Filed 9/30/15 P. v. Alfaro CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B256607
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA384998)
v.
JULIO OBALDO ALFARO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of the County of Los Angeles,
Monica Bachner, Judge. Affirmed in part, modified, and remanded.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney
General, Lance E. Winters Senior Assistant Attorney General, Susan Sullivan Pithey,
Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General, for
Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant Julio Obaldo Alfaro (defendant) was convicted of
attempted murder (Pen. Code, §§ 664 and 187, subd. (a)1) and assault with a
semiautomatic firearm (§ 245, subd. (b)). On appeal, defendant contends that the trial
court abused its discretion in denying his numerous Marsden2 motions; the trial court
erred by instructing the jury with CALCRIM No. 3472; an error in the calculation of his
presentence credits should be corrected; and the abstract of judgment should be amended
to reflect that he was convicted by jury instead of by plea. We remand the matter for the
trial court to modify the judgment and amend the abstract of judgment to reflect that
defendant is entitled to receive a total of 1,259 days of custody credit, and to amend the
abstract of judgment to reflect that defendant was convicted by a jury. We otherwise
affirm the judgment.
BACKGROUND
A. Factual Background
1. Prosecution Evidence
73-year-old Juan Jose Rodriguez (Juan Jose)3 testified that he was standing outside
of his apartment building with a friend, Jose Elias Rodriguez (Jose Elias).4 Defendant
approached Juan Jose as he was unlocking the gate to his apartment building. Juan Jose
knew defendant, but never had any disputes with him prior to that date. Defendant
insulted Juan Jose, calling him a “son of a bitch,” and accused him of “saying crazy
1
All statutory citations are to the Penal Code unless otherwise noted.
2
People v. Marsden (1970) 2 Cal.3d 118.
3
Juan Jose is sometimes referred to in the reporter’s transcript as Don Juan.
4
In his briefs, defendant refers to Jose Elias as Juan Elias.
2
things about” defendant. Juan Jose told defendant that he never talks about defendant.
Defendant “came up” to where Juan Jose was standing, and Juan Jose “put [his] hands
out to create distance, because [defendant] was angry” and Juan Jose “didn’t want
[defendant] to [lunge] at” him. Juan Jose put his hands against defendant’s chest and
defendant became “quiet.” Juan Jose then took his key and again tried to unlock the gate
while also looking at defendant. Juan Jose felt a bullet strike him in the left side of his
stomach. Juan Jose did not remember anything thereafter through the time he was
released from the hospital. Juan Jose did not see defendant holding a gun. Juan Jose
denied hitting, physically attacking, or choking defendant prior to the shooting.
Jose Elias testified that he saw defendant approach Juan Jose but he did not know
what they said to each other, and did not “see” any conversation or physical contact
between the two. Jose Elias saw defendant move his hand toward his waist, pull out a
weapon, and fire the weapon at Juan Jose. Defendant was about one-half to one foot
away from Juan Jose when he fired the weapon. Jose Elias said the weapon was a black
or gray colored semiautomatic handgun. When defendant fired the weapon, it ejected a
shell casing that landed near Jose Elias. After shooting Juan Jose, defendant placed the
weapon in his waistband and left the area. Jose Elias had known Juan Jose for fifteen
years and had known defendant for a “long time” prior to the shooting. Jose Elias had
never had any problems with defendant prior to the shooting, and he had never seen Juan
Jose and defendant engage in any argument prior to that day.
The police arrested defendant later that afternoon, approximately one or two
blocks from the shooting. Defendant was searched and the police found a semiautomatic
pistol with a gold finish in defendant’s waistband. The police located a shell casing at the
scene of the shooting.
3
2. Defendant’s Evidence
Defendant testified that he lived in the same apartment building in which Juan
Jose lived. A short time before the shooting incident, defendant had a stroke and half of
his body was impaired. Defendant said he walked “as if [he] were drunk.” Defendant
also suffered a “brain injury” and had difficulty remembering things. On the day of the
shooting, he had a gun with him because he was thinking of killing himself. More than a
year prior to the incident, defendant found the gun in a trash can. He kept it in “a hiding
place” in the maintenance room of the building. He testified that there was no “particular
reason” that he kept the gun; he did not regularly carry the gun; and the day of the
incident was the first time that he carried the gun.
