People v. Bratton CA5

Filed 6/17/22 P. v. Bratton CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F076969
Plaintiff and Respondent,
(Super. Ct. No. BF153011A)
v.
DENNIS JOHN BRATTON, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Michael E.
Dellostritto, Judge.
Michelle May Peterson, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
In May 2013 appellant Dennis Bratton was serving a life sentence in prison with
the possibility of parole1 when he beat to death his cellmate, Andrew Keel. A jury
convicted appellant of aggravated assault by a life prisoner (Pen. Code, § 4500;2 count 1).
He was sentenced to life without the possibility of parole (LWOP), plus enhancements of
15 years.3
Appellant contends that multiple instructional errors occurred. He asserts that
California law is flawed regarding certain aspects of self-defense, imperfect self-defense
and voluntary manslaughter. He also argues that the trial court should not have instructed
the jury on the doctrine of mutual combat. We reject these claims. However, we agree
with the parties that the trial court improperly imposed a suspended parole revocation
fine (§ 1202.45). We modify the judgment to strike that fine, but otherwise affirm.
BACKGROUND
When this homicide occurred, appellant and Keel4 were cellmates at Kern Valley
State Prison, a level IV maximum security prison. Appellant and Keel chose to live
together, and they had resided in the same cell for about seven months. At trial, appellant
told the jury that Keel had been his friend. According to appellant, Keel had been a good
cellmate.
1 In 1997, appellant received a determinate prison term of 34 years eight months and
a consecutive indeterminate prison term of seven years to life for attempted first degree
murder, along with convictions from other felony charges.
2 All future statutory references are to the Penal Code unless otherwise noted.
3 This sentence was to be served consecutively to the indeterminate term appellant
was already serving when this crime occurred. During the penalty phase in this matter,
the jury was deadlocked and a mistrial was declared. The prosecution elected not to retry
the penalty phase.
4 Keel’s nickname was “Spider.” The reporter’s transcript alternatively spells
Keel’s nickname as “Spider” or “Spyder.”
2.
Both at trial and in the present appeal, appellant admits that he killed Keel.
During opening statements below, the defense conceded that appellant had killed Keel
using his hands and feet, and it was bloody. The jury learned that Keel had been badly
beaten inside the cell he shared with appellant. Keel died as a result of blunt force trauma
to his head. He had multiple fractures to his skull and forehead, and one of his eyes was
detached. Keel had aspirated blood in his lungs. He had a postmortem ligature injury to
his neck, and the thyroid cartilage in his neck was fractured.
An inmate, James Fortini, lived in an adjoining cell and he heard portions of the
fatal incident. In general, however, it was appellant who provided details about the
killing.
During closing argument, appellant’s trial counsel primarily asserted that appellant
had acted in self-defense. According to the defense, Keel had threatened appellant’s life,
and appellant had responded to that provocation. The defense asked the jury to find
appellant not guilty.
I. Appellant’s Prior Prison Assault.
The jury learned that this was not the first beating appellant had administered on a
fellow inmate. In 2010, about three years before this fatal incident, appellant assaulted an
inmate while they were on the prison yard. Appellant slammed the prior victim to the
ground and, while this victim was nonresponsive, appellant repeatedly stomped on his
head. Appellant rendered this prior victim critically injured with a depressed skull
fracture and multiple facial injuries. A treating physician testified that this victim
suffered life threatening injuries, which required surgery to relieve swelling around the
brain.
Appellant told the jury that this prior victim was a sex offender. According to
appellant, he had attacked this victim after the victim had made sexual gestures towards
him. In February 2011, appellant received a felony conviction for this prior assault.
3.
II. The Assault on Keel.
Appellant killed Keel on the morning of May 16, 2013. By all accounts, that
morning started normally. Appellant and Keel were served breakfast in their cell at
around 6:30 or 6:45 a.m. Their breakfast trays were picked up around 7:00 a.m. or
shortly thereafter. No problems were seen at that time.
Appellant typically worked as part of the prison yard crew. He would normally be
released from his cell sometime between 8:00 and 8:30 a.m. Because he worked on the
yard, appellant had state-issued work boots, which had a hard sole. On the morning in
question, appellant was wearing his boots.
At around 8:30 a.m. on the morning in question, appellant was told that he would
not be released for work right away because some of the correctional officers had training
that morning. Around that time, some of the correctional officers in that area of the
prison left for training. According to a correctional officer, appellant and Keel were in
their cell at about 8:30 a.m. that morning, and everything appeared okay.
Appellant testified that, after being told he would not be released for work, he
continued to wear his work clothes, including his boots, because he anticipated being
called out to work in the yard once the training ended later that morning.
A. Appellant and Keel exchange words.
It is undisputed that Keel was very inebriated when he was killed. Just prior to the
fatal incident with appellant, Keel had been drinking prison-made alcohol.5 His blood-
alcohol content at the time of his autopsy was at least two and a half times the legal
driving limit.
According to appellant, the incident started when he turned down his radio in their
cell. Keel complained that he had been listening to a song. They had a verbal exchange
5 The trial evidence was in conflict regarding how Keel obtained the prison-made
alcohol, which is known as “pruno.” We need not summarize that disputed evidence,
which is immaterial to the issues raised on appeal.
4.
and then Keel said, “[B]oy, you think you’re a tough guy, don’t you?” Appellant
responded, “[H]ere we go.” This seemed to anger Keel, who said, “No, I’m serious.”
Appellant told the jury that he believed Keel was drunk and acting out of
character. Keel gave him dirty looks and said he would “bounce” appellant “off
everything in this cell.” Appellant testified that this was “a normal prison threat.” They
had eye contact and a lot of tension. Appellant claimed at trial that he told Keel to calm
down and stop drinking.
B. The first exchange of blows.
According to appellant, Keel got into a fighting stance. Appellant asked Keel if he
was “serious” and if he really wanted “to do this.” Keel said, “[Y]eah, come on.”
Appellant told him, “[Y]ou know, you’re going to lose, right?” Keel said, “[C]ome on,
motherfucker, come on.” Appellant moved towards him and Keel threw the first punch.
They exchanged punches and appellant knocked Keel to the ground.
Appellant testified that Keel did not know how to fight very well, and appellant
was confident he was going to win. Appellant felt that he was the better fighter.6
C. The alleged threat on appellant’s life.
According to appellant, Keel’s nose “was busted” and “leaking bad” after their
first exchange of blows. Appellant asked Keel if he was done and had enough. Keel was
dazed, but he cursed at appellant and indicated that he wanted to fight more. Keel began
to remove a piece of drawstring from a pair of his shorts. He told appellant, “[Y]ou got
to sleep sometime.” Appellant was sitting on his bed at the time. He asked Keel if that
was supposed to be a threat. Keel finished cutting the string from the shorts and he
6 Fortini, an inmate in a neighboring cell, testified that he heard what sounded like a
fight based on scuffling sounds. He heard someone in appellant’s cell say, “Come on,
Bro. That’s it.” Someone else said, “Yeah, you ain’t going to keep talking shit.” Fortini
assumed Keel said the former and appellant the latter because of “how it turned out
after.”
5.
started to turn around. Appellant stood up and moved towards him. As Keel was turning
around, he told appellant he would “cut” his throat and “fuck” him.7
Appellant told the jury that he viewed the drawstring as a potential weapon. He
took it as a threat to his life when Keel said appellant had to sleep sometime. Appellant
feared that Keel would later try a “sneak attack” on him, which was common in prison
when somebody was unable to win a fight. Appellant testified that Keel “elevated” the
situation “by making threats about doing something to me while I was asleep, about
cutting my throat.”
D. Appellant renders Keel unconscious.
After Keel made his threat, appellant took a fighting stance and Keel tried to
tackle him. Keel ended up on the ground on his back and appellant kicked his face with
his boot, possibly five or six times. According to appellant, Keel’s head was bouncing
off the cement floor, and Keel was rendered unconscious. At some point, however, Keel
regained consciousness and he sat up. He vomited and managed to stand up. Appellant
told Keel to pack because he was going to move to a new cell. Keel said, “[F]uck you. I
ain’t going nowhere.”
E. The final blows.
Appellant testified that, after Keel said he was not going to move, appellant
punched him hard on the chin. Keel fell and he ended up face down on the ground.
Appellant stomped on and kicked Keel’s head about seven or eight times. Appellant told
the jury that, at that point, he wanted to end the situation because Keel would not stop
getting up. Appellant said he was “going to make sure he’s hurt, that he’s leaving and
this situation is over.” However, appellant claimed he did not want to kill Keel.
7 Before living together in that cell, Keel had disclosed to appellant that he (Keel)
had previously “sliced” an inmate’s throat at a prior prison because that inmate had not
participated in a race riot. During closing arguments, appellant’s trial counsel asserted
that the jurors should consider that fact in deciding if appellant’s conduct was reasonable.
6.
Appellant took a cord and placed it around Keel’s neck. Appellant pulled up so
that Keel’s head and chest were lifted off the ground.8 Keel was limp when appellant
pulled him up with the cord. At trial, appellant agreed that he left the ligature marks on
Keel’s neck. He agreed that, around that time, he could “kind of tell” that Keel was dead.
F. Appellant’s explanation of his actions to the jury.
At trial, appellant thought that the whole incident lasted about five or 10 minutes.
He told the jury that he tried to calm the situation down throughout the entire encounter.
He believed he told Keel about 10 times to “knock it off.” Appellant testified that it was
not really an option to just sit down and ask Keel to talk about it. According to appellant,
it was also not possible to just call for help inside the cell. Appellant said he had already
tried to calm Keel down but Keel kept “escalating” the situation.
When asked why he did not seek help from a guard after Keel had threatened him,
appellant said he could not just wait and tell a correctional officer because he would be
labeled a “rat” and he would “have a target on my back for the rest of my life.” In
addition, he would still be in the cell with Keel all day, and appellant was concerned that
Keel could get “the upper hand” on him.
Appellant told the jury that a person cannot back down in prison or show “any
weakness.” He testified that, when “somebody calls you out” in prison “you have to
accept the challenge.” He said prison is “a masculine society” and a “warrior mentality”
exists. If somebody calls you out, you will look weak if you do not do anything.
At trial, appellant denied planning to kill Keel. He denied ever telling anyone else
that he had planned to hurt or kill Keel in the days leading up to this. He denied planning
to kill Keel when the officers were at training.
8 A string or cord recovered inside the cell was consistent with the ligature marks
seen on Keel’s neck.
7.
III. Appellant Calls for Help and Sends Some of his Personal Property to Fortini
Next Door.
