Filed 1/28/21 P. v. Aviles CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076393
Plaintiff and Respondent,
v. (Super. Ct. No. SCS304235)
JOSE AVILES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Roderick Ward Shelton, Judge. Affirmed.
Bruce L. Kotler, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters and Julie L.
Garland, Assistant Attorneys General, Charles C. Ragland and Marvin E.
Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Jose Aviles of assaulting C.K. with a deadly weapon
(Pen. Code,1 § 245, subd. (a)(1); count 1) and assaulting J.M. by means likely
1 Undesignated statutory references are to the Penal Code.
to produce great bodily injury (§ 245, subd. (a)(4); count 2). As to count 2, it
found true an allegation that Aviles personally inflicted great bodily injury on
J.M., who was not an accomplice (§ 1192.7, subd. (c)(8)). The court suspended
imposition of sentence and placed Aviles on formal probation for three years
on certain terms and conditions, including that he serve 270 days in the
sheriff’s custody.
Aviles contends the court prejudicially erred by instructing the jury
with CALCRIM No. 3471 (“Right to Self-Defense: Mutual Combat or Initial
Aggressor”) as modified, and CALCRIM No. 3472 (“Right to Self-Defense:
May Not Be Contrived”) because the instructions prevented the jury from
properly considering his self-defense claims. He alternatively contends his
trial counsel provided ineffective assistance by failing to request modification
of those instructions. Aviles also contends that his probation conditions
regarding the search of computers and recordable media, the imposition of a
curfew, and requiring him to report his contacts with law enforcement are
unconstitutionally overbroad. He contends the latter condition is additionally
vague
The People concede the court’s modification of CALCRIM No. 3471 was
erroneous, but argue that the error was harmless beyond a reasonable doubt.
We agree and affirm.
FACTUAL BACKGROUND
Prosecution Case
On September 16, 2018, M.M. went to a laundromat in Chula Vista,
California. Her father, J.M., who was 62 years old and small in stature,
parked his car nearby. While M.M. was parking her car, Aviles drove past
her in his pickup truck and twice honked the loud airhorn he had installed on
his vehicle. The horn scared M.M., and her son started crying.
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M.M. was angry and walked over to Aviles’s truck to seek an apology.
But Aviles refused to lower his window and instead “flipped off” M.M. and
stuck out his tongue. As M.M. was walking away, Aviles got out of his
vehicle and walked in the same direction as M.M., yelling insults and
profanities at her. Aviles called M.M. a “welfare bitch” and other insulting
names, said he did not “give a fuck” about M.M. or her “fucking kid,” and that
he had his own washing machine at home and did not have to wash with her
kind of people.
J.M. yelled at Aviles, “You need to respect the ladies” and, “You think
you are so bad because you have a big truck and a dumb horn?” Aviles yelled
profanities at J.M. J.M. testified Aviles got “real mad” and walked quickly
toward J.M.’s car. From about five feet away, Aviles ran towards J.M. J.M.
reached into his car and removed a steering wheel lock (“the club”) that was
approximately two-feet long and weighed three and a half pounds. J.M.
raised the club to his face to protect himself. J.M. did not try to hit Aviles
with the club. J.M. remembered that Aviles punched him in the face once;
however, other witnesses testified Aviles punched J.M. more than once. One
witness said Aviles managed “[d]efinitely three good hits” on J.M. Aviles also
took the club from J.M.
C.K., a bystander who weighed approximately 330 pounds, broke up
the fight by pushing Aviles, who weighed 200 pounds. Aviles hit C.K. in the
head with the club. C.K. repeatedly told Aviles to drop the club, but he
refused. M.M. finally removed the club from Aviles while C.K. held him.
Aviles screamed at C.K. to let him go. C.K. eventually let him go. Aviles
drove away.
J.M. was taken to the hospital, as his dentures were broken and his
nose and mouth were bleeding. Aviles had fractured J.M.’s left cheekbone.
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Defense Case
Aviles testified he realized during the verbal altercation with J.M. that
“these people are heated, and I didn’t want them hurting my truck”;
therefore, he decided to return to his truck. Aviles noticed J.M. reaching into
his car for what Aviles thought was a gun. Aviles became scared but elected
not to run away because he thought J.M. would shoot him in the back.
