Filed 9/28/20 P. v. Semlinger CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B296258
(Super. Ct. No. 2016019907)
Plaintiff and Respondent, (Ventura County)
v.
MARK STEVEN
SEMLINGER,
Defendant and Appellant.
A jury found Mark Steven Semlinger guilty of assault with
a deadly weapon (Pen. Code,1 § 245, subd. (a)(1)) and a
misdemeanor battery (§ 243, subd. (e)(1)). The trial court found
that Semlinger had previously been convicted of a serious felony,
(§ 667, subd. (a)(1)), and that the previous conviction constituted
a strike within the meaning of the three strikes law (§§ 667,
subds. (c)(1) & (e)(1); 1170.12, subds. (a)(1) & (c)(1)).
All statutory references are to the Penal Code unless
1
otherwise stated.
The trial court sentenced Semlinger to the low term of two
years for the assault, doubled to four years under the three
strikes law, plus a consecutive five years for the prior serious
felony conviction, for a total of nine years. The court sentenced
Semlinger to a concurrent term of 90 days on the misdemeanor.
We affirm.
FACTS
Richard Weyrauch owned a house in Simi Valley.
Weyrauch rented rooms in the house. On May 21, 2016, James
Williams, Heather Nesbitt, and her young child were among
those living in the house with Weyrauch. Semlinger did not live
there. Nesbitt was Semlinger’s fiancée and the young child was
theirs.
On the night of May 21, 2016, Nesbitt and Semlinger were
arguing loudly outside the house. Nesbitt had asked Semlinger
not to come to the house, but Semlinger wanted to see his child.
The argument could be heard inside. Weyrauch turned on
security cameras that were positioned around the outside of his
home. Weyrauch and Williams went out to the front porch to try
to get the couple to stop arguing. They were not successful, and
the arguing continued.
Semlinger grabbed Nesbitt and dragged her across the
driveway and away from the house. Semlinger is six feet one
inch tall and weighs 200 pounds. Nesbitt is five feet three inches
tall and weighs 130 pounds.
Williams, who was in the house watching through the
security cameras, became agitated. Weyrauch warned Williams
to stay out of the argument. Nevertheless, Williams came out of
the house hollering. Williams punched Semlinger in the face and
2
the two fought. During the fight, Semlinger took a knife from his
pocket and began swinging it at Williams and Williams retreated.
Weyrauch called 911. A police officer responded. During
the officer’s investigation, he found a black folding knife on an
outside pillar one residence away from Weyrauch’s house.
Semlinger’s DNA was on the knife. Williams had a bump and a
small cut on his head, but the officer did not notice any blood on
the knife.
Williams died of an unrelated cause prior to trial.
DISCUSSION
I.
Mutual Combat Instruction
Semlinger contends the trial court erred in giving a mutual
combat instruction.
Over Semlinger’s objection, the trial court instructed the
jury with CALCRIM No. 3471 as follows: “A person who engages
in mutual combat or who starts a fight has a right to self-defense
only if: [¶] One, he actually and in good faith tried to stop
fighting. [¶] Two, he indicated by word or conduct to his
opponent in a way that a reasonable person would understand
that he wanted to stop fighting and that he had stopped fighting.
[¶] Three, he gave his opponent a chance to stop fighting. [¶] If
the defendant meets these requirements, he then has a right to
self-defense if the opponent continued to fight. [¶] A fight is
mutual combat when it began or continued by mutual consent or
agreement. That agreement must be expressly stated or implied
and must occur before the claim of self-defense arose.”
Semlinger argues there is no substantial evidence of
mutual combat. He cites People v. Ross (2007) 155 Cal.App.4th
1033, 1047. There the court stated that for a mutual combat
3
instruction, “there must be evidence from which the jury could
reasonably find that both combatants actually consented or
intended to fight before the claimed occasion for self-defense
arose.” Semlinger claims a mutual combat instruction is not
supported by the facts of this case because there was no evidence
of a prior mutual agreement to fight. Semlinger argues that
Williams initiated the fight.
But the agreement need not exist prior to the fight. It only
needs to exist before the claimed occasion for self-defense arose.
The prosecution’s theory was that Williams had a lawful right to
throw the first punch in defense of Nesbitt. Semlinger had no
right to claim self-defense arising from that punch. The fight
that ensued thereafter could be viewed as by the mutual consent
of the combatants.