At some point after rendering Keel unconscious, appellant alerted correctional
officers that Keel needed help by calling “man down.” However, an evidentiary conflict
exists regarding how much time passed before appellant began calling for help.
According to Fortini (the neighbor), about 20 minutes “at the most” passed from the time
he heard banging noises cease in appellant’s cell until appellant began calling “man
down.” Fortini believed it took another five or 10 minutes before an officer responded
and an alarm activated.
In contrast, appellant testified that he began to call “man down” right away, but he
admitted he may have waited a “minute or two” after the fight ended to start calling. He
claimed he yelled sporadically for about 20 minutes before a correctional officer
responded to the cell. Appellant explained that he did not call for help sooner during the
violent encounter because Keel had been continuously aggressive and threatening.
Appellant told the jury that, after the fight ended, he knew he was going to be
segregated in “the hole.” During the approximate 20-minute period before a correctional
officer responded, appellant sent some of his personal property, such as his wristwatch
and CD’s, over to Fortini.9 Appellant took off his work boots and he put on sneakers.
Appellant told the jury that he realized his actions sounded “cold” because Keel was
lying unresponsive on the floor and dying (or already dead) but “that’s how our minds
operate in prison.” He said it was normal for a prisoner headed to the hole to want to
protect his personal property.
9 The trial evidence was in conflict regarding whether or not appellant admitted to
Fortini that he (appellant) had killed Keel. According to Fortini, appellant sent him a
written message (called a “kite”) just after the fatal incident, and the message stated that
appellant had killed Keel. Fortini told the jury that he had flushed the alleged written
message from appellant down the toilet. In contrast, appellant denied ever sending
Fortini a written message stating he had killed Keel.
8.
IV. Correctional Officers Respond.
At about 9:23 a.m. an officer responded to appellant’s calls for help. Appellant
told the responding officer that Keel was dead and nothing could be done for him.
Appellant appeared very calm and he was not sweating. He did not appear injured. Keel
was lying face down in a pool of blood. He was not moving and he did not appear to be
breathing.
Multiple officers responded to an alarm at approximately 9:23 a.m. Appellant was
removed from his cell without incident. When medical personnel tended to Keel in the
cell, he was face down, not breathing, nonresponsive, and there was “massive pooling of
blood on the floor.” Keel had no pulse and he was cold. Keel was transported to a
hospital, where he was pronounced dead at 10:20 a.m. that same morning.
The responding officers all agreed at trial that, after appellant was removed from
his cell, he had appeared very calm. He was not sweating or out of breath. Multiple
officers heard appellant say words to the effect that Keel was dead and it was pointless to
render medical aid to him.
Photographs were taken of appellant shortly after he was removed from his cell.
He did not appear to have any injuries. However, he did have bruises on his heels and
knees. Appellant did not appear intoxicated.
At trial, appellant agreed with the officers’ general testimony that he had appeared
calm or cold after being removed from his cell. He told the jury he does not get very
emotional and he lives in a violent world. As a result, you do not show emotion in
prison. However, appellant claimed to the jury that he was upset about what had
happened because Keel had been his friend. Appellant told the jury that, because inmates
do not talk to law enforcement, he did not share with the officers that day what had
happened in the cell with Keel.
9.
V. The Testimony from Inmates.
During its case-in-chief, the prosecution called four inmates to testify against
appellant.10 Fortini (the neighbor) claimed at trial that, about three or four days before
this homicide, he had heard appellant say in the dayroom that he was going to hurt Keel.
Fortini also claimed that, either a few days before this killing or even the night before, he
had heard someone in appellant’s cell ask a correctional officer for permission to change
to a new cell, and the officer had responded, “I don’t see a body.”11 According to
Fortini, appellant and Keel were not getting along. Fortini, however, previously informed
law enforcement that neither appellant nor Keel had ever talked to him about “ ‘not
getting along.’ ” At trial, he said his previous statement to law enforcement had been a
lie.12
Inmates Aaron Yost and Mario Anthony Melchionne both testified that they
separately spoke with appellant months after this killing. According to Yost, appellant
said that Keel “was a coward” and “he was a bitch.” Appellant said that Keel was “using
drugs” behind appellant’s back. Appellant told Yost “it was over fast.” Appellant said
10 In general, the credibility of the four inmate witnesses was impeached in various
ways. In his opening brief, appellant extensively details the credibility concerns
surrounding these inmates, including attempts to obtain favorable treatment from the
government. We need not summarize in depth the various credibility issues surrounding
the incarcerated witnesses. Instead, it was the jury’s role to determine witness credibility,
and the truth or falsity of the determinative facts. (§ 1127; People v. Letner and Tobin
(2010) 50 Cal.4th 99, 162.)
11 At trial, the officer in question denied that he had received a request from either
appellant or Keel for a cell change in the days leading up to this homicide.
12 At trial, Fortini also claimed he had worked with Keel as a prison porter.
However, the defense impeached Fortini with information from prison records which
purported to show that Fortini had not worked as a porter until after Keel was killed.
10.
he had been yelling for a guard, but nobody heard him. Keel “was spitting and coughing
up blood.” Appellant decided to “end it” so he stomped on Keel’s head.13
According to Melchionne, appellant said Keel had been “going through his shit”
and Keel had been “acting like a nigger.”14 Appellant “got fed up” with Keel so he
decided to kill him.
At trial, appellant denied ever referring to Keel as a “nigger,” and he denied
Melchionne’s testimony. According to appellant, he told Melchionne that Keel “was
drunk and talking shit.” He denied telling Melchionne or anyone else that Keel was
ingesting drugs without him. When asked at trial why he did not share with Yost or
Melchionne what had really happened, appellant said an inmate does not “go into
specifics” about something like this.
DISCUSSION
I. Instructional Error Did Not Occur with CALCRIM Nos. 505 and 571.
Appellant was convicted in count 1 of violating section 4500. In relevant part, this
statute reads: “Every person while undergoing a life sentence, who is sentenced to state
prison within this state, and who, with malice aforethought, commits an assault upon the
person of another with a deadly weapon or instrument, or by any means of force likely to
produce great bodily injury is punishable with death or life imprisonment without
possibility of parole.” Because section 4500 involves “malice aforethought,” both perfect
and imperfect self-defense may be raised. (See People v. St. Martin (1970) 1 Cal.3d 524,
530–531 [in a prosecution under section 4500 it is error to refuse an instruction on
provocation]; see also Bench Notes to CALCRIM No. 2720.)
13 In August 2014, Yost was attacked by two prison inmates. In September 2014,
law enforcement intercepted a written message from appellant asking certain inmates to
attack Fortini, and alerting them that Yost was cooperating with authorities.
14 Keel was Caucasian. According to Melchionne, appellant’s comment about Keel
had meant that Keel had been “listening to rap music” and wearing “sagging” pants.
11.
Appellant raises two separate but related claims of instructional error, which we
address together. He contends that portions of both CALCRIM No. 505 (perfect self-
defense) and CALCRIM No. 571 (imperfect self-defense) are erroneous, especially when
applied to his situation as a confined prisoner who received a potential death threat from
a cellmate. He argues that these instructions lowered the prosecution’s burden of proof
and resulted in federal constitutional error.
A. Background.
Based on CALCRIM No. 505, the trial court instructed the jurors that appellant
was not guilty if he acted in self-defense.15 We highlight in bold the disputed language
from CALCRIM No. 505 which appellant challenges on appeal.
In relevant part, the jurors were told that, for self-defense to apply, appellant
(1) must have reasonably believed he was “in imminent danger” of being killed or
suffering great bodily injury, or he was “in imminent danger” of being raped; (2) he must
have reasonably believed “immediate use of deadly force” was necessary to defend
against that danger; and (3) he used no more force than was reasonably necessary to
15 For comparison, CALJIC No. 5.12 instructs as follows regarding self-defense:
“The killing of another person in self-defense is justifiable and not unlawful when
the person who does the killing actually and reasonably believes:
1. That there is imminent danger that the other person will either kill [him] [her]
or cause [him] [her] great bodily injury; and
2. That it is necessary under the circumstances for [him] [her] to use in self-
defense force or means that might cause the death of the other person for the purpose of
avoiding death or great bodily injury to [himself] [herself].
A bare fear of death or great bodily injury is not sufficient to justify a homicide.
To justify taking the life of another in self-defense, the circumstances must be such as
would excite the fears of a reasonable person placed in a similar position, and the party
killing must act under the influence of those fears alone. The danger must be apparent,
present, immediate and instantly dealt with, or must so appear at the time to the slayer as
a reasonable person, and the killing must be done under a well-founded belief that it is
necessary to save one’s self from death or great bodily harm.”
12.
defend against that danger. The jurors were cautioned that a “[b]elief in future harm is
not sufficient no matter how great or how likely the harm is believed to be. [Appellant]
must have believed there was imminent danger of death or great bodily injury to
himself.” The jurors were told “consider all [of] the circumstances as they were known
to or appeared” to appellant and “consider what a reasonable person in a similar situation
with similar knowledge would have believed. If [appellant’s] beliefs were reasonable,
the danger does not need to have actually existed.”
Based on CALCRIM No. 571, the trial court instructed the jurors that appellant’s
crime would be reduced to voluntary manslaughter if he killed Keel because he acted in
imperfect self-defense.16 The jurors were reminded that, if they concluded appellant had
acted in complete self-defense, his action was lawful and he must be found not guilty of
any crime. The court stated that the difference between complete self-defense and
imperfect self-defense depends on whether appellant’s belief in the need to use deadly
force was reasonable.
16 For comparison, CALJIC No. 5.17 instructs as follows regarding imperfect self-
defense:
“A person who kills another person in the actual but unreasonable belief in the
necessity to defend against imminent peril to life or great bodily injury, kills unlawfully
but does not harbor malice aforethought and is not guilty of murder. This would be so
even though a reasonable person in the same situation seeing and knowing the same facts
would not have had the same belief. Such an actual but unreasonable belief is not a
defense to the crime of [voluntary] [or] [involuntary] manslaughter.
As used in this instruction, an ‘imminent’ [peril] [or] [danger] means one that is
apparent, present, immediate and must be instantly dealt with, or must so appear at the
time to the slayer.
[However, this principle is not available, and malice aforethought is not negated, if
the defendant by [his] [her] [unlawful] [or] [wrongful] conduct created the circumstances
which legally justified [his] [her] adversary’s [use of force], [attack] [or] [pursuit].]
[This principle applies equally to a person who kills in purported self-defense or
purported defense of another person.]”
13.