Instead, he ran towards J.M., grabbed the club while J.M. held it in mid-
swing, and punched J.M. once. Immediately afterwards, Aviles felt someone,
later identified as C.K., grab his throat from behind, pick him up, and drag
him. Aviles felt terrified and hit C.K. with the club. Mere seconds passed
from the moment Aviles rushed J.M. until C.K. subdued Aviles.
Rebuttal
The People introduced a transcript of a police officer’s telephone call
with Aviles while Aviles was driving away from the scene. In it, Aviles never
mentioned that he thought J.M. had a gun.
Counsels’ Arguments
The prosecutor argued to the jury: “[The witnesses] are all consistent
about an attack, that [Aviles] was an aggressor. He wasn’t someone who was
reacting in self-defense to [J.M.] coming after him from behind his car door.
[J.M.] was pinned back up against his door. Self-defense may not be
contrived. You don’t get to start a fight. You don’t get to put someone in
danger by attacking them and then claim self-defense because they are
protecting themselves or they are fighting back. And when you think about
the self-defense instruction, when you think about the elements that you are
asked to look at, think about how those apply to [J.M.] Think of them how
they apply to the man [J.M.] standing behind his door sticking up for his
daughter while this other man [Aviles], angry, yelling, demeaning comes
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running around the car at him ready to fight as [J.M.] said ‘I thought [Aviles]
was going to attack me’ and he did. Self-defense applies to [J.M.] [J.M.] is
pulling up the club to protect himself from this person who is coming at him,
from this person who this didn’t even give a momentary pause. [Aviles] just
kept punching and took it out of his hands.”
As to Aviles’s attack on C.K., the prosecutor argued in closing, “[Aviles]
swung the club at [C.K.] for a reason. And when [Aviles] acted, he realized
that he had the present ability to apply force with a deadly weapon. He knew
he had it in his hand. He swung it. That is why he swung it. He knew he
had the present ability. He knew he had that weapon in his hand. He knew
what it was. He knew it was a weapon. He knew it was a heavy metal-like
substantial object. He had it in his hand.”
In rebuttal, the Prosecutor argued, “[Aviles] was the aggressor. He was
the attacker. And once he attacked [J.M.], that is it. And when [C.K.]
stepped in, it didn’t change the scenario so much that [Aviles] now gets to
claim self-defense against [C.K.]. Just because someone goes to protect a
smaller person doesn’t mean you get to hit that person when you started the
fight, when you attacked someone.”
Defense counsel reiterated to the jury the portion of CALCRIM No.
3471 that says, “However, if the defendant used only non-deadly force and
the opponent responded with such sudden and deadly force that the
defendant could not withdraw from the fight, then the defendant had the
right to defend himself with deadly force and was not required to stop
fighting, communicate the desire to stop to the opponent or give the opponent
the chance to stop fighting.” Defense counsel also argued: “The person that
brought this [club] to the fight was [J.M.] He told you he pulled it out and we
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will describe in a bit how he did it and what he did with this. He brought
this, not Mr. Aviles.”
Defense counsel argued that Aviles attacked C.K. in self-defense: “And
all of a sudden a third man [C.K.], or a third person because [Aviles] didn't
know who it was, with great force grabs [Aviles] and starts pulling him back.
Well, what would the reaction be there? You don't even see it. And [Aviles]
swings back and hits [C.K.] in the head. [Aviles] was scared. He was trying
to defend himself, something he told you.”
DISCUSSION
I. Instructional Errors
The pattern version of CALCRIM No. 3471’s opening sentence states,
“A person who (engages in mutual combat/ [or who] starts a fight) has a right
to self-defense only if: . . . .” Here, the court’s modified instruction to the jury
stated the correct title: CALCRIM No. 3471 [“Right to Self-Defense: Mutual
Combat or Initial Aggressor”]; however, the court omitted the words, “or who
starts a fight” from the body of the instruction.
Aviles argues, “CALCRIM No. 3471 as modified by the court did not
instruct on [his] right to self-defense in the face of sudden use of deadly force
by [J.M.] if the jury found that [Aviles] was the initial aggressor using only
non-deadly force.” (Emphasis omitted.) He concedes that “there was
substantial evidence from the prosecution witnesses that [he] was the initial
aggressor.” He also argues the court should not have given the portion of
CALCRIM No. 3471 on mutual combat.