On the day of the incident, defendant testified that he saw Juan Jose entering the
building and told him that he wanted to speak to him. Juan Jose did not respond and
continued to enter the building. Juan Jose “came out [of the building] all of a sudden”
and “assaulted” defendant, which was “easy” because “half of [defendant’s] body [was]
impaired.” Defendant testified that Juan Jose “grabbed” him, pushed him against a hand
rail, and Juan Jose put his hands on defendant’s neck. Defendant said that he was “very,
very, very scared” and he defended himself with the gun. Defendant admitted that he
shot at Juan Jose, but did not know why he fired the gun. Defendant testified that he was
trying to “get [Juan Jose] away from” him. According to defendant, he was unable to
push Juan Jose away from him because defendant was paralyzed on the left side of his
body. Defendant said he did not know why he left the scene after the shooting; he was
not thinking straight.
Defendant testified that he never had “any argument with Don Juan,” and he was
not angry with him. Defendant does not recall speaking with police officers after the
incident, or of advising them that Don Juan choked him.
3. Rebuttal Evidence
The parties stipulated a police officer would testify that defendant told him on the
day of the shooting that: “[Defendant] heard his friend call victim [Juan Jose] and
4
overheard [that] they were going to meet up. [Defendant] saw this as an opportunity to
confront the victim about talking bad about him, spreading rumors. [Defendant] said he
attempted to confront the victim. When the victim told [defendant] that he was going to
beat him up and called him a son of a bitch, the victim pushed [defendant] with both
hands, knocking him back on to the railing of the stairs of [the apartment building]. The
victim stumbled back and then [defendant] lost control of his thoughts, pulled out the
pistol he had in his left rear waistband and fired one shot at the victim. He was asked
about the handgun he used and [defendant] stated he found it six to seven years ago in the
Echo Park area in a trash can. He retrieved it and hid it on the property belonging to his
father at [the apartment building]. Today, [defendant] retrieved the handgun because he
had suicidal thoughts. [Defendant] stated he had a stroke approximately nine days ago
and was admitted to USC Medical Center. He was released on Thursday, May 26th. He
is emotionally distraught over him not being able to use the left side of his body and can
no longer work, and stated he feels useless. He has had an ongoing dispute with the
victim over the victim spreading rumors about him.”
B. Procedural Background
Following trial, the jury found defendant guilty of attempted murder in violation
of sections 664 and 187, subdivision (a) (count 1) and assault with a semiautomatic
firearm in violation of section 245, subdivision (b) (count 2). As to count 1, the jury
found not true an allegation that the attempted murder was committed willfully,
deliberately, and with premeditation, and found true enhancement allegations of personal
use of a firearm as defined by section 12022.53, subdivisions (b)-(d) and an enhancement
allegation of great bodily injury as defined by section 12022.7, subdivision (c). As to
count 2, the jury found true an enhancement allegation of the great bodily injury as
defined by section 12022.7, subdivision (c) and an enhancement allegation of the
personal use of a firearm as defined by sections 12022.5, 1192.7, subdivision (c) and
667.5, subdivision (c).
5
The trial court sentenced defendant to state prison for a term of 30 years to life,
consisting of a term of five years on count 1 plus 25 years to life pursuant to section
12022.53, subdivision (d). The trial court imposed and stayed sentence on count 2
pursuant to section 654. The trial court awarded defendant custody credit, and ordered
him to pay various fees, fines and penalties. Defendant filed a timely notice of appeal.
DISCUSSION
A. Marsden Motions
Defendant contends that the trial court abused its discretion in denying his
numerous motions made pursuant to People v. Marsden, supra, 2 Cal.3d 118. We
disagree.
1. Standard of Review
We review a trial court’s decision to deny a Marsden motion under the deferential
abuse of discretion standard. (People v. Taylor (2010) 48 Cal.4th 574, 599.) “Denial is
not an abuse of discretion ‘unless the defendant has shown that a failure to replace
counsel would substantially impair the defendant’s right to assistance of counsel.’