If the prosecution’s theory is a bit too tenuous, any error in
giving the instruction was harmless. We presume the jury
followed the instruction. (People v. Lopez (2020) 46 Cal.App.5th
505, 525.) Here the jury was properly instructed with CALCRIM
No. 3471 that for mutual combat the agreement must occur
before the claim of self-defense arose. If, as Semlinger argues,
there was no evidence of mutual combat, the jury would consider
the instruction inapplicable. The jury was instructed that some
of the instructions may not apply depending on the findings of
fact, and to follow the instructions that do apply. (CALCRIM No.
200.)
An instruction not supported by the evidence is subject to
the harmless error analysis in People v. Watson (1956) 46 Cal.2d
818, 836. (People v. Chism (2014) 58 Cal.4th 1266, 1299.) Here it
is not reasonably probable that Semlinger would have obtained a
more favorable result had the instruction not been given.
4
Semlinger’s reliance on People v. Ross, supra, 155
Cal.App.4th 1033, is misplaced. In Ross, the trial court did not
instruct the jury on the meaning of mutual combat. Here the
jury was properly instructed.
II.
Trespass Instruction
Semlinger contends the trial court erred in giving
CALCRIM No. 3475, instructing on the right of an occupier of a
home to use reasonable force to make a trespasser leave.
Semlinger claims the instruction was not applicable because he
was not a trespasser.
Entry or remaining on any residential place without the
consent of the owner or a person in lawful possession constitutes
a trespass. (§ 602.5, subd. (a).)
Semlinger argues his fiancée, child, sister, and friends lived
at the house. But he cites no authority for the proposition that
having friends or relatives living on the property excuses a
trespass. He also argues that he remained outside the house in
an area understood to be where members of the public such as
salespersons and religious advocates are invited. But he was not
on the property as a salesperson or religious advocate. He was
arguing with his fiancée. He was not invited to be on the
premises for that purpose.
The jury could reasonably conclude that Semlinger did not
enter the property with anyone’s express or implied consent, but
to confront his fiancée about seeing his child against his fiancée’s
wishes. The jury could also conclude that he was not welcome
there for that purpose. Nesbitt had asked that he not come to the
house. If Semlinger had any doubt about his status as a
trespasser, it should have been dispelled when Weyrauch and
5
Williams yelled at Semlinger from the front porch to stop
arguing. Nevertheless, Semlinger remained on the premises and
continued arguing.
There was substantial evidence to support giving
CALCRIM No. 3475.
III.
Self-defense
Semlinger contends there is no substantial evidence that he
was not acting in self-defense.
The jury was instructed that to find Semlinger guilty of
assault with a deadly weapon, the prosecution must prove he did
not act in self-defense. (CALCRIM No. 875.) The jury was also
instructed that the defendant acted in self-defense if: he
reasonably believed that he was in imminent danger of suffering
bodily injury or being touched unlawfully; he reasonably believed
that the immediate use of force was necessary to defend against
that danger; and he used no more force than was necessary to
defend against that danger. (CALCRIM No. 3470.)
Semlinger argues that he reasonably believed that the
immediate use of force was necessary because he had just been
punched in the face, and that he used no more than was
necessary because Williams was bigger than he was and he did
not stab Williams.
Semlinger’s argument is based on a view of the evidence
most favorable to himself. But that is not how we view the
evidence. We view the evidence in a light most favorable to the
prosecution to determine whether any rational trier of fact could
have found the crime beyond a reasonable doubt. (People v. Earp
(1999) 20 Cal.4th 826, 887.) That the evidence might reasonably
6
be reconciled with a contrary finding does not render the evidence
insubstantial. (Id. at pp. 887-888.)
Here, although Williams might have outweighed
Semlinger, Semlinger was not a small man. He was six feet one
inch tall and weighed 200 pounds. Williams was unarmed. If the
jury concluded Semlinger needed to defend himself, it could
reasonably conclude he used more force than necessary when he
brought a knife to a fist fight.
Semlinger’s reliance on People v. King (1978) 22 Cal.3d 12
is misplaced. In King, the trial court refused to give a
self-defense instruction. Our Supreme Court reversed, holding
that substantial evidence supported the instruction. (Id. at
p. 27.)
Here, unlike in King, the trial court instructed on
self-defense. The jury simply did not find the evidence credible.
IV.