The People concede the court erred by not instructing the jury that
Aviles was the initial aggressor, but claim there was evidence of mutual
combat and the error was harmless beyond a reasonable doubt under
Chapman v. California (1967) 386 U.S. 18, 24. We need not address the
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mutual combat issue because even assuming without deciding that there was
no mutual combat, that would not alter our analysis.
The Court’s Instructions
Without objection, the court instructed the jury with CALCRIM Nos.
3470, 3471 and 3472. CALCRIM No. 3470 provides that “[t]he defendant
acted in lawful self-defense if: one, the defendant reasonably believed that he
was in imminent danger of suffering bodily injury or was in imminent danger
of being touched unlawfully; two, the defendant reasonably believed that the
immediate use of force was necessary to defend against that danger; and,
three, the defendant used no more force than was reasonably necessary to
defend against that danger.”
The court read the modified CALCRIM No. 3471 instruction as follows:
“A person who engages in mutual combat 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 by 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;
and, three, he gave his opponent a chance to stop fighting. If the defendant
meets these requirements, he then had a right to self-defense if the opponent
continued to fight. However, if the defendant used only non-deadly force and
the opponent responded with such sudden and deadly force that the
defendant could not withdraw from the fight, then the defendant had the
right to defend himself with deadly force and was not required to try to stop
fighting, [or] communicate the desire to the opponent or give the opponent a
chance to stop fighting. A fight is mutual combat when it began or continued
by mutual consent or agreement. That agreement may be expressly stated or
implied and must occur before the claim to self-defense arose.”
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The court instructed the jury with CALCRIM No. 3472, which 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.”
Applicable Law
“ ‘ “It is settled that in criminal cases, even in the absence of a request,
the trial court must instruct on the general principles of law relevant to the
issues raised by the evidence. [Citations.] The general principles of law
governing the case are those principles closely and openly connected with the
facts before the court, and which are necessary for the jury’s understanding of
the case.” ’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154.)
We review the correctness of a jury instruction de novo. (People v.
Posey (2004) 32 Cal.4th 193, 218; People v. Bates (2019) 35 Cal.App.5th 1, 9.)
We review the instructions as a whole, and not just parts of a particular
instruction. (People v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on
other grounds in People v. Reyes (1998) 19 Cal.4th 743, 756; People v. Castillo
(1997) 16 Cal.4th 1009, 1016 [reviewing court’s duty is to look at the
instructions as a whole, not in isolation].) A trial court has a duty to instruct
the jury sua sponte on general principles which are closely and openly
connected with the facts of the case. (People v. Gutierrez (2009) 45 Cal.4th
789, 824.) In that regard, a trial court has a sua sponte duty to give
instructions on self-defense if there is substantial evidence to support that
defense and the defense is not inconsistent with the defendant’s theory of the
case. (Ibid.; People v. Elize (1999) 71 Cal.App.4th 605, 615.) Substantial
evidence for this purpose means evidence that a reasonable jury could find
persuasive. (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8; People v. Ross
(2007) 155 Cal.App.4th 1033, 1049-1050.)
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Self-defense requires that the defendant actually and reasonably
believed in the need to defend, which must be objectively reasonable. The
jury must consider all relevant circumstances to determine whether a
reasonable person in the defendant’s position would have believed in the need
to defend. (People v. Jefferson (2004) 119 Cal.App.4th 508, 518.) In
exercising self-defense, however, a person may only use that force which is
necessary in view of the nature of the attack. (People v. Clark (1982) 130
Cal.App.3d 371, 377.) If the defendant started the fight using non-deadly
force and the opponent suddenly escalates to deadly force, the defendant may
defend himself or herself using deadly force. (See People v. Quach (2004) 116
Cal.App.4th 294, 301-302.)
We cannot set aside a judgment on the basis of instructional error
unless, after an examination of the entire record, we conclude that the error
has resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.) “We also
consider the instructions as a whole, the jury’s findings, and the closing
arguments of counsel.” (People v. Larsen (2012) 205 Cal.App.4th 810, 831.)
Analysis
Aviles’s claim is that “assuming [he] attacked [J.M.] without
justification, [he] had the right to self-defense if [J.M.] used sudden deadly
force by quickly arming himself with the club and swinging at [Aviles].” But
he misreads the modified version of CALCRIM No. 3471 given by the trial
court here when he argues that it somehow precluded his self-defense
argument. The basic self-defense instructions are found in CALCRIM No.