(People v. Smith [(2003)] 30 Cal.4th [581,] 604.)” (People v. Taylor, supra, 48 Cal.4th at
p. 599; People v. Panah (2005) 35 Cal.4th 395, 431.)
2. Applicable Law
A defendant who believes that his appointed counsel is providing ineffective
assistance may seek to have that counsel relieved and substitute counsel appointed
through “what is commonly called a Marsden motion.” (People v. Smith, supra, 30
Cal.4th at p. 604.) To prevail, the defendant must make “‘“a substantial showing”’” that
denial of his Marsden motion is likely to result in “‘“constitutionally inadequate
representation.”’” (People v. Streeter (2012) 54 Cal.4th 205, 230.) Our Supreme Court
stated, “A defendant must make a sufficient showing that denial of substitution would
6
substantially impair his constitutional right to the assistance of counsel (People v. Smith
(1985) 38 Cal.3d 945, 956 [216 Cal.Rptr. 98, 702 P.2d 180]), whether because of his
attorney’s incompetence or lack of diligence (In re Banks (1971) 4 Cal.3d 337, 342 [93
Cal.Rptr. 591, 482 P.2d 215]; People v. Crandell (1988) 46 Cal.3d 833, 854 [251
Cal.Rptr. 227, 760 P.2d 423]), or because of an irreconcilable conflict (People v.
Stankewitz (1982) 32 Cal.3d 80, 93-94 [184 Cal.Rptr. 611, 648 P.2d 578, 23 A.L.R.4th
476]; Brown v. Craven (9th Cir. 1970) 424 F.2d 1166, 1170). We require such proof
because a defendant’s right to appointed counsel does not include the right to demand
appointment of more than one counsel, and because the matter is generally within the
discretion of the trial court. (People v. Marsden, supra, 2 Cal.3d at p. 123.)” (People v.
Ortiz (1990) 51 Cal.3d 975, 980, fn.1.)
A trial court does not err in denying a Marsden motion based on a defendant’s
complaints of his counsel’s inadequacy amounting to tactical decisions. (People v.
Dickey (2005) 35 Cal.4th 884, 922.) “‘When a defendant chooses to be represented by
professional counsel, that counsel is “captain of the ship” and can make all but a few
fundamental decisions for the defendant’ [Citation.]” (People v. Welch (1999) 20
Cal.4th 701, 729.)
3. Relevant Proceedings
a) December 14, 2012, hearing
On December 14, 2012, defendant initially requested that he be permitted to
represent himself, 5 but upon the trial court having admonished him on the disadvantages
of self-representation, defendant requested that the trial court appoint a different attorney
instead of his current counsel, deputy public defender Ms. Gia Bosley. Defendant stated
that he would like another attorney because “the alleged victim,” Juan Jose, did not tell
the truth at the preliminary hearing and Ms. Bosley should have obtained his vision and
5
On several occasions, defendant asked the trial court to permit him to represent
himself.
7
hearing records; defendant wanted Ms. Bosley “to bring in the Mexicans who know very
well what happened” and “they would be able to let you know who I am”; and “[w]hen
[defendant] tried to tell her the man was saying no because you bang, and they told
[defendant] about what [defendant] did, [defendant] wanted to talk [to Ms. Bosley more
about my testimony] and [defendant] couldn’t.”
Ms. Bosley responded by stating that the victim’s vision and hearing were
“not . . . relevant to the case” because “there’s no testimony or evidence . . . from what I
understand . . . that anything was said to the victim prior to being shot,” and [defendant
and the victim have] know[n] each other [for a significant period of time] so there’s no
issue of an I.D. . . .”; defendant had given her the names of some witnesses, her
investigator had spoken to them, and some of the information they provided was “good”
and some of it was “not good for [defendant’s] case”; she had discussed with defendant
his options regarding testifying, but told him that they did not have to make a decision
about that at the time; she had appointed several experts regarding whether defendant was
“competent” and whether the stroke “that he suffered could have had any relation to his
subsequent conduct”; she discussed with defendant whether a handwritten statement he
made shortly after the shooting was accurate and whether it was his writing; and she met
with defendant outside of court prior to his being “declared competent,” “at least five
times” outside of court since then, and had several conversations with him when they
were in court.6 The trial court denied defendant’s Marsden motion, finding that Ms.