We highlight in bold the disputed language from CALCRIM No. 571 which
appellant challenges on appeal. In relevant part, the jurors were told that, for imperfect
self-defense to apply, appellant had to (1) actually believe he was “in imminent danger”
of being killed or suffering great bodily injury; and (2) actually believe that the
“immediate use of deadly force was necessary” to defend against the danger; but (3) at
least one of those beliefs was unreasonable. The jurors were told that a belief in future
harm is not sufficient no matter how great or how likely the harm is believed to be. The
jurors were told to consider all of the circumstances that were known and appeared to
appellant. “A danger is imminent if when the fatal wound occurred the danger actually
existed or [appellant] believed that it existed. The danger must seem immediate and
present so that it must be instantly dealt with. It may not be merely prospective or in
the near future.”17
B. Standard of review.
A de novo review is used to analyze a claim of instructional error. (People v.
Mitchell (2019) 7 Cal.5th 561, 579.) We must review the wording of the jury instruction
and assess whether it accurately states the law. (Ibid.) We must consider whether a
reasonable likelihood exists that the challenged instruction “caused the jury to misapply
the law in violation of the Constitution. [Citations.] The challenged instruction is viewed
‘in the context of the instructions as a whole and the trial record to determine whether
there is a reasonable likelihood the jury applied the instruction in an impermissible
manner.’ [Citation.]” (Ibid.)
17 Appellant notes that the trial court misspoke at times when reading the jury
instructions. Appellant does not challenge those oral errors because the record suggests
that the written instructions were provided to the jury during deliberations. Where
disagreement exists between oral and written jury instructions, it is presumed that the jury
was guided by the written version. (People v. Osband (1996) 13 Cal.4th 622, 687.)
14.
C. Analysis.
Appellant maintains that “necessity” is the basis of any self-defense. He notes that
he was locked in a cell with Keel, and he had no way of retreating or escaping. Keel had
previously sliced another inmate’s throat for not participating in a race riot at another
prison. Appellant argues that Keel threatened to kill him when he was asleep (or
impliedly whenever he let down his guard), and appellant took this threat seriously.
According to appellant, the evidence established either perfect or imperfect self-defense
because he held a perception of imminent danger, even if the threat of harm was in the
future. He maintains that an “imminent danger” can include a threat of future harm,
especially if a defendant cannot escape the situation. He claims that the allegedly
erroneous portions of CALCRIM Nos. 505 and 571 prevented any realistic opportunity of
establishing either perfect or imperfect self-defense in his situation.
We reject appellant’s arguments and conclude that instructional error did not
occur. We first address the parties’ dispute regarding forfeiture.
1. We decline to find forfeiture.
During the instructional conference, the trial court stated it was going to instruct
the jury with CALCRIM Nos. 505 and 571 regarding the doctrines of perfect and
imperfect self-defense. The court invited the parties to make comments. Appellant did
not object to the language contained in these instructions which he now challenges on
appeal. As a result, respondent asks us to not review these claims because appellant did
not request clarification or amplification of either CALCRIM No. 505 or 571.
To overcome forfeiture, appellant cites section 1259, which permits an appellate
court to review any instruction given despite a lack of objection below “if the substantial
rights of the defendant were affected thereby.” Appellant also contends that the trial
court had a sua sponte duty to provide correct statements of law, and appellant takes the
position that both CALCRIM Nos. 505 and 571 are defective. Finally, appellant raises
ineffective assistance of counsel.
15.
We decline to find forfeiture. According to appellant, portions of CALCRIM Nos.
505 and 571 are incorrect as a matter of law. Appellant also argues that these allegedly
erroneous instructions “effectively lowered the prosecution’s burden of proof.” If
appellant is correct, these alleged legal errors would impact his substantial rights. As
such, these claims are cognizable despite his failure to object below. (See People v.
Kelly (2007) 42 Cal.4th 763, 791; People v. Smithey (1999) 20 Cal.4th 936, 976–977,
fn. 7.)
Likewise, we decline to estop appellant based on the doctrine of invited error.
This doctrine precludes a party from asserting an error that he or she induced. (People v.
Perez (1979) 23 Cal.3d 545, 549–550, fn. 3.) However, this doctrine does not apply to
bar a criminal defendant from contesting an erroneous instruction even when requested
by the defense. As the California Supreme Court has explained, a trial attorney’s failure
to detect a flaw in standard jury instructions and request a modification does not
demonstrate a tactical intent to induce the error subsequently raised on appeal. (People v.
Moore (2011) 51 Cal.4th 386, 410.) Thus, we will review the merits of appellant’s
claims.18 However, we find no error.
2. Instructional error did not occur.
There are two types of self-defense: perfect and imperfect. (People v. Rodarte
(2014) 223 Cal.App.4th 1158, 1168.) Perfect self-defense requires a defendant to have
an honest and reasonable belief in the need to defend himself or another, while imperfect
self-defense is the killing of another human being under the actual but unreasonable
belief that the killer was in imminent danger of death or great bodily injury. (Ibid.) Both
perfect and imperfect self-defense require a defendant to fear an “imminent harm.”
(People v. Humphrey (1996) 13 Cal.4th 1073, 1082 (Humphrey).) A fear of “future
18 Because we will review the merits of appellant’s arguments, it is unnecessary to
consider appellant’s claim of ineffective assistance of counsel. (See People v. Smithey,
supra, 20 Cal.4th at pp. 976–977, fn. 7.)
16.
harm—no matter how great the fear and no matter how great the likelihood of the harm—
will not suffice. The defendant’s fear must be of imminent danger to life or great bodily
injury.” (In re Christian S. (1994) 7 Cal.4th 768, 783 (Christian S.).)
The word “imminent” appears in section 197, which codifies justifiable homicide
in California. First enacted in 1872, the current version states in relevant part that a
homicide is justifiable when committed in the lawful defense of a person when there is
“reasonable ground” to believe a felony or some great bodily injury may occur, and
“imminent danger” exists.19 (§ 197, subd. (3).) The word “immediate” does not appear
in section 197.
Appellant focuses on the differences between the definitions of “imminent” and
“immediate.”20 He concedes that CALCRIM Nos. 505 and 571 properly include the
word “imminent” in its instructions regarding perfect and imperfect self-defense.
However, he maintains that it is improper to require a risk of “immediate” danger, which
does not appear in section 197.
We hold that instructional error did not occur in this matter. It was the California
Supreme Court that articulated the disputed language that appears in both CALCRIM
Nos. 505 and 571.21 In 1994, our Supreme Court reaffirmed the doctrine of imperfect
19 Section 192 codifies manslaughter in California. First enacted in 1872, the current
version states (in relevant part) that “[m]anslaughter is the unlawful killing of a human
being without malice.” There are three kinds, including voluntary, which is based “upon
a sudden quarrel or heat of passion.” (§ 192, subd. (a).)
20 The word “imminent” means “ready to take place” or “happening soon” or “often
used of something bad or dangerous seen as menacingly near.” ( [as of June 6, 2022].) The word “immediate” means
“occurring, acting, or accomplished without loss or interval of time” or “near to or related
to the present” or “of or relating to the here and now” or “existing without intervening
space or substance” or “being near at hand.” ( [as of June 6, 2022].)
21 A panel from this court has already upheld the language contained in both
CALCRIM Nos. 505 and 571. (People v. Lopez (2011) 199 Cal.App.4th 1297, 1306
(Lopez).) In Lopez, this court previously stated that “[t]here is no reasonable likelihood
17.
self-defense after the Legislature amended the Penal Code to eliminate the diminished
capacity defense. (Christian S., supra, 7 Cal.4th at p. 771.) The court, however,
cautioned that the doctrine of imperfect self-defense is narrow. “It requires without
exception that the defendant must have had an actual belief in the need for self-defense.
We also emphasize what should be obvious. Fear of future harm—no matter how great
the fear and no matter how great the likelihood of the harm—will not suffice. The
defendant’s fear must be of imminent danger to life or great bodily injury. ‘ “[T]he peril
must appear to the defendant as immediate and present and not prospective or even in the
near future. An imminent peril is one that, from appearances, must be instantly dealt
with.” … [¶] This definition of imminence reflects the great value our society places on
human life.’ [Citation.] Put simply, the trier of fact must find an actual fear of an
imminent harm. Without this finding, imperfect self-defense is no defense.” (Id. at
p. 783.)
In 1996, our Supreme Court reiterated the requirement that a threat of “future
harm” was never sufficient to support any self-defense. (Humphrey, supra, 13 Cal.4th at
p. 1082.) The court stated that “for either perfect or imperfect self-defense, the fear must
be of imminent harm.”22 (Humphrey, at p. 1082.)
Appellant asks us to disregard the language previously articulated by our Supreme
Court. According to appellant, the high court has never analyzed the unique situation
jurors would fail to understand the difference between imminent danger and future harm,
one being immediate and the other not.” (Id. at p. 1306.) Appellant argues that Lopez is
factually distinguishable from the present matter and is inapplicable. We need not
address Lopez in depth because we rely on prior pronouncements from the Supreme
Court to resolve appellant’s claims.
22 Our high court continues to reaffirm the requirement that a defendant must face an
imminent danger, and a fear of future harm fails to support a theory of self-defense. (See
People v. Steskal (2021) 11 Cal.5th 332, 346; People v. Trujeque (2015) 61 Cal.4th 227,
270; People v. Manriquez (2005) 37 Cal.4th 547, 582; People v. Minifie (1996) 13
Cal.4th 1055, 1064–1065.)
18.
presented here; that is, a confined prisoner who receives a death threat from a cellmate.
As such, appellant contends we are not bound by the prior Supreme Court language. In
any event, appellant argues that our high court has also endorsed the idea that self-
defense is based on necessity and imminent danger. He notes that, at times, the Supreme
Court has summarized imperfect self-defense without referencing a requirement of
“immediate danger.” (See People v. Simon (2016) 1 Cal.5th 98, 132; People v. Rangel
(2016) 62 Cal.4th 1192, 1226; People v. Nguyen (2015) 61 Cal.4th 1015, 1048–1049.)
We decline appellant’s invitation to ignore our high court’s pronouncements. The
California Supreme Court has made it abundantly clear that a threat of “future harm” is
never sufficient to support self-defense, and “the fear must be of imminent harm.”
(Humphrey, supra, 13 Cal.4th at p. 1082.) Any perceived peril must seem “ ‘ “immediate
and present” ’ ” to a defendant. (Christian S., supra, 7 Cal.4th at p. 783.) The high court
has never wavered from these requirements. Both CALCRIM Nos. 505 and 571 reflect
the law as articulated by the California Supreme Court, and we are bound by its
decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Even
if these disputed statements could be characterized as dicta, they are nevertheless
persuasive and should be followed. (Hubbard v. Superior Court (1997) 66 Cal.App.4th
1163, 1169.)