Evidence of Deadly Weapon
Semlinger contends there is no substantial evidence to
support a finding of an assault with a deadly weapon. He claims
the video’s quality is too poor to see whether he had an open
knife.
But a knife with Semlinger’s DNA on it was found one
house from the fight scene. In addition, if the jury did not clearly
see an open knife, it could determine from the way the
combatants were moving that Semlinger was threatening
Williams with an open knife.
7
V.
911 Call
Semlinger contends the statement from the 911 call that he
has a knife should not have been admitted into evidence.
During the 911 call, Weyrauch told the operator that
Semlinger has a knife. Weyrauch said he did not see the knife,
but that someone told him Semlinger has one. Semlinger argues
the statement was inadmissible under the spontaneous
statement exception to the hearsay rule. (Evid. Code, § 1240.)
Even assuming the evidence was inadmissible, any error
was harmless. The jury saw the security video of the fight. It
could determine for itself whether Semlinger had a knife.
Moreover, a knife with Semlinger’s DNA on it was found one
house away from the scene of the fight.
VI.
Sentencing
Semlinger contends the trial court abused its discretion in
declining to reduce the charge of an assault with a deadly weapon
to a misdemeanor; in declining to strike his prior conviction for
purposes of the three strikes law; and in declining to strike his
five-year enhancement for a prior serious felony conviction
pursuant to section 667, subdivision (a).
(a) Reduce to misdemeanor
Section 245, subdivision (a)(1) is a “wobbler”; that is, it can
be punished either as a felony or misdemeanor. Section 17,
subdivision (b) gives the trial court the discretion to treat the
offense as a misdemeanor. In exercising its discretion under
section 17, subdivision (b), the court may consider the facts
surrounding the offense and the character of the offender.
(People v. Tran (2015) 242 Cal.App.4th 877, 885.)
8
Semlinger points out that he did not harm Williams with
the knife. That is undoubtedly why the court imposed the low
term for the offense. But it does not require the court to reduce
the offense to a misdemeanor. The court may also consider the
character of the offender.
At the sentencing hearing, the trial court noted that
Semlinger had a 24-year history of contact with the criminal
justice system with 23 prior convictions dating from 1995. The
court acknowledged that some of the convictions occurred when
Semlinger was very young, and some were for drug offenses that
would be misdemeanors today. The court stated, “But that
doesn’t change the fact that it is a long body of work.” The court
also noted that Semlinger was facing sentencing on two unrelated
charges.
The record shows that the trial court thoroughly considered
all the facts, and had a rational basis for denying Semlinger’s
section 17, subdivision (b) motion. The court did not abuse its
discretion.
(b) Second strike
Semlinger has a prior serious felony conviction, a first
degree burglary. (§ 1192.7, subd. (c)(1)(18).) Under the three
strikes law, the trial court must double the term of the current
offense. (§§ 667, subd. (e)(1); 1170.12, subd. (c)(1).)
The trial court, however, has the discretion to strike the
prior felony conviction in the interest of justice. (People v.
Superior Court (Romero) (1996) 13 Cal.4th 497.) In deciding
whether to strike the prior conviction, the court must consider
the defendant’s present felony conviction, his prior convictions,
and his character to determine whether he may be deemed
outside the spirit of the three strikes law. (People v. Williams
9
(1998) 17 Cal.4th 148, 161.) The spirit of the three strikes law is
to ensure longer prison sentences for those who commit a felony
and who have previously been convicted of a serious or violent
felony. (People v. Strong (2001) 87 Cal.App.4th 328, 337.)
Semlinger’s lengthy and almost unbroken history of criminal
convictions shows he is not outside the spirit of the three strikes
law. (Id. at pp. 331-332 [a defendant who falls within the letter
of the three strikes law does not take himself outside its spirit by
the commission of a virtually uninterrupted series of nonviolent
felonies and misdemeanors over a lengthy period].)
(c) Prior serious felony
Section 667, subdivision (a)(1) provides a five-year sentence
enhancement for each prior serious felony conviction. The trial
court has the discretion to strike the enhancement. But for the
reasons previously stated, it did not abuse its discretion in
refusing to do so.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
PERREN, J.
TANGEMAN, J.
10
Anthony J. Sabo, Judge
Superior Court County of Ventura
______________________________
Scott H. Bentley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr. and David F.
Glassman, Deputy Attorneys General, for Plaintiff and
Respondent.