Bosley had been adequately representing defendant, and the ultimate decision about what
records to subpoena and what witnesses to call were for the attorney to make.
6
Ms. Bosley said that “there was at least one occasion where I was told by the
Sheriff’s Department that [defendant] refused to come to speak with me in terms of us
preparing the case.” There is no evidence of why defendant refused to speak to her.
8
b) January 28, 2013, hearing
On January 28, 2013, the trial court stated that defendant had written a letter to the
court alleging that he had a conflict of interest with Ms. Bosley, and the trial court
confirmed that defendant was making another Marsden motion. At the confidential
hearing however defendant stated that he did not have a conflict of interest and he “only
wanted to” represent himself. The trial court “concluded” the Marsden hearing “because
it appears it is not actually a Marsden.”
c) April 9, 2014, hearing
On April 9, 2014, defendant made another Marsden motion, stating that he would
like another attorney because he was not given the police report until two years after he
had been detained; Ms. Bosley’s investigator had fabricated a case against him because
Ms. Bosley “brought me to the investigator without telling me that he was my
investigator”; he had asked for and not received “the transcriptions of all the court dates,
the doctor’s reports and the charges from the D.A.”; he had asked Ms. Bosley “many
times” for her help in comparing the preliminary hearing transcript with the police report;
and Ms. Bosley had not let him select the jurors during the competency proceedings.
Defendant conceded that at the time of the April 9, 2014, hearing, he had seen the
police report. Defendant also stated that he had “lost” the doctor’s report, the preliminary
court “date” and “the police report.” The trial court explained to defendant that “it is
typically the practice of attorneys not to give all the papers to the defendant because of a
concern that the papers would be lost or taken by someone else.”
Ms. Bosley responded to defendant’s statements by stating that her investigator
interviewed “all the witnesses” and also interviewed people at defendant’s request; she
had met with defendant on “numerous occasions,” and had met with him on “no less
than” seven occasions to prepare him to testify if he chose to do so; on three occasions
she gave defendant copies of discovery but he “repeatedly lost” them,” and that day she
gave defendant “an additional copy” of the discovery so he could prepare for trial; she
had “repeatedly” given defendant the jury instructions in both English and Spanish so
9
that he could study them; although defendant was very concerned that some witnesses’
statements were not true and he did not want those statements to come into evidence, she
explained to him that the prosecution subpoenaed the witnesses and it was for the jury to
determine the credibility of the witnesses; her investigator has never met with defendant,
had “no opinion” on defendant “one way or another,” and the investigator “only
documented what other people have said about the situation and [defendant]”; she
advised defendant that she could “point out discrepancies” between the police report and
the preliminary hearing transcript during the trial, but it would not assist defendant in
preparing for his testimony; and selecting the jurors during the competency proceedings
was a decision for her to make, and defendant wanted jurors who were unavailable.
The trial court told defendant that Ms. Bosley was well prepared for trial, the
investigator was working on defendant’s behalf, and Ms. Bosley was prepared to
continue to give defendant documents even though he previously lost the documents Ms.
Bosley had given him. It denied defendant’s Marsden motion finding that Ms. Bosley
was adequately representing defendant.
d) April 22, 2014, hearing
At the April 22, 2014, hearing, defendant made another Marsden motion, stating
that he wanted to replace Ms. Bosley with another attorney because: Ms. Bosley “made”
him sign “many documents” when defendant was not in his “right mind”; he wanted a
different attorney who would “investigate everything that [had] happened to [him]”; Ms.
Bosley was “fabricating something against” him because she told him that the
investigator had family that was close to the witnesses with whom he sent the investigator
to speak and they were “false witnesses”; he asked Ms. Bosley to look at “the witness”
because he was “missing one eye” and that there was a discrepancy between “the report”
and testimony at the preliminary hearing, but Ms. Bosley “didn’t want to” do it; and Ms.