During closing argument, appellant’s trial counsel asserted that appellant had
acted in perfect self-defense, and he should be found not guilty. The defense asserted
that Keel “was a three-striker” who had been previously at Corcoran, a level IV prison.
According to counsel, Keel had been in the “SHU” there.23 Defense counsel reminded
the jurors that Keel told appellant he had gone to the SHU because he had slashed the
neck or face of another person who had refused to participate in a race riot. According to
23 “SHU” stands for “security housing unit,” which is a higher security facility
within a prison.
19.
defense counsel, CALCRIM No. 505 permitted the jurors to consider this fact in deciding
if appellant’s conduct was reasonable. The defense noted that Keel was intoxicated on
the morning in question, and Keel made a weapon from the drawstring of his shorts. The
defense asked the jurors to ponder why appellant did not stop his assault of Keel.
According to the defense, the answer was based on the prison environment. The defense
asserted that, based on the prison environment, appellant had held a reasonable belief that
Keel’s threat was real.
We conclude that appellant’s unique situation does not demonstrate flaws with
CALCRIM Nos. 505 and/or 571. The jurors were permitted to consider all of the
circumstances surrounding appellant’s situation. It was their role to determine whether or
not a necessity existed for appellant to assault Keel with force likely to produce great
bodily injury. Even as a confined prisoner, appellant was not permitted to use deadly
force in the absence of either a reasonable or unreasonable belief that he faced an
imminent threat. He was not permitted to so act when any such threat contemplated a
future harm, especially one that might never come to fruition.24 Our Supreme Court
holds that a prospective harm is never sufficient. (Christian S., supra, 7 Cal.4th at
p. 783.) Instead, the threat must represent imminent peril that requires immediate action.
Such a requirement reflects the great value our society places on human life. (Ibid.)
Thus, we discern no error in the instructions given to the jury pursuant to CALCRIM
Nos. 505 and 571.
3. Appellant’s authorities.
Appellant relies primarily on three opinions from other jurisdictions: (1) Porter v.
State (2017) 455 Md. 220 (Porter); (2) DePetris v. Kuykendall (9th Cir. 2001) 239 F.3d
1057 (DePetris); and (3) State v. Janes (1993) 121 Wash.2d 220 (Janes).) He contends
24 We reject appellant’s assertion that his “only recourse” was to kill Keel to prevent
a possible sneak attack at a later time.
20.
that these opinions are examples of how self-defense is a doctrine of necessity. These
authorities do not assist him in establishing instructional error in this matter.
a. Porter.
In Porter, an opinion from the Maryland Court of Appeals,25 the defendant was a
battered spouse who had her husband killed by a third party. (Porter, supra, 455 Md. at
pp. 226–227.) The Maryland high court determined that the jury had been improperly
instructed regarding imperfect self-defense. (Id. at p. 239.)
Porter holds that, under Maryland law, the elements of imperfect self-defense
require a defendant “to demonstrate that she actually feared ‘imminent or immediate’
danger—not both.” (Porter, supra, 455 Md. at p. 245.) The defendant in Porter showed
she had suffered repeated mental and physical abuse from her husband. (Id. at pp. 227–
229.) She presented “ample evidence that she lived in a constant state of fear of
imminent danger” from her husband “in the weeks leading up to his death, including the
morning he was killed.” (Id. at p. 239.)
The Porter court noted that an “imminent threat is not dependent on its temporal
proximity to the defensive act. Rather, it is one that places the defendant in imminent
fear for her life.” (Porter, supra, 455 Md. at p. 245.) According to Porter, two rationales
exist for “limiting self-defense to threats of ‘imminent or immediate’ danger: (1) a non-
imminent threat may never come to fruition; and (2) there are other ways to address a
non-imminent threat besides responding with defensive force.” (Porter, supra, 455 Md.
at p. 247.) The high court declined to hold “that a woman suffering from battered spouse
syndrome must experience abuse within minutes or hours of her defensive action to be
entitled to an instruction on imperfect self-defense. Doing so would ignore the reality of
intimate partner violence.” (Id. at p. 249.)
25 This is the highest appellate court in Maryland. (See
[as of June 6, 2022].)
21.
In its opinion, the Porter court mentioned a hypothetical, which appellant
emphasizes. A victim is kidnapped and the victim has an opportunity to kill the
kidnapper and escape each morning when the kidnapper brings him food. Taken literally,
the “imminent” requirement would prevent the victim from using deadly force in self-
defense until the kidnapper is standing over him with a knife. (Porter, supra, 455 Md. at
p. 242.) The proper inquiry should be on the “ ‘immediacy of the response necessary in
defense.’ ” (Ibid.) If a threatened harm cannot be avoided if the intended victim waits
until the last moment, then the principle of self-defense must permit him to act as early as
is required to defend himself effectively. (Ibid.) In other words, imminence means the
time for defense is now, and the defendant can no longer wait. (Ibid.)
Appellant argues that Porter provides a correct statement of law—that imperfect
self-defense requires a fear of imminent or immediate danger. According to appellant,
CALCRIM No. 571 is “materially flawed.” He contends that his situation is very similar
to the battered spouse in Porter because, like her, he felt unable to escape. He was
locked up with Keel, who threatened to kill him if he fell asleep (or presumably otherwise
let down his guard). Appellant asserts he cannot be expected to wait “ ‘until the last
moment’ ” to act because that is when he could be seriously harmed or murdered. He
argues Porter illustrates that a threat of imminent harm, which a reasonable person would
perceive as capable of being executed without that person being able to escape, fulfills
the requirement of imminence even if it is not immediate.
We conclude that Porter does not establish instructional error in this matter. It did
not analyze California law, and cases are not authority for propositions not considered or
decided. (Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1134.) Moreover, out-of-state
opinions are not binding on California courts. (Episcopal Church Cases (2009) 45
Cal.4th 467, 490; accord, Arteaga v. Superior Court (2015) 233 Cal.App.4th 851, 868.)
In any event, Porter is factually distinguishable. The defendant in Porter
presented “extensive evidence during her trial that the violence she feared would in fact
22.
come to fruition.” (Porter, supra, 455 Md. at p. 247.) In contrast, no such evidence was
presented in this matter. Nothing presented to the jury established a history of violence
between appellant and Keel, or even prior threats. Indeed, appellant told the jury that he
was friends with Keel, and they voluntarily chose to be cellmates. They had lived
together for about seven months before this murder. Appellant repeatedly testified that
Keel was drunk on the morning in question, and Keel was acting out of character when
this incident started. Appellant admitted at trial that he knew he was a better fighter than
Keel. Appellant was confident he was going to win this fight.
Finally, appellant told the jury that a “warrior mentality” exists in prison.
Appellant testified that prison is “a masculine society” and if somebody calls you out you
will look “weak” if you do not respond. Appellant said he could not just wait and tell a
correctional officer because he would be labeled a rat. Appellant also said he would still
be in the cell with Keel, who could get the upper hand.
Appellant explained to the jury why he did not pursue other alternatives short of
killing Keel. However, even Porter makes it clear that a non-imminent threat may never
come to fruition, and there are other ways to address a non-imminent threat besides
responding with deadly force. (Porter, supra, 455 Md. at p. 247.) In any event, it was
the jury’s role to decide appellant’s credibility, and to determine whether or not appellant
had other options available to him besides using deadly force. (See § 1127; see also
People v. Letner and Tobin, supra, 50 Cal.4th at p. 162 [jury has exclusive province to
determine witness credibility and the truth or falsity of facts].) Porter does not dictate
reversal of appellant’s conviction.
b. DePetris.
In DePetris, the defendant shot and killed her husband while he was asleep in bed.
During the trial in a California state court, she had claimed imperfect self-defense.
(DePetris, supra, 239 F.3d at p. 1058.) The trial evidence had established that her
23.
husband had subjected her to a prolonged history of physical and emotional abuse,
including threatening to kill her and their young child. (Id. at pp. 1059–1060.) An expert
witness testified for the defense regarding battered woman’s syndrome. (Id. at p. 1060.)
The state trial court precluded the defendant from introducing into evidence the
husband’s journal, which detailed the physical abuse he had inflicted on other people,
including physical abuse of a homosexual companion, beating his stepdaughter, his rape
of a friend’s girlfriend, and numerous accounts of beating his first wife. The trial court
also precluded the defendant from testifying that she had read this journal both before and
during the marriage, and how it had impacted her. (DePetris, supra, 239 F.3d at
pp. 1060–1061.) The jury found her guilty of first degree murder with use of a firearm.
(Id. at p. 1061.) The California Court of Appeal affirmed, holding unanimously that the
journal evidence was admissible, but also holding (with one justice dissenting) that the
error was not prejudicial in light of other evidence that demonstrated the defendant’s
credibility and the victim’s propensity for violence. (Ibid.) A federal district court
denied habeas relief, holding that the excluded evidence was just one piece of physical
evidence that was not critical to the defense, and any presumed constitutional error was
harmless in light of other evidence that was introduced in support of her defense. (Ibid.)
The Ninth Circuit Court of Appeals found prejudicial error. It concluded that the
journal and the defendant’s testimony about having read it were critical to her defense
regarding the danger she had perceived. (DePetris, supra, 239 F.3d at p. 1063.)
Although the jury heard testimony from other people about the husband’s violence, the
journal was not subject to attack on the grounds of bias or self-interest. Instead, “it was
from the victim himself.” (Id. at pp. 1063–1064.) According to the Ninth Circuit, the
excluded journal “would have corroborated her testimony about why she believed that
harm was imminent and that shooting him provided the only avenue of escape. Although
the unreasonableness of that belief disqualifies the petitioner from ordinary self-defense,
24.
the actuality of that belief, if true, entitles her to imperfect self-defense.” (Id. at p. 1064,
italics omitted.)
In this matter, appellant acknowledges that he is not an abused woman. However,
he contends that the “underlying legal principle” found in DePetris should apply here.
According to appellant, if a person is attacked by an assailant who manifests an intent to
kill, and the person honestly and actually believes in the necessity of killing the assailant
because there is no way to escape the imminent threat of great bodily injury, then the
person does not harbor the malice required for murder.
We decline to rely on DePetris. Lower federal decisions, including those of the
Ninth Circuit Court of Appeals, are not binding on us. (People v. Avena (1996) 13
Cal.4th 394, 431; McLaughlin v. Walnut Properties, Inc. (2004) 119 Cal.App.4th 293,
297.) In any event, DePetris did not analyze alleged instructional error regarding
imperfect self-defense. Instead, it focused on whether prejudice resulted from the
erroneous exclusion of evidence that tended to support the defendant’s claim that she
faced imminent fear. DePetris does not establish or even reasonably suggest that
instructional error occurred in this matter.
c. Janes.