3470, also given by the court. CALCRIM No. 3471 is a limitation on the
otherwise applicable self-defense instruction. In its unmodified form, it tells
the jury that a defendant cannot rely on general self-defense principles in two
situations: (1) when the defendant initiates the fight, and (2) when the fight
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is the result of mutual combat. In those two situations, special more limited
rules (as explained in CALCRIM No. 3471) apply.
Here, the court should not have removed the “starts a fight” language
from the version of CALCRIM No. 3471 that it read to the jury. There was
abundant evidence that Aviles started the fight. But Aviles erroneously
assumes that this omission deprived him of the opportunity to argue self-
defense if the jury found he initiated physical violence. To the contrary,
however, if anything the omission worked to his advantage. The jury was
never instructed that Aviles’s right to claim self-defense was limited if he
started the fight. Without the omitted language in the CALCRIM No. 3471
instruction, the only restriction on applying general self-defense principles
was if the jury found that Aviles and J.M. engaged in mutual combat; there
was no express limitation if Aviles was the aggressor.
Of course, a reasonable jury could have recognized the incongruity of
restricting self-defense in cases of “mutual” combat but not when the
defendant initiated the combat. Had it done so, it may well have (correctly)
applied CALCRIM No. 3471 to both situations. Either way, we see no way
the improperly modified instruction prejudiced Aviles.2
In a variation on the same theme, Aviles relies on People v. Ramirez
(2015) 233 Cal.App.4th 940 to argue the trial court erroneously instructed the
jury with CALCRIM No. 3472 that one who provokes a fight with the intent
2 We note that Aviles’s counsel was not deterred from arguing this theory
to the jury: “And all the testimony is consistent. [Aviles] is walking fast,
makes a wide turn, comes back and he rushes [J.M.] when he is at the end of
the sidewalk. Those last four to five, six feet. The length of the car to where
[J.M.] is.” When Aviles “rushed” toward J.M., he initiated the aggression.
Based on the evidence and counsel’s argument, the jury was able to properly
consider Aviles’s self-defense claim even assuming it found he started the
fight.
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to create an excuse to use force does not have the right to self-defense. He
asserts that this instruction, in concert with the prosecutor’s argument that
Aviles had no right to self-defense because Aviles started the attack on J.M.,
prevented the jury from considering whether his use of force on J.M. and C.K.
was justified.
In Ramirez, the court held in the context of an imperfect self-defense
claim that on the facts presented, CALCRIM No. 3472 and the prosecution’s
arguments erroneously required the jury to conclude that in contriving to use
force, even to provoke only a fist fight, defendants entirely forfeited any right
to self-defense. (Ramirez, supra, 233 Cal.App.4th at p. 953.) Aviles’s reliance
on Ramirez is unavailing as that court also stated: “True, CALCRIM No.
3472 states a correct rule of law in appropriate circumstances. Thus, a victim
may respond to an attacker’s initial physical assault with a physical
counterassault, and an attacker who provoked the fight may not in asserting
he was injured in the fray claim self-defense against the victim’s lawful
resistance.” (Ramirez, supra, at p. 947; 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 non-deadly confrontation and the victim responds
with deadly force”].)
Although Aviles’s own testimony that he yelled profanities and insults
at M.M. and J.M., combined with the other witnesses’ testimony, might in
other circumstances support an inference that he provoked the fight with the
intent to create an excuse to use force, the undisputed evidence here
demonstrated that he did much more. As his counsel conceded in closing
argument, Aviles “rushed” at J.M. after J.M. reached inside his car for the
club. This is either initiating a fight or acting in self-defense. It is not
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“provok[ing] a fight or quarrel with the intent to create an excuse to use
force.” (CALCRIM No. 3472.) Even if CALCRIM No. 3472 requires
modification in some instances, this was not one of them, and we can see no
way Aviles was prejudiced by the giving of the instruction. Accordingly, we
conclude the error was harmless beyond a reasonable doubt under Chapman.
Our conclusion that Aviles did not suffer prejudice from any
instructional error disposes of Aviles’s ineffective assistance of counsel claim.