Bosley “changed courts on a temporary basis” and told defendant “when he was in court
to sign a paper.”
10
Ms. Bosley responded to defendant’s statements by stating that her investigator
had interviewed “all of the witnesses” in the area of whom she was aware, not just the
witnesses to the actual shooting; she reviewed the medical records of defendant and the
victim; she had met with defendant on numerous occasions, including meeting with him
to discuss the results of her investigations, discuss his possibly testifying, and on at least
two occasions to give him discovery; she had given defendant copies of the jury
instructions, including the instructions for “certain defenses”; she had advised defendant
that in order to have the jury instructed on those defenses, defendant would have to
testify; the only document that defendant had signed was a stipulation for a commissioner
to hear the preliminary hearing and “he probably signed a release for the medical records
so I could review them”; “[defendant] feels that the information [the] witnesses gave to
my investigator was false,” and defendant “is basically accusing me of fabricating a case
[] because I’m reporting to him what my investigator had told me eye witnesses have
said”; regarding the one-eyed witness, “this is the one who knows [defendant] as well as
the victim” and because defendant had admitted that he fired the gun, identity was not an
issue; she had “no idea” to what defendant was referring when he talked about “changing
courts” “other than” that his preliminary hearing was held in one department, and after he
was held to answer, his case was assigned to a different department; she had gone over
“the reports” with defendant “numerous times”; and she had explained to defendant that
the police report and the preliminary hearing report would not be considered by the jury
unless they were used for impeachment, and the jury’s decision would be based on “live
testimony” and defendant’s testimony if he chose to testify with it being up to the jury as
to what witness to believe.
The trial court explained to defendant that the change in courtrooms was the way
“the system” worked and had nothing to do with Ms. Bosley. It denied defendant’s
Marsden motion, finding that “counsel has properly represented the defendant.”
11
4. Analysis
Defendant failed to show that the trial court’s denial of his Marsden motions was
an abuse of discretion. Defendant did not make a “‘“substantial showing”’” that the trial
court’s denial of his Marsden motions were likely to result in constitutionally inadequate
representation. (People v. Streeter, supra, 54 Cal.4th at p. 230.)
Defendant contends that the attorney-client relationship between him and Ms.
Bosley “erod[ed] and there existed an irreconcilable conflict” between them because Ms.
Bosley filed declarations resulting in competency hearings; on one occasion the Sheriff’s
Department told Ms. Bosley that defendant refused to speak with her to prepare the case;
defendant had told Ms. Bosley that he wanted to represent himself; and defendant was
unable to communicate sufficiently with Ms. Bosley. There is no indication in the record
that Ms. Bosley or defendant’s relationship with her was the reason the Sheriff’s
Department told Ms. Bosley that defendant refused to speak with her or that defendant
was unable to speak to Ms. Bosley sufficiently. Defendant’s complaints do not constitute
a substantial showing that they would likely result in constitutionally inadequate
representation. Lack of trust in or inability to get along with counsel is not a sufficient
basis to grant a motion pursuant to People v. Marsden, supra, 2 Cal.3d 118. (People v.
Berryman (1993) 6 Cal.4th 1048, 1070, overruled on another point in People v. Hill
(1998) 17 Cal.4th 800, 823, fn. 1.)
Defendant contends that because Ms. Bosley “had difficulty explaining” to him
that selecting jurors for his competency proceedings was her decision and that she was
not creating a case against him when she advised him what the witnesses told her
investigator, an irreconcilable conflict exited between him and Ms. Bosley such that
ineffective representation was likely to result. Despite defendant’s contention, neither
defendant nor Ms. Bosley stated during the Marsden hearings that Ms. Bosley attempted
to explain these matters to defendant, successfully or otherwise. In addition, an
attorney’s difficulty in explaining an issue to the client does not, without more, constitute
an irreconcilable conflict, nor does it mean that ineffective representation is likely to
result.
