

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, Carla Singer, Judge. Affirmed and remanded, with directions.

Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Gil Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Michael Ruiz of assault with a firearm (Pen. Code, § 245, subd. (a)(2)),[1] possession of a firearm by a convicted felon, the gang offense of carrying a loaded firearm in public, and street terrorism. The jury acquitted Ruiz of attempted murder. The jury concluded Ruiz committed the offenses for the benefit of a criminal street gang and the trial court found he suffered two prior “strike” convictions, both for serious felonies, and had served two prior prison terms. The trial court exercised its discretion to strike one of the strikes and sentenced Ruiz to a total prison term of 25 years.

Ruiz contends the trial court erred in failing to instruct the jury sua sponte that an initial aggressor regains the right of self-defense if the victim escalates a simple assault by responding with deadly force. We reject this contention because no reasonable juror could conclude the victim’s attempt to disarm Ruiz constituted excessive, unreasonable, or otherwise unlawful force. Therefore, no right of self-defense arose for Ruiz as the aggressor. Ruiz preserves a claim of sentencing error under Blakely v. Washington (2005) 542 U.S. 296 (Blakely) for federal review. Finally, the Attorney General concedes the trial court improperly imposed two prior prison term enhancements (one year each) while imposing prior serious felony enhancements on the same convictions. Accordingly, we affirm the judgment and remand with directions to correct the sentence.

I

FACTUAL AND PROCEDURAL BACKGROUND

The victim, Alexander Moore, a sergeant for a private security firm, testified that at approximately 3:30 in the morning on April 15, 2003, three women requested assistance with their vehicle, which would not start. Moore followed them to the parking lot of a nearby nightclub in his vehicle, removed his jumper cables, and opened the hood of their car.

Ruiz suddenly approached in an aggressive manner. Moore responded by raising his hands, palms up. In raising his hands, he touched Ruiz’s chest. As Moore made contact with Ruiz, he felt an object concealed under Ruiz’s clothing that he believed was the butt of a rifle. Moore felt threatened.

All at once, Ruiz struck Moore’s right cheek like he was trying to “absolutely knock me out.” The two exchanged blows and when Ruiz claimed, “I’m not going to shoot you,” Moore responded, “I don’t know that.” Ruiz grabbed the ammunition clip from the weapon and hurled it at Moore, who flipped it out of reach behind a gate. Moore struck a hard blow on Ruiz and used the opportunity to retreat to his vehicle. Ruiz pulled the weapon, a rifle, out from under his shirt and began “seesawing” it up and down while pointed at Moore. Ruiz screamed that he was going to kill Moore. Ruiz also claimed to be a gang member and called out the gang’s name. Moore retrieved his duty weapon from the trunk of his car and fired 10 shots at Ruiz, who was still yelling he was going to kill Moore. Hit by one of Moore’s bullets in the ankle, Ruiz fell. He dropped the rifle and fled.

Following the incident, Moore gave a statement to a police officer who responded to the scene. The report was read to the jury. It differed in some respects from Moore’s testimony, and the prosecutor advised the jury to rely on the report rather than the testimony.

As pertinent, the report stated the following: “The suspect asked Moore, ‘What’s your problem?’ ‘What are you doing with these ladies?’ Moore told the suspect that there was no problem, he just wanted to give them a jump. Moore, being a security guard, observed a large bulge underneath the suspect’s jacket. Moore was thinking the bulge was a gun. Moore was not wearing his gun at the time.

“Moore stated he grabbed the bulge that was underneath the suspect’s jacket and felt the rifle. Moore grabbed the handle on the rifle and started fighting with the suspect. Moore tried to pull the trigger to malfunction the rifle. Moore was unable to fire the rifle and continued to fight with the suspect. Moore then tried to pull the clip out of the rifle and started to yell at the suspect to give him the clip. Moore and the suspect continued to fight for the rifle when Moore was able to take the clip out of the rifle. Moore saw the clip was full . . . and threw it over [a] block wall . . . .