In Janes, the defendant killed a man who had sporadically abused him for 10
years. (Janes, supra, 121 Wash.2d at p. 222.) Expert testimony demonstrated that the
defendant had suffered from battered child syndrome. (Id. at p. 237.) The trial court did
not give a self-defense instruction. The jury found the defendant not guilty of first degree
murder but guilty of second degree murder, and guilty of two counts of second degree
assault. (Id. at p. 231.)
The Supreme Court of Washington concluded that the trial court had failed to
properly consider whether or not to instruct on self-defense. (Janes, supra, 121 Wash.2d
at p. 242.) The matter was remanded for the trial court to reconsider its ruling denying
25.
the self-defense instruction. (Ibid.) In reaching its ruling, the Janes court felt it was
important to distinguish “ ‘imminent harm’ from ‘immediate harm’ ” and it concluded
that “[t]hese two words have divergent meanings.” (Id. at p. 241.) The applicable statute
in Washington “only requires that the harm faced by the defendant be imminent.” (Ibid.)
The Janes court stated that the reasonableness of a defendant’s perception of imminent
harm is not necessarily negated if the “triggering behavior and the abusive episode are
divided by time.” (Ibid.) “Even an otherwise innocuous comment which occurred days
before the homicide could be highly relevant when the evidence shows that such a
comment inevitably signaled the beginning of an abusive episode.” (Id. at pp. 241–242.)
According to appellant, Janes illustrates that a threat of imminent harm, which a
reasonable person would perceive as capable of being executed without that person being
able to escape, fulfills the requirement of “imminence” even if it is not “immediate.” We
conclude that Janes does not assist appellant. That opinion did not analyze California
law, and cases are not authority for propositions not considered or decided. (Loeffler v.
Target Corp., supra, 58 Cal.4th at p. 1134.) As an out-of-state opinion, it is not binding
on us. (Episcopal Church Cases, supra, 45 Cal.4th at p. 490; accord, Arteaga v. Superior
Court, supra, 233 Cal.App.4th at p. 868.) In any event, Janes is distinguishable. Unlike
what occurred in Janes, appellant’s jury received correct statements of law regarding
both perfect and imperfect self-defense. It was for the jury to determine whether or not
appellant was justified in using deadly force when he assaulted Keel. Janes does not
require reversal of the instant matter.
4. Our conclusion.
We note that, in the context of a battered spouse, “Evidence Code section 1107
permits admission of expert testimony regarding intimate partner battering, but it does
not modify the imminence requirement.” (People v. Battle (2011) 198 Cal.App.4th 50,
72.) In California, battered women’s syndrome evidence may be used to establish either
26.
perfect or imperfect self-defense. (People v. Erickson (1997) 57 Cal.App.4th 1391, 1399;
see also Humphrey, supra, 13 Cal.4th at p. 1086 [expert testimony on effects of spousal
battery is relevant to support imperfect self-defense]; In re Walker (2007) 147
Cal.App.4th 533, 546 [same].) CALCRIM No. 851 instructs on intimate partner
battering and its effects, including whether a defendant “actually believed” she needed to
defend herself “against an immediate threat of great bodily injury or death, and whether
that belief was reasonable or unreasonable.”
Here, the defense did not call an expert witness to opine on appellant’s situation as
an incarcerated prisoner. In any event, nothing shows a history of violence or even prior
threats between appellant and Keel. Appellant told the jury that Keel had been “a good
cellie.” Appellant repeatedly testified that Keel was acting out of character when this
incident started. Appellant’s situation was not at all analogous with a battered woman.
Based on our independent review, the instructions provided to the jury pursuant to
CALCRIM Nos. 505 and 571 accurately stated the law. A threat of future harm is
insufficient to establish either perfect or imperfect self-defense. (Humphrey, supra, 13
Cal.4th at p. 1082; Christian S., supra, 7 Cal.4th at p. 783.) Instead, the fear must be
from imminent harm. (Humphrey, supra, at p. 1082.) Any perceived peril must seem
“ ‘ “immediate and present” ’ ” to a defendant. (Christian S., supra, 7 Cal.4th at p. 783.)
“ ‘This definition of imminence reflects the great value our society places on human
life.’ ” (Ibid.)
It was up to the jury to determine whether or not appellant (either reasonably or
unreasonably) felt threatened from an imminent harm. We disagree that these
instructions caused the jury to misapply the law. Appellant’s claims are without merit
and reversal is not warranted.26
26 Because instructional error did not occur, we do not address appellant’s claims
regarding alleged prejudice.
27.
II. Substantial Evidence Supported an Instruction on Mutual Combat.
Appellant argues that the trial court prejudicially erred in instructing the jury with
CALCRIM No. 3471 regarding the doctrine of mutual combat. He contends that
substantial evidence did not support this instruction.
A. Background.
Based on CALCRIM No. 3471, the trial court instructed the jurors in relevant part
that appellant did not have a right to self-defense if he and Keel had engaged in mutual
combat (or if appellant started the fight). If mutual combat occurred, appellant had a
right to self-defense only if he (1) tried to stop fighting; and (2) communicated to Keel
(through words or conduct) that he wanted to stop fighting; and (3) gave Keel a chance to
stop fighting. If these requirements were met, appellant then had a right to self-defense if
Keel continued to fight. The jurors were told that “[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.” The jurors were
also informed that, when an attacker withdraws or no longer appears capable of inflicting
any injury, then the right to use force ends.
B. Standard of review.
A trial court is obligated to instruct a jury on the general principles of law that are
raised by the evidence. (People v. Diaz (2015) 60 Cal.4th 1176, 1189.) Substantial
evidence must exist for a trial court to provide a particular jury instruction. (People v.
Cole (2004) 33 Cal.4th 1158, 1206.) In this context, substantial evidence would “allow a
reasonable jury to make a determination in accordance with the theory presented under
the proper standard of proof.” (Ibid.) In other words, evidence must exist which is
sufficient to deserve consideration by the jury. (People v. Ross (2007) 155 Cal.App.4th
1033, 1049–1050 (Ross); People v. Oropeza (2007) 151 Cal.App.4th 73, 78.) It is error
for a trial court to give an instruction which, while correctly stating the law, has no
application to the facts of the case. (People v. Cross (2008) 45 Cal.4th 58, 67.)
28.
C. Analysis.
Appellant argues that it was error for the trial court to instruct the jury on the
concept of mutual combat. He relies on Ross, supra, 155 Cal.App.4th 1033. He
maintains that this erroneous instruction barred him from relying on either perfect or
imperfect self-defense.
We reject appellant’s arguments and conclude that substantial evidence supported
the trial court’s decision to instruct the jury regarding the doctrine of mutual combat. We
first address the parties’ dispute regarding forfeiture.
1. We decline to find forfeiture.
During the instructional conference below, the trial court stated its belief that a
mutual combat instruction was appropriate. Appellant’s counsel objected when the trial
court announced its intention to instruct the jury with CALCRIM No. 3471 regarding
mutual combat. However, defense counsel did not give a specific reason for objecting
and the court did not rule on any specific objection, but it asked the parties for discussion
regarding how the instruction should be worded. The court subsequently stated it was up
to the jury to decide the issue, and the court determined it would provide the instruction.
Respondent contends that appellant has not preserved this claim for review.
According to respondent, appellant did not make a specific objection regarding why
CALCRIM No. 3471 should be excluded. Respondent takes the position that this
instruction was a correct statement of law and we should find forfeiture.
In contrast, appellant relies on section 1259, and he also contends that the trial
court erred as a matter of law. Finally, appellant raises a claim of ineffective assistance
of counsel.
We decline to find forfeiture. Although appellant’s trial counsel was not specific,
an objection was lodged against an instruction on mutual combat. In any event, appellant
argues that this disputed instruction should never have been given to the jury, and it
improperly eliminated his ability to raise self-defense. As a result, appellant maintains
29.
that the prosecution’s burden of proof was reduced. If appellant is correct, this alleged
error would impact his substantial rights. As such, this claim is cognizable. (See People
v. Kelly, supra, 42 Cal.4th at p. 791 [declining to find forfeiture based on claim the
disputed instruction “was not correct in law and omitted an element of the offense”].)
Thus, we will analyze this claim.27 However, we reject it on its merits.
2. Substantial evidence supported the trial court’s decision.
The legal term “mutual combat” does not refer merely to a reciprocal exchange of
blows. (People v. Nguyen, supra, 61 Cal.4th 1015, 1044.) Instead, it is a mutual intent or
agreement to engage in hostilities. It is more than the combat itself. (Ibid.) In other
words, “mutual combat” is something that is “prearranged.” (People v. Jackson (2014)
58 Cal.4th 724, 760.) Unless a defendant takes specific steps to desist, a defendant’s
participation in mutual combat may preclude a claim of self-defense against a charge of
assault, or similar offense. (Id. at pp. 760–761.)
In appellant’s cited opinion, Ross, the appellate court noted the inherent conflict
between a layman’s understanding of “mutual combat” and its legal definition. Under a
lay definition, any violent struggle between two or more people, however it came into
being, could be called “mutual combat.” (Ross, supra, 155 Cal.App.4th at p. 1044.)
However, going back to the 1800’s, the legal term “mutual combat” was used to
designate self-defense in homicides committed during duels or other fights begun or
continued by mutual consent or agreement, whether express or implied. (Id. at p. 1045.)
Evidence must exist from which a jury could reasonably find that both combatants
actually consented or intended to fight before the claimed need for self-defense arose.
(Id. at pp. 1046–1047.)
27 It is unnecessary to consider appellant’s claim of ineffective assistance of counsel.
(People v. Smithey, supra, 20 Cal.4th at pp. 976–977, fn. 7.)
30.
In Ross, the male defendant engaged in a verbal exchange with a female victim.
She slapped the defendant, who responded with a blow that fractured her cheekbone.
(Ross, supra, 155 Cal.App.4th at p. 1036.) Over a defense objection, the trial court
instructed the jury that the defendant could not rely on self-defense if he was engaged in
mutual combat with the victim. (Ibid.) During deliberations, the jury asked for the legal
definition of “mutual combat,” and the court told the jurors to rely on the ordinary
meaning of those words. (Ibid.) The appellate court concluded that the jury was
erroneously permitted to believe “that any exchange of blows disqualifies both
participants from claiming a right of self-defense.” (Ibid.) However, this “doctrine
applies only to a violent confrontation conducted pursuant to prearrangement, mutual
consent, or an express or implied agreement to fight.” (Ibid.) The Ross court found
insufficient evidence to establish any such arrangement or agreement, and there was a
substantial basis for the jury to find that the defendant may have acted in self-defense.