12
Defendant argues that the trial court erred in denying his Marsden motions
because Ms. Bosley did not subpoena the vision and hearing records of the percipient
witness, Jose Elias. There were two Marsden hearings at which defendant said that he
asked Ms. Bosley to scrutinize an adverse witness—the first Marsden hearing held on
December 12, 2012, concerning the “alleged victim,” Juan Jose, and the last Marsden
hearing held on April 22, 2014 presumably concerning Jose Elias. That is, there was only
one Marsden hearing at which he said that he asked his counsel to scrutinize Jose Elias.
Defendant contends that Ms. Bosley’s failure to subpoena the vision and hearing
records of Jose Elias is more than a tactical decision. Defendant reasons that because he
was relying upon a defense of self-defense, and because defendant’s version of the facts
prior immediately prior to the shooting differed from Juan Jose’s version of facts, Jose
Elias’ ability to perceive the events were relevant. According to defendant, Ms. Bosley
therefore should have, at defendant’s insistence, obtained Jose Elias’ vision and hearing
records. Defendant argues that Ms. Bosley’s representation to the trial court that the
vision and hearing records were not relevant because defendant’s identity as the shooter
was not at issue reflected “a disregard for consideration of [defendant’s] concerns” and “a
breakdown in communication.” This, defendant argues, “was clearly an irreconcilable
conflict that ineffective representation was likely to result.” Defendant’s contention that
his counsel, Ms. Bosley, should have subpoenaed the vision and hearing records of Jose
Elias is a disagreement over tactical decisions and that does not constitute error by the
trial court in denying the Marsden motions. (People v. Dickey, supra, 35 Cal.4th at p.
922.)
In addition, defendant did not state that he asked Ms. Bosley to obtain Jose Elias’s
vision and hearing records. He merely told the trial court that he asked Ms. Bosley to
“look[] at” him. Moreover, there is no evidence that Ms. Bosley disregarded defendant’s
concerns that Jose Elias’s vision and hearing records would or may disclose that Jose
Elias was unable to accurately perceive the events that transpired during the shooting
incident. At most, it appears to have been a misunderstanding regarding defendant’s
concerns, and such a misunderstanding does not amount to an “irreconcilable conflict.”
13
Defendant also did not establish that had Ms. Bosley obtained the vision and hearing
records of Jose Elias that they would have established that he was unable to accurately
perceive the incident events, beyond his purportedly having only one eye.
The trial court may accept defendant’s counsel’s explanation of the events at the
Marsden hearings if there is a credibility question between a defendant and his counsel.
(People v. Jones (2003) 29 Cal.4th 1229, 1245.) The trial court essentially found that
Ms. Bosley’s description of the relationship between her and defendant was more
accurate than defendant’s description. As our Supreme Court explained, “If a
defendant’s claimed lack of trust in, or inability to get along with, an appointed attorney
were sufficient to compel appointment of substitute counsel, defendants effectively
would have a veto power over any appointment, and by a process of elimination could
obtain appointment of their preferred attorneys, which is certainly not the law.
[Citations.]” (Id at. p. 1246; People v. Welch, supra, 20 Cal.4th at p. 728 [“A defendant
does not have the right to present a defense of his own choosing, but merely the right to
an adequate and competent defense”].) The trial court did not abuse its discretion in
denying defendant’s Marsden motions.
B. CALCRIM No. 3472
Defendant claims that the trial court erred in instructing the jury with CALCRIM
No. 3472 because the instruction had no application to the facts and it misstated the law.
We disagree.
1. Applicable Law
“A trial court must instruct the jury . . . on all general principles of law . . . ‘“that
are necessary for the jury’s understanding of the case.” [Citation.]’” (People v. Burney
(2009) 47 Cal.4th 203, 246.) We assume that the jurors are intelligent persons and
capable of understanding the jury instructions. (People v. Johnson (2009) 180
Cal.App.4th 702, 707.) “‘“Instructions should be interpreted, if possible, so as to support
14
the judgment rather than defeat it if they are reasonably susceptible to such
interpretation.” [Citation.]’ [Citation.]” (Ibid.)
“A trial court must give a requested instruction only if it is supported by
substantial evidence, that is, evidence sufficient to deserve jury consideration.