II. Probation Conditions
Aviles challenges three of his probation conditions. During the
pendency of this appeal, this court addressed similar challenges in a case
dealing with mandatory supervision. We pointed out that such challenges
“ordinarily must be raised in the trial court, and if they are not, appellate
review of those conditions is forfeited. [Citation.] The one exception to this
rule involves facial constitutional challenges. [Citation.] The forfeiture rule
does not apply in such a case because a facial constitutional challenge
‘ “present[s] [a] ‘pure question[ ] of law that can be resolved without reference
to the particular sentencing record developed in the trial court’ ” ’ [citation]
and ‘does not require scrutiny of individual facts and circumstances but
instead requires the review of abstract and generalized legal concepts—a
task that is well suited to the role of an appellate court.’ ” (People v. Brand
(2021) ___ Cal.App.5th ___ [2021 WL 79614].)
As defense counsel did not object to any of the probation conditions, the
challenges are forfeited unless they are facial constitutional challenges that
do not require scrutiny of the individual facts and circumstances of Aviles’s
case under the California Supreme Court’s case law set forth in In re Sheena
K. (2007) 40 Cal.4th 875, 887-889.
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Condition 6.n states that Aviles shall “[s]ubmit person, vehicle,
residence, property, personal effects, computers, and recordable media, [and]
to search at any time with or without a warrant, and with or without
reasonable cause, when required by [probation officer] or law enforcement
officer.” With respect to this condition, Aviles challenges only the provisions
relating to his electronic devices, namely, “computers, and recordable media.”
Aviles’s constitutional challenge to the electronics search condition is
based on an overbreadth theory: “This is a simple no-tech assault case. . . .
Appellant’s crime has nothing to do with any use of computers; and, there is
nothing in the record to suggest that there is a compelling state interest in
being able to search appellant’s computers or recordable media in order to
supervise him for assault.” This argument establishes Aviles’s challenge is
not based on facial constitutional grounds, but instead depends on the facts of
his case. The challenge is accordingly forfeited.
Condition 6.e states that Aviles shall “[c]omply with a curfew if so
directed by the [probation officer].” Aviles argues that this condition is
constitutionally overbroad. However, Aviles’s overbreadth argument focuses
on the specific facts of his case: “The incident occurred in broad daylight.
And, there is nothing in the record indicating appellant is more prone to
commit crimes at night, or that a curfew is required to supervise him.”
Because Aviles bases his constitutional challenge on the specific facts of his
case, it is not a facial challenge, and therefore it is forfeited because Aviles
did not raise it in the trial court. (In re Sheena K., supra, 40 Cal.4th at pp.
887-889.)
Condition 6.k states that Aviles shall “[p]rovide true name, address,
and date of birth if contacted by law enforcement. Report contact or arrest in
writing to the [probation officer] within 7 days. Include the date of
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contact/arrest, charges, if any, and the name of the law enforcement agency.”
Aviles argues that this condition is vague and overbroad because “[a]s
written, the terms include any unqualified and undefined contact with law
enforcement, imposing an undue burden on him. It might reasonably be seen
as including insignificant and completely lawful conduct that should not be
the source of a violation, including consensual encounters. Furthermore, the
condition induces appellant to forego exercising his constitutional rights to
free association and travel by avoiding innocent situations wherein he would
come into ‘contact’ with or be ‘contacted’ by law enforcement, thus triggering
his obligation under the condition.” As the People concede, this challenge
does not depend on the specific facts of Aviles’s case, and accordingly Aviles
did not forfeit this facial constitutional challenge. (People v. Brand, supra,
___ Cal.App.5th ___ [2021 WL 79614, *3].)
In rejecting a similar challenge to this probation condition, this court in
Brand concluded that “the report-contact condition, when read in its entirety,
would indicate to a reasonable person that [defendant] is not required to
report casual, random interactions with law enforcement officers. Instead,
the type of law enforcement contacts that must be reported are those in
which [defendant] is questioned by law enforcement officers and is required
to give identifying information, such as when he has been a witness to a
crime or is suspected of possible involvement in a crime. Accordingly, we
reject [defendant’s] contention that the report-contact condition is
unconstitutionally vague and overbroad.” (People v. Brand, supra, ___
Cal.App.5th ___ [2021 WL 79614, *6].) We adopt Brand’s reasoning to reject
Aviles’s challenge in this case.
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DISPOSITION
The judgment is affirmed.
O’ROURKE, Acting P. J.
WE CONCUR:
AARON, J.
DATO, J.
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