Thus, the judgment was reversed. (Ibid.)
Following Ross, CALCRIM No. 3471 was amended in 2008 to define “mutual
combat.” The revision now appearing in this instruction states that “[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.” (CALCRIM No. 3471.) This amended language following Ross was provided to
appellant’s jury as part of the court’s instruction under CALCRIM No. 3471.
Appellant contends that the 2008 revision to CALCRIM No. 3471 did not
correctly implement Ross or solve the problem that Ross addressed. According to
appellant, Ross properly held that the doctrine of mutual combat “originated with parties
who agreed to a prearranged duel.” Appellant argues that the amended language in
CALCRIM No. 3471 that defines “mutual combat” is still susceptible to an erroneous
understanding from jurors that, if A strikes B and B strikes A back in response, then
neither party is entitled to claim self-defense.
31.
Appellant also asserts that, similar to Ross, no evidence from his trial showed a
mutual intent to engage in combat. He maintains that Keel repeatedly started new
assaults of him and threatened to kill him, but he (appellant) merely responded with
greater force each time to meet the new threat. Appellant argues that he continuously
tried to calm down the situation and he tried to get Keel to desist.
Appellant concedes that Ross is factually distinguishable from his situation.
Nevertheless, he asserts that, similar to Ross, there is a lack of evidence that either he or
Keel had an exchange of blows pursuant to a mutual intention, consent or agreement
preceding the initiation of hostilities. Appellant also contends that the instructions given
to his jury failed to convey the essential requirement that both combatants had to actually
consent or intend to fight before the claimed need for self-defense arose. He argues a
“high likelihood” exists that the jury construed the mutual combat instruction in everyday
English.
We find appellant’s various arguments unpersuasive. The trial court stated that
the situation “impliedly” demonstrated a mutual agreement to engage in some level of
mutual combat. The court felt that evidence warranted the instruction. Although the
court did not explain why it believed a mutual combat instruction was appropriate,
substantial evidence supports the court’s decision.
Appellant testified that he turned down his radio and Keel complained because he
was listening to a song. They had an exchange of words and Keel told appellant, “[B]oy,
you think you’re a tough guy, don’t you?”
According to appellant, Keel was drunk and acting out of character. Keel gave
him dirty looks and said he would “bounce” appellant “off everything in this cell.”
Appellant testified that this was “a normal prison threat.” Appellant told the jury that
they had eye contact and a lot of tension. Appellant claimed that he told Keel to calm
down and stop drinking.
32.
According to appellant, Keel got into a fighting stance. Appellant asked Keel if he
was “serious” and if he really wanted “to do this.” Keel said, “[Y]eah, come on.”
Appellant told him, “[Y]ou know, you’re going to lose, right?” Keel said, “[C]ome on,
motherfucker, come on.” Appellant moved towards him and Keel threw the first punch.
They exchanged punches and appellant knocked Keel to the ground.
Appellant told the jury that a person cannot back down in prison or show “any
weakness.” He testified that, when “somebody calls you out” in prison “you have to
accept the challenge.” He said prison is “a masculine society” and a “warrior mentality”
exists. If somebody calls you out, you will look weak if you do not do anything.
Appellant’s own testimony overwhelmingly demonstrated that an instruction of
mutual combat was appropriate. Although Keel made verbal threats, he did not move
towards appellant or otherwise touch him until appellant moved towards him. Indeed,
after Keel took a fighting stance, appellant asked Keel if he was certain that he wanted to
fight, noting that Keel was going to lose. After Keel encouraged appellant to come at
him, appellant moved towards him and Keel threw the first punch. From this, the jury
could reasonably find that appellant and Keel mutually agreed to fight before appellant’s
claim of self-defense arose. (See Ross, supra, 155 Cal.App.4th at pp. 1046–1047.) The
reasonable inferences drawn from appellant’s testimony amply established appellant’s
express or implied agreement to engage in a mutual exchange of blows. Thus, substantial
evidence supports the trial court’s decision to instruct the jury on the doctrine of mutual
combat.
Appellant contends that, when Keel got into his initial fighting stance, he
(appellant) was trying to calm down the situation. Appellant asserts that his statement,
“[Y]ou know, you’re going to lose” was not an agreement to fight but, rather, an attempt
to warn Keel to stop. Appellant also argues it is improper to focus on his initial verbal
exchange with Keel because that is not when the need for perfect or imperfect self-
defense accrued. According to appellant, his need for self-defense arose “after the initial
33.
fracas had ceased.” It was after the initial exchange of blows when Keel said that
appellant had to sleep sometime and “I will cut your throat and fuck you.” While saying
this, Keel was trying to fashion a crude weapon (the drawstring from his shorts).
Appellant maintains that no evidence established the doctrine of mutual combat when
Keel made his threat, which triggered his claim of self-defense. Appellant also notes that
Keel was the only one uttering threats, swearing, demanding a fight and assuming a
fighting stance.
Appellant’s various assertions regarding how to view the evidence do not alter our
conclusion that the trial court did not err. Although appellant can point to other
interpretations that may be drawn from the record, substantial evidence supports the trial
court’s decision to instruct on the doctrine of mutual combat. Appellant’s comments to
Keel, and appellant’s decision to walk towards him, overwhelmingly suggest a mutual
agreement to fight before the first blows were exchanged. Thus, it was a factual issue for
the jury to determine whether mutual combat existed and, if so, whether or not
(1) appellant actually and in good faith tried to stop fighting; (2) he indicated by word or
conduct to Keel (in a way a reasonable person would understand) that he wanted to stop
fighting and he had stopped fighting; and (3) he gave Keel a chance to stop fighting.
(CALCRIM No. 3471.) Thus, this issue was properly presented to the jury for it to
resolve disputed issues of fact.
Finally, we reject appellant’s assertion that the 2008 amendment to CALCRIM
No. 3471 is erroneous. According to Ross, “mutual combat” is “fighting by mutual
intention or consent, as most clearly reflected in an express or implied agreement to
fight.” (Ross, supra, 155 Cal.App.4th at pp. 1046–1047.) Ross cautioned that “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.” (Id. at p. 1047.) The amended language in CALCRIM No. 3471 informs a jury
that “[a] fight is mutual combat when it began or continued by mutual consent or
34.
agreement. That agreement may be expressly stated or implied and must occur before the
claim to self-defense arose.” (CALCRIM No. 3471, italics omitted.) Contrary to
appellant’s assertion, this amended language does not reasonably suggest that, if a person
unexpectedly punches a victim, who fights back, the legal definition of “mutual combat”
is met. We perceive no reasonable likelihood that a jury would interpret this language in
the manner appellant now claims. (See People v. Cross, supra, 45 Cal.4th at pp. 67–68
[defendant must demonstrate a reasonable likelihood a jury instruction was understood as
he interprets it].) Consequently, the amendment to CALCRIM No. 3471 is not defective,
and instructional error is not present.
Based on this record, the trial court did not err in its decision to instruct the jury
with CALCRIM No. 3471 regarding the doctrine of mutual combat. Substantial evidence
supported such an instruction. Accordingly, appellant’s arguments are without merit and
reversal is not warranted.28
III. Instructional Error Did Not Occur with CALCRIM No. 570 and any
Presumed Error is Harmless.
Voluntary manslaughter is codified in California as the unlawful killing of a
human being without malice from either “a sudden quarrel or heat of passion.” (§ 192,
subd. (a).) First enacted in 1872, section 192 does not define either “sudden quarrel” or
“heat of passion.”
In two separate but overlapping claims, appellant contends that CALCRIM No.
570, which defines voluntary manslaughter, is legally flawed in two ways. First, he
asserts an “intense emotion” should not be required to establish “heat of passion.”
Second, he argues that “sudden quarrel” and “heat of passion” must have different
elements, but CALCRIM No. 570 treats them identically.
28 Because substantial evidence supported the trial court’s decision to instruct on the
doctrine of mutual combat, we do not address appellant’s arguments regarding alleged
prejudice.
35.
We use a de novo review to analyze this claim of instructional error. (People v.
Mitchell, supra, 7 Cal.5th at p. 579.) We reject appellant’s arguments and conclude that
CALCRIM No. 570 correctly states the law regarding voluntary manslaughter. We also
find any presumed error harmless. We first address forfeiture.
A. We decline to find forfeiture.
At trial, appellant requested an instruction on heat of passion. As a result,
respondent contends that appellant cannot advance these claims on appeal because he did
not raise his legal arguments below or otherwise object to the language contained in
CALCRIM No. 570.
We decline to find forfeiture. Appellant argues that CALCRIM No. 570 is
erroneous as a matter of law in multiple ways. Thus, appellant’s claims did not require
objections to preserve them for appellate review. (See People v. Kelly, supra, 42 Cal.4th
at p. 791; People v. Smithey, supra, 20 Cal.4th at pp. 976–977, fn. 7.) Likewise, the
doctrine of invited error is inapplicable here. (See People v. Moore, supra, 51 Cal.4th at
p. 410.) Consequently, we will review the merits of appellant’s assertions. However, we
determine that instructional error did not occur.29
B. The requirements of CALCRIM No. 570.
CALCRIM No. 570 states that for both “sudden quarrel” and “heat of passion”
jurors must determine (1) whether the defendant was provoked; (2) whether as a result of
the provocation the defendant acted rashly and under the influence of intense emotion
that obscured his reasoning or judgment; and (3) whether the provocation would have
caused a person of average disposition to act rashly and without due deliberation; in other
words, “from passion rather than from judgment.” (CALCRIM No. 570.)
29 Because we will review the merits of appellant’s arguments, it is unnecessary to
consider appellant’s claim of ineffective assistance of counsel. (See People v. Smithey,
supra, 20 Cal.4th at pp. 976–977, fn. 7.)
36.
The term “sudden quarrel” is not defined in CALCRIM No. 570.30 In contrast, it
does discuss “heat of passion.” It states that “[h]eat of passion does not require anger,
rage, or any specific emotion. It can be any violent or intense emotion that causes a
person to act without due deliberation and reflection.” The instruction also states that
“[i]n order for heat of passion to reduce a murder to voluntary manslaughter, the
defendant must have acted under the direct and immediate influence of provocation as
[the trial court has] defined it. While no specific type of provocation is required, slight or
remote provocation is not sufficient. Sufficient provocation may occur over a short or
long period of time.” (CALCRIM No. 570.) Appellant’s jury was instructed on these
concepts.