“Moore [and] the suspect . . . continued to fight over the rifle. The suspect told Moore he was from a gang and that he was going to ‘shoot him.’ Moore could not remember what gang the suspect told him. Moore ran to his vehicle where the trunk was open. Moore grabbed his Beretta handgun out of the trunk. Moore was on the driver’s side door of his Nissan vehicle. The suspect was on the passenger side of [the] other Plymouth vehicle. The suspect yelled at Moore that, ‘I have one bullet left and I’m gonna kill you.’ Moore heard the suspect rack the rifle and then point it at Moore from over the top of the Plymouth. . . .”

“Moore stated he then started to fire his handgun at the suspect. Moore continued to hear the suspect rack the rifle and pull the trigger. The suspect continued to yell at Moore that he was ‘going to kill him.’ Moore fired all ten rounds from his handgun and went to the trunk for another magazine. . . . Moore saw the suspect drop the rifle and take off running . . . . Moore stated he grabbed the rifle and secured it in the trunk of his vehicle.”

II

DISCUSSION

A. No Instructional Error Regarding Self-Defense by an Aggressor

Ruiz concedes he was the initial aggressor but argues Moore’s sudden grab for his gun escalated their altercation to deadly terms, reinvesting him with the right of self-defense. Ruiz relies on People v. Quach (2004) 116 Cal.App.4th 294. There, this court found inadequate the then-standard instruction that a mutual combatant must make his renunciation of violence known to his opponent to regain the right of self-defense. If one engages in fisticuffs but his opponent ups the ante to deadly violence too quickly to allow safe escape from the fray, deadly force is justified. (Id. at pp. 301-302.) Quach involved a shootout where the testimony was inconsistent about whether the defendant drew his gun first or only after a rival gang member fired a weapon. (Id. at pp. 297-298.) Following Quach, the jury instructions committee revised not only the mutual combat instructions but also CALJIC No. 5.54, adding the last paragraph set out in the margin below. [2] Ruiz contends the trial court erred in giving the jury CALJIC No. 5.54 without the final paragraph.

We are not persuaded. Quach is inapposite and does not aid Ruiz because its holding stems from the rule that the initial aggressor may resort to self-defense only if the victim’s response is unjustified, “criminal,” or a “greater wrong.” (People v. Hecker (1895) 109 Cal. 451, 464; see Quach, supra, 116 Cal.App.4th at p. 302 [relying on Hecker].) Ruiz quotes the operative passage from Hecker but omits the italicized language: “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: For, as his acts did not justify upon the part of the other the use of deadly means for their prevention, his killing by the other would be criminal, and one may always defend himself against a criminal attempt to take his life. . . . If . . . 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.” (Hecker, supra, 109 Cal. at p. 464, italics added.)

We conclude the evidence did not support or require giving the final paragraph of CALJIC No. 5.54 because no reasonable juror could conclude Moore’s attempt to disarm his attacker was unjustified, “criminal,” or a “greater wrong” than Ruiz’s attack. (See People v. Clark (1982) 130 Cal.App.3d 371, 378 [issue may be decided as matter of law where no reasonable person could conclude force used in self-defense was excessive], overruled on another ground in People v. Blakely (2000) 23 Cal.4th 82, 92; see generally 2 Cal. Affirmative Def. (2006) § 50:9.) Put another way, as a matter of law, Moore’s grab for his attacker’s gun did not constitute excessive, unreasonable, or otherwise unlawful force.

Acts undertaken in self-defense are not unlawful. (Civ. Code, § 50; Pen. Code, §§ 692, 693; see, e.g., People v. Duchon (1959) 165 Cal.App.2d 690, 693 [“A battery cannot be committed by acts done in self-defense”].) A person assailed may defend himself from apprehended danger to any extent which to him is apparently necessary, when he acts in a reasonable manner. (People v. Russell (1943) 59 Cal.App.2d 660, 663.) “[T]he law will not measure the degree of necessary force with a nice hand,” but rather will hold the person assaulted responsible only “for a clearly marked excess.” (McAfee v. Ricker (1961) 195 Cal.App.2d 630, 635.)