[Citations.]” (People v. Marshall (1997) 15 Cal.4th 1, 39; People v. Ramirez (2015) 233
Cal.App.4th 940, 948-949.) The trial court’s duty is “to ensure that the instructions
provide a complete and accurate statement of the law.” (People v. Ramirez, supra, 233
Cal.App.4th at p. 949.)
2. Background Facts
During discussions regarding jury instructions, the prosecutor requested that the
jury be instructed with CALCRIM No. 3472.7 The prosecutor stated, “I believe it is
supported, because the victim testified to the defendant coming up to him, and in my
view or at least there is evidence from which the jury could find that he provoked
whatever response, if any, that the victim had. So the jury needs to know that if they find
those facts to be true, that self-defense would not apply. For example, if they were to
accept as true the defendant’s initial statements to the police as stipulated to or stipulated
that it was told, potentially this instruction would apply. Because they might believe that
the victim put his hands on the defendant first. But they might also believe that that only
happened after the defendant confronted him. Because that is essentially what it says in
his statements. And I think under those facts, this instruction would apply.
[¶] . . . [¶] [Juan Jose] didn’t say he did anything. There would be no self-defense at all
under [Juan Jose’s] testimony alone. However, I do think . . . the following scenario is
something the jury could believe happened, which based on putting the various
statements and the victim’s statements together, which is that the defendant armed with a
handgun went to confront the victim, started basically talking trash to him, again armed
7
CALCRIM No. 3472 provides 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.”
15
with a handgun. Then based on what he said, the victim shoves him and then the
defendant shoots him. And I think under that state of facts, which I think is supported by
the evidence as one potential version of what happened here, under that state of facts, this
instruction would apply, arguably.” The prosecutor stated that the victim testified that
defendant “confronted” him and “started talking trash.” Defendant also told the police
that he was “looking to confront” the victim.
Defendant’s counsel objected and said that the jury instruction was designed for a
situation when an individual purposefully provokes a response from a victim to attack the
individual, and the evidence does not reflect that this occurred. Defendant’s counsel
argued that none of the evidence established that defendant contrived a situation to claim
self defense.
The trial court found that CALCRIM 3472 was supported by “both the statement
that the defendant gave to the officer, as well as in conjunction with the testimony of the
victim. The trial court instructed the jury pursuant to CALCRIM No. 3472.
3. Analysis
a) Substantial Evidence
Defendant contends that there was not substantial evidence to support CALCRIM
No. 3472 because there no evidence that defendant provoked a use of force by Juan Jose.
Substantial evidence supports instructing the jury with CALCRIM No. 3472.
CALCRIM No. 3472, uses the word “provokes” without qualification. The word
“provokes” in a jury instruction has its usual, common meaning. (People v. Cole (2004)
33 Cal.4th 1158, 1217-1218.) Provocation has been defined to mean “something that
provokes, arouses, or stimulates” (Merriam-Webster’s Collegiate Dict. (11th ed. 2004) p.
1002); provoke means “to arouse to a feeling or action[;] . . . to incite to anger” (ibid.).
Words, without violence or a threat of violence, may be sufficient provocation to
reduce murder to manslaughter. (See People v. Valentine (1946) 28 Cal.2d 121, 140-143
[words alone sufficient]; People v. Manriquez (2005) 37 Cal.4th 547, 583-584
16
[“provocative conduct . . . may be physical or verbal, but the conduct must be sufficiently
provocative that it would cause an ordinary person of average disposition to act rashly or
without due deliberation and reflection”].)
The parties stipulated a police officer would testify defendant told him he heard
Juan Jose and Jose Elias were “going to meet up.” Defendant said he considered it an
opportunity “to confront” Juan Jose about “talking bad about him” and “spreading
rumors.” Defendant also told the police officer defendant attempted “to confront” Juan
Jose.