C. CALCRIM No. 570 correctly instructs regarding “heat of passion.”
In appellant’s first argument, he asserts it is legally improper to require a
defendant to experience or manifest an “intense emotion” for voluntary manslaughter to
exist. He contends that the real issue is whether a defendant’s reason was obscured in a
manner that would cause ordinary people to act rashly or without due deliberation. He
argues that even a stoic person can have his reason obscured without that person
exhibiting intense emotion. Appellant concedes that the word “passion” can refer to
intense or violent emotions, but he argues that such a definition is not exclusive. He cites
Google Books, which shows a dictionary entry from 1828 that states the word “passion”
has historically also meant “[a]ny effect caused by external agency; susceptibility of
effect from external action.” (Johnson & Walker, A Dictionary of the English Language
(1828) p. 526.) He notes that a modern dictionary definition of “passion” encompasses a
30 According to the online version of Merriam-Webster, “quarrel” as a noun means
in relevant part: (1) “a ground of dispute or complaint” or (2) “a usually verbal conflict
between antagonists.” As a verb, this word means: (1) “to find fault” or (2) “to contend
or dispute actively.” ( [as of
June 6, 2022].)
37.
similar alternative definition of “the state or capacity of being acted on by external agents
or forces.” ( [as of June 6, 2022].)
Appellant argues that these dictionary definitions, and not a focus on emotion, should be
the legal foundation for establishing voluntary manslaughter based on “heat of passion.”
We reject appellant’s arguments. In 1856, the California Supreme Court wrote
that, in order to reduce murder to manslaughter, it is “necessary to establish some
provocation apparently sufficient to render the passion irresistible.” (People v.
Freeland (1856) 6 Cal. 96, 98.) About 60 years later, our high court wrote that the
fundamental inquiry for heat of passion is whether or not a defendant’s reason “was, at
the time of his act, so disturbed or obscured by some passion—not necessarily fear and
never, of course, the passion for revenge—to such an extent as would render ordinary
men of average disposition liable to act rashly or without due deliberation and reflection,
and from this passion rather than from judgment.” (People v. Logan (1917) 175 Cal. 45,
49.)
In 1958, the high court held that “ ‘passion’ ” does not necessarily mean
“ ‘rage’ or ‘anger.’ ” (People v. Borchers (1958) 50 Cal.2d 321, 329.) The Supreme
Court noted in the same opinion that, according to a dictionary definition, “ ‘passion’
may be any ‘Violent, intense, high-wrought, or enthusiastic emotion.’ [Citation.]” (Ibid.)
In 2013, our Supreme Court wrote that, to be adequate, any “provocation must be
one that would cause an emotion so intense that an ordinary person would simply react,
without reflection.” (People v. Beltran (2013) 56 Cal.4th 935, 949 (Beltran).) Any
“anger or other passion must be so strong that the defendant’s reaction bypassed his
thought process to such an extent that judgment could not and did not intervene. Framed
another way, provocation is not evaluated by whether the average person would act in a
38.
certain way: to kill. Instead, the question is whether the average person would react in a
certain way: with his reason and judgment obscured.”31 (Ibid.)
At least one appellate court has already concluded that CALCRIM No. 570
accurately states the law. (See People v. Jones (2014) 223 Cal.App.4th 995, 1001.) We
see no reason to dispute that holding. CALCRIM No. 570’s language regarding an
“intense emotion” is based on prior pronouncements from our Supreme Court, and we are
bound by those prior decisions. (Auto Equity Sales, Inc. v. Superior Court, supra, 57
Cal.2d at p. 455.) Even if the high court’s statements could be characterized as dicta,
statements of the Supreme Court are generally considered persuasive and lower courts
should generally follow its dicta. (Hubbard v. Superior Court, supra, 66 Cal.App.4th at
p. 1169; People v. Trice (1977) 75 Cal.App.3d 984, 987.) Accordingly, the trial court did
not err in instructing the jury with CALCRIM No. 570.
Appellant relies on two opinions: (1) People v. Elmore (1914) 167 Cal. 205(Elmore) and (2) State v. Johnson (Minn. 2006) 719 N.W.2d 619 (Johnson). These
authorities do not alter our conclusion that instructional error did not occur.
1. Elmore.
In Elmore, the defendant was in a saloon when the decedent began to harass an
older patron, and the defendant intervened. (Elmore, supra, 167 Cal. at pp. 207–208.)
After a verbal exchange, the decedent slapped the defendant’s head and challenged him
to a fight. The defendant said he did not want to fight and he asked the decedent to leave
him alone, noting that the decedent was a much younger man. (Id. at p. 208.) A short
31 Appellant cites Beltran for the “correct legal standard.” According to appellant,
Beltran establishes that a defendant must act “not out of rational thought but out of
unconsidered reaction to the provocation.” (Beltran, supra, 56 Cal.4th at p. 942.)
Appellant argues that Beltran does not require a defendant to have experienced intense
emotion, and any instruction that incorporates such a requirement is erroneous. We are
not convinced. In that same opinion, the Beltran court stated, “To be adequate, the
provocation must be one that would cause an emotion so intense that an ordinary person
would simply react, without reflection.” (Id. at p. 949.)
39.
time later, the decedent rushed at the defendant and struck him several times. The
defendant fatally cut the decedent’s neck with a knife. (Ibid.) A jury found the defendant
guilty of second degree murder. (Id. at p. 207.)
According to the Supreme Court, the evidence showed either self-defense or a heat
of passion from the decedent’s “unprovoked attack and violent blows.” (Elmore, supra,
167 Cal. at p. 211.) The court believed that “[t]he blows given would naturally arouse a
sudden passion.” (Ibid.) The circumstances tended to show that the defendant “was
acting in good faith and really desired to avoid any quarrel or difficulty.” (Ibid.) The
high court reversed the defendant’s judgment. (Id. at p. 212.)
Appellant contends that Elmore is “similar” to his case. He argues that, like the
defendant in Elmore, he repeatedly warned Keel not to come at him. He also contends
that, like the defendant in Elmore, he did not want to fight.
We disagree that Elmore is similar to the present matter or that it assists appellant.
The high court in Elmore did not address alleged instructional error. Instead, it focused
on whether sufficient evidence supported the verdict. It determined that a reasonable jury
could not have found the defendant guilty of second degree murder based on the facts
presented. (Elmore, supra, 167 Cal. at pp. 211–212.) In contrast to Elmore, appellant
does not assert that his judgment is improper due to insufficient evidence. Moreover,
appellant’s jury was properly instructed on the law. Based on the verdict rendered, it is
apparent that the jury rejected any argument that appellant’s crime should be reduced to
voluntary manslaughter. Elmore is inapposite to the present situation and it does not
require reversal of appellant’s judgment.
2. Johnson.
In Johnson, an opinion from the Supreme Court of Minnesota, a jury found the
defendant guilty of second degree murder for the shooting death of his girlfriend.
(Johnson, supra, 719 N.W.2d at p. 622.) The girlfriend died instantly from a single
40.
gunshot to the top of her head. The pistol used to kill her was found in her hand. (Ibid.)
The state’s theory was that the defendant killed her and then shot himself to make it look
like he did not intentionally kill her. The defendant testified that she shot him first, and
he could not remember what happened after she shot him. He did not deny that he shot
her. The trial court refused to instruct the jury on either heat of passion or self-defense.
(Ibid.) The Minnesota Supreme Court concluded that the trial court had prejudicially
erred and a new trial was necessary. (Id. at p. 632.)
Although the record strongly supported an argument that the defendant was not
angry and he had remained calm before and after the shooting, it was the defendant’s
emotional state at the time of the killing that was the primary issue. (Johnson, supra, 719
N.W.2d at pp. 626–627.) At trial, the defendant was generally described as having a very
calm and mellow character. (Id. at p. 624.) There was “very little direct evidence” of the
defendant’s emotional state when the killing occurred. (Id. at p. 627.) However, some
evidence supported the defendant’s claim that he had acted in the heat of passion,
particularly when viewed in the light most favorable to the defense. (Ibid.) He was shot
after arguing with his girlfriend, and she had been hitting and kicking him. An
eyewitness testified that, after the first shot, the defendant had a look of “ ‘disbelief’ or
‘shock’ on his face.” (Ibid.) The high court concluded that such a look is consistent with
someone whose reason was clouded or willpower weakened, but it could also be
consistent with a very calm demeanor. Viewing the evidence in the light most favorable
to the defense, a rational jury could have made a reasonable inference that the
defendant’s reasoning was clouded and his willpower weakened at the time of the
shooting. (Ibid.) Moreover, a jury could also determine that the defendant “engaged in
an increasingly heated argument” with his girlfriend “that escalated to a physical
altercation” when she shot him, which provoked him to shoot her back “just seconds
later.” (Id. at p. 628.) Thus, evidence supported the defendant’s claim that he had acted
in a heat of passion. (Ibid.)
41.
Appellant argues that Johnson stands for the proposition that a characteristically
calm person can remain calm even during a stressful event and still rely on the doctrine of
heat of passion. Appellant contends that ample evidence supports his position that Keel
sufficiently provoked him so that he (appellant) simply reacted without rational thought.
Appellant reiterates that Keel was drunk, angry, and he made a death threat. Appellant
maintains that such a threat had meaning in the prison context. Keel had a “track record
of slitting someone’s throat.” Appellant insists that this evidence amounted to legally
sufficient provocation. Finally, appellant acknowledges he is not emotional by nature,
and he appeared “calm” and “cold” after killing Keel. However, he argues he was upset
about killing his friend, but he could not show emotion in prison.
Appellant’s arguments are without merit and Johnson does not require reversal of
his judgment. First, Johnson did not analyze California law, and cases are not authority
for propositions not considered or decided. (Loeffler v. Target Corp., supra, 58 Cal.4th at
p. 1134.) Moreover, as an out-of-state opinion, Johnson has no binding authority in
California. (See Episcopal Church Cases, supra, 45 Cal.4th at p. 490; accord, Arteaga v.
Superior Court, supra, 233 Cal.App.4th at p. 868.) In any event, Johnson is
distinguishable. Unlike what occurred in Johnson, appellant’s jury received a legally
correct instruction regarding heat of passion. Appellant explained at trial why and how
he delivered the fatal kicks to Keel’s head. It was the jury’s role to determine (1) whether
or not appellant was provoked; (2) whether or not as a result of the provocation he acted
rashly and under the influence of intense emotion that obscured his reasoning or
judgment; and (3) whether or not the provocation would have caused a person of average
disposition to act rashly and without due deliberation; in other words, “from passion
rather than from judgment.” (CALCRIM No. 570.) Johnson does not establish
instructional error in this matter.