As the court observed in People v. Garcia (1969) 275 Cal.App.2d 517, “A man has not the right to provoke a quarrel, go to it armed, take advantage of it and then convert his adversary’s lawful efforts to protect himself into grounds for further aggression against him under the guise of self-defense.” (Id. at p. 523, italics added.) In Garcia, the victim was justified in attempting to disarm an attacker who approached him with a bow-and-arrow. (Id. at p. 522.)

Here, Ruiz concedes he was the initial aggressor. Moore was not required to wait for Ruiz to strike the first blow. (See Rivas v. Ayala (1962) 208 Cal.App.2d 239, 242 [victim could meet aggressor in street rather than close quarters of bar]; Ballew v. Davis (1946) 76 Cal.App.2d 418, 419 [victim acted in self-defense in anticipating another’s blow].) And once Moore physically contacted Ruiz and realized his assailant had a rifle, he was not obligated to wait for Ruiz to train it on him, but rather could take defensive action. (People v. Alexander (1934) 1 Cal.App.2d 570, 571 [“‘I didn’t know whether he had a knife or gun or what he had, and I thought it was best for me to protect myself first’”].) And when Ruiz came away from the struggle with the rifle, Moore lawfully retrieved his own gun from his trunk. (People v. Russell, supra, 59 Cal.App.2d at p. 663 [person assailed has right to repel force with force]; People v. Garcia, supra, 275 Cal.App.2d at p. 522 [“sufficient that the appearance of his assailant be such as to arouse in his mind, as a reasonable man, a belief that his assailant was about to commit great bodily injury on him”].) In sum, because no evidence suggested Moore utilized excessive, unreasonable, or unlawful force at any time, as a matter of law Ruiz did not gain the right to self-defense. Consequently, the trial court did not err in failing to instruct with the remainder of CALJIC No. 5.54.

B. Sentencing Issues

Ruiz contends the trial court violated Blakeley, supra, 542 U.S. 296 by employing judicial findings to impose the upper term on his assault conviction. Our Supreme Court reached a contrary conclusion in People v. Black (2005) 35 Cal.4th 1238, 1244, so the claim furnishes no basis for reversal. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Finally, respondent concedes the trial court improperly imposed two prior prison terms enhancements (one year each; § 667.5, subd. (b)) while imposing prior serious felony enhancements (§ 667, subd. (a)) for the same convictions. (People v. Jones (1993) 5 Cal.4th 1142.) Remand for resentencing, as respondent requests, would be a waste of judicial resources because Ruiz has received the maximum possible determinate sentence. As Ruiz points out, the court imposed the upper term, doubled, on the assault charge. Section 654 required the court to stay the street terrorism and possession of a loaded firearm in public by a gang member. And the trial court already determined the felon in possession firearm charge did not warrant a consecutive sentence. None of the applicable factors (see Cal. Rules of Court, rule 4.425) would support imposing a consecutive sentence on remand. Nor can the trial court “unstrike” the dismissed strike because the resulting indeterminate sentence would amount to more severe punishment on resentencing, in violation of the California Constitution. (People v. Hanson (2000) 23 Cal.4th 355, 357; People v. Henderson (1963) 60 Cal.2d 482, 496-497.)

III

DISPOSITION

The case is remanded to the trial court with directions to strike the two one-year enhancements imposed under section 667.5, subdivision (b). In all other respects, the judgment is affirmed.

ARONSON, J.

WE CONCUR:

SILLS, P.J.

FYBEL, J.

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[1] All further statutory citations are to this code unless noted otherwise.

[2] In full, CALJIC No. 5.54 provides: “The right of self-defense is only available to a person who initiated an assault, if

[[1.] [He] [She] has done all the following:

A. [He] [She] has actually tried, in good faith, to refuse to continue fighting;

B. [He] [She] has by words or conduct caused [his] [her] opponent to be aware, as a reasonable person, that [he] [she] wants to stop fighting; and

C. [He] [She] has by words or conduct caused [his] [her] opponent to be aware, as a reasonable person, that [he] [she] has stopped fighting.

After [he] [she] has done these three things, [he] [she] has the right to self-defense if [his] [her] opponent continues to fight[.]] [, or]

[[2.] [if] [T][t]he victim of simple assault responds in a sudden and deadly counterassault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense.]”