Juan Jose testified that immediately before defendant shot him, defendant
approached him, called him a “son of a bitch,” accused him of “saying crazy things
about” defendant, and “came up” to where Juan Jose was standing so close as to require
Juan Jose to place his hands on defendant’s chest “to create distance, because [defendant
was angry” and Juan Jose did not want defendant “to [lunge] at” him. The jury
reasonably could conclude that defendant provoked a use of force by Juan Jose.
b) Legally Erroneous
Defendant contends that under the facts of this case CALCRIM No. 3472 does not
accurately state the law. Defendant relies on People v. Ramirez, supra, 233 Cal.App.4th
940, which held that although “CALCRIM No. 3472 states a correct rule of law in
appropriate circumstances,” (People v. Ramirez, supra, 233 Cal.App.4th at p. 947) “under
the facts before the jury” in that case it “did not accurately state governing law.” (Ibid.)
In that case, “the instructions [which instructions included both CALCRIM No. 3472 and
CALCRIM No. 3471] and 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.” (People v. Ramirez, supra, 233 Cal.App.4th
at p. 953). The court stated, “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.’ [Citation.]” (Id. at p. 943.) In other words, the fact
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that defendant intends to provoke a fistfight does not mean the other person is entitled to
use deadly force or a deadly weapon in response to the provocation. Defendant reasons
that in this case CALCRIM No. 3472 does not accurately state the law because the jury
could believe based on the evidence that defendant at most intended to provoke a fistfight
and the instruction erroneously directed the jury to conclude that defendant had no right
of self-defense against an attack by Juan Jose even if defendant’s provocation was
contrived to only use non-deadly force.
We need not decide whether CALCRIM No. 3472 accurately states the law under
the facts of this case as any error in the instruction was harmless. “‘“[M]isdirection of
the jury, including incorrect . . . instructions that do not amount to federal constitutional
error are reviewed under the harmless error standard articulated” in [People v.] Watson
[(1956) 46 Cal.2d 818]’” under which “‘a defendant must show it is reasonably probable
a more favorable result would have been obtained absent the error.’ [Citation.]” (People
v. Beltran (2013) 56 Cal.4th 935, 955.)
Defendant told a police officer on the day of the shooting that he attempted to
confront Juan Jose. He also told the officer that Juan Jose “pushed” him and he then “lost
control of his thoughts” and shot Juan Jose. Although defendant testified that Juan Jose
put his hands around defendant’s neck prior to the shooting, he admitted that he did not
advise the officer on the day of the shooting that Juan Jose choked him. It is not
reasonably probable that the jury would have credited defendant’s self-serving testimony
that he shot Juan Jose in self-defense, even had the jury not been instructed with
CALCRIM No. 3472. Similarly, any error was harmless beyond a reasonable doubt.
(Chapman v. California (1967) 386 U.S. 18, 24.)
C. Correction Regarding Defendant’s Presentence Custody Credits
Defendant contends, and the Attorney General agrees, that the judgment must be
modified, and the abstract of judgment must be amended, to reflect that defendant is
entitled to receive 1259 in total presentence credits instead of 1244 in presentence credits.
We agree.
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The trial court awarded defendant a total of 1,244 days of custody credit consisting
of 1082 days of actual custody credit and 162 days of conduct credit. Defendant however
was in custody for 1,095 days. Because pursuant to section 2933.1 defendant is subject
to a 15 percent conduct credit limitation, defendant should have received 164 days of
conduct credit. Thus, the judgment should be modified, and the abstract of judgment
must be amended, to reflect that defendant is entitled to receive a total of 1,259 days of
custody credit consisting of 1,095 days of actual custody credit and 164 days of conduct
credit.
D. Amending the Abstract of Judgment to Reflect That Defendant Was
Convicted by a Jury
Defendant contends, and the Attorney General agrees, that the abstract of
judgment must be amended to reflect that defendant was convicted by a jury instead of by
plea. We agree. The abstract of judgment must be amended accordingly.
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DISPOSITION
The matter is remanded for the trial court to modify the judgment and amend the
abstract of judgment to reflect that defendant is entitled to receive a total of 1,259 days of
custody credit consisting of 1,095 days of actual custody credit and 164 days of conduct
credit, and to amend the abstract of judgment to reflect that defendant was convicted by a
jury. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MOSK, Acting P. J.
We concur:
KRIEGLER, J.
BAKER, J.
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