Based on this record, the trial court properly instructed the jury with CALCRIM
No. 570 regarding heat of passion. This instruction correctly conveyed the law.
42.
Therefore, reversal is not warranted and this claim is without merit. In any event, we also
conclude later in this opinion that any presumed instructional error is harmless.
D. CALCRIM No. 570 correctly instructs regarding “sudden quarrel.”
In appellant’s second claim, he argues that CALCRIM No. 570 is legally flawed
because it does not differentiate between “sudden quarrel” and “heat of passion.”
Because these terms appear in section 192, subdivision (a), with the disjunctive “or”
between them, appellant contends that these concepts must have different legal meanings.
According to appellant, if they have no distinct legal definition, portions of section 192,
subdivision (a), would be rendered meaningless or redundant, which violates principles
of statutory construction.32 He asserts it is inappropriate to look at common law
definitions because criminal laws in California are based solely on statutes.33
Appellant’s arguments are unpersuasive. Contrary to his assertion, it is proper for
us to examine the common law when analyzing the meaning of “sudden quarrel” and
“heat of passion.” Our Supreme Court makes it clear that many provisions of the Penal
Code were enacted using common law terms, and those terms “must be interpreted in
light of the common law.” (People v. Chun, supra, 45 Cal.4th at p. 1183.) In fact, a
presumption exists that the Legislature intended for a statute couched in common law
language to continue those common law rules in statutory form. (Id. at p. 1184.) Thus,
“we are free to look to the common law to supply the requisite certainty to an existing
statute.” (People v. Heitzman (1994) 9 Cal.4th 189, 212, fn. 19.)
Neither party cites any authority explaining the legal concept of “sudden quarrel”
or how that interacts with or perhaps differs from “heat of passion.” We have failed to
32 The California Supreme Court has stated that a court should avoid interpreting a
statute in a way that renders its language meaningless. (Plantier v. Ramona Municipal
Water Dist. (2019) 7 Cal.5th 372, 386.)
33 In general, California does not recognize nonstatutory crimes. (People v.
Chun (2009) 45 Cal.4th 1172, 1183; see § 6.)
43.
discover any California authorities which discuss this issue. However, some federal
opinions are instructive.
Mirroring the law in California, federal law defines voluntary manslaughter as an
unlawful killing of a human being without malice occurring “[u]pon a sudden quarrel or
heat of passion.” (18 U.S.C. § 1112(a).) Federal courts have concluded that, based on
the historical development from the common law, there is no legal difference between
“sudden quarrel” and “heat of passion.” (See United States v. Martinez (7th Cir. 1993)
988 F.2d 685, 694; United States v. McRae (5th Cir. 1979) 593 F.2d 700, 705.) Instead,
the common law concept of “sudden quarrel” evolved over hundreds of years to merge
with the common law doctrine of “heat of passion.” (See United States v. Martinez,
supra, 988 F.2d at pp. 691–692 [detailing in depth the historical underpinnings of
“sudden quarrel” and “heat of passion”].) As one federal court has noted, a mere quarrel
occurring without passion would be insufficient to reduce murder to voluntary
manslaughter. (United States v. McRae, supra, 593 F.2d at p. 705.)
The California Supreme Court makes it clear that a person who intentionally kills
as a result of provocation—either a sudden quarrel or heat of passion—lacks malice and
is guilty not of murder but of the lesser offense of voluntary manslaughter. (People v.
Lasko (2000) 23 Cal.4th 101, 108.) The key issue in California is whether provocation
would have caused a person of average disposition to act rashly and without due
deliberation. (See CALCRIM No. 570.) More than “mere words” are needed. (Beltran,
supra, 56 Cal.4th at p. 948.) No matter how grievous they are, words or gestures are
generally not sufficient to reduce murder to manslaughter. (People v. Dixon (1961) 192
Cal.App.2d 88, 91; see also People v. Lucas (1997) 55 Cal.App.4th 721, 739 [smirks,
dirty looks or yelling provocative names did not reasonably establish provocation to
shoot].)
Based on the foregoing, we reject appellant’s assertion that “sudden quarrel” and
“heat of passion” require different legal elements. These terms merged at common law,
44.
and nothing rebuts a presumption that our Legislature intended for section 192,
subdivision (a), to continue those common law definitions. CALCRIM No. 570 properly
conveys the law that voluntary manslaughter—whether based on a sudden quarrel or heat
of passion—requires adequate provocation. Consequently, there is no reasonable
likelihood the jury applied this instruction in an impermissible manner. Therefore,
instructional error did not occur. In any event, we find any presumed error harmless.
E. Any presumed error is harmless.
The parties dispute the appropriate standard of review to analyze prejudice.
Appellant relies on Chapman v. California (1967) 386 U.S. 18 (Chapman). Under
Chapman, the beneficiary of a federal constitutional error must prove beyond a
reasonable doubt that the error did not contribute to the verdict. (Id. at p. 24.) In the
alternative, appellant maintains that prejudice occurred even if the state standard is used
under People v. Watson (1956) 46 Cal.2d 818 (Watson). Under Watson, the question is
whether it is “reasonably probable that a result more favorable to the appealing party
would have been reached in the absence of the error.” (Id. at p. 836.) Respondent urges
us to use Watson.
We need not resolve the appropriate standard of review in this situation. Instead,
any presumed instructional error was harmless under both standards. Appellant told the
jury that, just before he delivered the final blows to Keel’s head, appellant decided he
was “going to make sure [Keel was] hurt, that he’s leaving and this situation is over.”
Appellant then repeatedly kicked Keel’s head, causing extensive fractures to his skull.
While those fatal blows were delivered, Keel was lying face down and he was
nonresponsive. Appellant then took a cord and placed it around Keel’s neck. Appellant
pulled up so that Keel’s head and chest were lifted off the ground. Keel was limp when
appellant pulled him up with the cord. At trial, appellant agreed that he left the ligature
45.
marks on Keel’s neck. He agreed that, around that time, he could “kind of tell” that Keel
was dead.
Appellant testified that, after the fight ended, he knew he was going to be
segregated in “the hole.” During the approximate 20-minute period before a correctional
officer responded, appellant sent some of his personal property, such as his wristwatch
and CD’s, over to Fortini. Appellant took off his work boots and he put on sneakers.
Appellant told the jury that he realized his actions sounded “cold” because Keel was
lying unresponsive on the floor and dying (or already dead) but “that’s how our minds
operate in prison.” He said it was normal for a prisoner headed to the hole to want to
protect his personal property.
Multiple officers heard appellant say words to the effect that Keel was dead and it
was pointless to render medical aid to him. At trial, appellant agreed with the officers’
general testimony that he had appeared calm or cold after this homicide. He told the jury
that he does not get very emotional and he lives in a violent world. According to
appellant, a person cannot show emotion in prison. However, appellant claimed to the
jury that he was upset about what had happened because Keel had been his friend.
Appellant told the jury that, because inmates do not talk to law enforcement, he did not
share with the officers that day what had happened in the cell with Keel.
Appellant’s own testimony overwhelmingly established that his reasoning or
judgment was not obscured when he killed Keel. (See CALCRIM No. 570.) To the
contrary, it is readily apparent that appellant calculated how and when he would end this
fight. Further, almost immediately after pulling on Keel’s neck with the cord, appellant
organized his property in anticipation of going into solitary confinement. He appeared
very calm and cold when speaking with law enforcement just after this fatal incident. All
46.
of this is additional circumstantial evidence overwhelmingly showing that appellant
exercised reason and due deliberation when he decided to fatally stomp on Keel’s head.34
Based on this record, we can declare beyond any reasonable doubt that the alleged
instructional errors in CALCRIM No. 570 did not contribute to the verdict. (See
Chapman, supra, 386 U.S. at p. 24.) In addition, it is not reasonably probable a result
more favorable to appellant would have been reached in the absence of the alleged errors.
(See Watson, supra, 46 Cal.2d at p. 836.) Accordingly, any presumed instructional error
is harmless. Therefore, appellant’s claims are without merit and reversal is not
appropriate.
IV. Cumulative Error Did Not Occur.
Appellant raises a claim of cumulative error. “Under the ‘cumulative error’
doctrine, errors that are individually harmless may nevertheless have a cumulative effect
that is prejudicial.” (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) A claim of
cumulative error is essentially a due process claim. (People v. Rivas (2013) 214
Cal.App.4th 1410, 1436.) The test is whether the defendant received a fair trial. (Ibid.)
Appellant’s claim of cumulative error is without merit because we have rejected
all individual claims. (People v. Bradford (1997) 14 Cal.4th 1005, 1057 [cumulative
prejudice argument rejected because each individual contention lacked merit or did not
result in prejudice].) Taking all of appellant’s arguments and claims into account, we are
satisfied that he received a fair adjudication.
34 During closing arguments, the prosecutor asserted that appellant had shown no
emotion and voluntary manslaughter was inapplicable because appellant had not acted
under an “intense emotion” when he killed Keel. In light of appellant’s testimony
regarding how and why he killed Keel, the prosecutor’s arguments about an “intense
emotion” do not alter our conclusion that any presumed instructional error is harmless.
47.
V. We Strike the Parole Revocation Fine.
The parties agree, as do we, that the trial court improperly imposed a suspended
parole revocation fine pursuant to section 1202.45, subdivision (a). While a section
1202.45 parole revocation fine is mandatory whenever a section 1202.4 restitution fine is
imposed, such a fine is not authorized when the sentence does not encompass a period of
parole. (See People v. DeFrance (2008) 167 Cal.App.4th 486, 505; see also People v.
Jenkins (2006) 140 Cal.App.4th 805, 819; cf. People v. Brasure (2008) 42 Cal.4th 1037,
1075 [parole revocation fine proper where defendant, in addition to being sentenced to
death, also sentenced to determinate term].)
Appellant was sentenced to LWOP, consecutive to the indeterminate term he was
already serving when this crime occurred. He was not sentenced to any determinate term.
Thus, the parole revocation fine was improper. Accordingly, we will strike this fine.
DISPOSITION
The judgment is modified. We strike the parole revocation fine imposed pursuant
to section 1202.45. The superior court is directed to prepare an amended abstract of
judgment reflecting this modification, and to provide the amended abstract to the
appropriate authorities. As modified, the judgment is otherwise affirmed.
LEVY, Acting P. J.
WE CONCUR:
MEEHAN, J.
DE SANTOS, J.
48.