California Court of Appeals, Fourth District, Third Division
Appeal from a judgment of the Superior Court of Riverside County, No. RIF148423 Christian F. Thierbach, Judge.
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Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant Victor Ramirez, Jr.
Eric Multhaup, under appointment by the Court of Appeal, for Defendant and Appellant Armando Ramirez.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
ARONSON, ACTING P. J.
A jury convicted Victor Espudo Ramirez, Jr., and his brother Armando Apolinar Ramirez of first degree murder (Pen. Code, § 187, subd. (a); all further statutory references are to this code) and active participation in a criminal street gang (§ 186.22, subd. (a)). The jury found true a gang special circumstance allegation on the murder count (§ 190.2, subd. (a)(22)), and also found true a gang enhancement (§ 186.22, subd. (b)) and firearm enhancement (§ 12022.53, subds. (d), (e)) on that count.
Defendants contend the trial court erroneously prevented the jury from considering their self-defense claim by instructing the jury categorically that “[a] person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force.” (CALCRIM No. 3472.) The prosecutor argued repeatedly based on the plain terms of this instruction that even if the jury believed defendants sought to provoke only a fistfight, their bare intent “to use force” as stated in the instructioneven nondeadly fisticuffsmeant they forfeited a claim of imperfect self-defense. We hold the instruction misstated the law. A person who contrives to start a fistfight or provoke a nondeadly quarrel does not thereby “forfeit his right to live.” (People v. Conkling (1896) 111 Cal. 616, 626 [44 P. 314] (Conkling). Instead, he may defend himself “even when the defendant set in motion the chain of events that led the victim to attack the defendant.” (People v. Vasquez (2006) 136 Cal.App.4th 1176, 1179-1180 [39 Cal.Rptr.3d 433] (Vasquez).)
The trial court sentenced defendants to life in prison without the possibility of parole, plus a term of 25 years to life for the firearm use. Based on the instructional error, we reverse the judgment.
In January 2009, defendants were members of the street gang known as La Sierra Brown Knights (La Sierra). Armando lived with his mother, her boyfriend, Armando’s sister, his fiancée, and his son. For several months, members of one of La Sierra’s rivals, the street gang known as Tiny Winos, would drive by Armando’s house, flashing gang signs and guns. On two occasions they shot at the house.
On January 27, 2009, Victor called his friend, Steven Arevalos, who was also a member of La Sierra, to try to put an end to the harassment. Arevalos agreed to accompany Victor and Armando, believing they were “just gonna go over there and just confront them and, if anything, we were just gonna fight.” Arevalos agreed to drive but vetoed Armando’s request to bring a gun, even though Arevalos believed their adversaries would be armed. Armando seemed to comply with Arevalos’s request, returning into his home to stash his.38-caliber handgun, but Armando thought better of leaving the gun behind because he knew first hand the Tiny Winos gang carried weapons, having shot up his house. He put the gun in his sweatshirt pocket and returned to Arevalos’s car. He did not set out intending to shoot anyone.
Armando and Victor hoped they could find Mario, a Tiny Winos member who earlier had interceded at Victor’s request to stop the harassment. At that time, Armando and Victor’s mother had been seeing Mario’s uncle, but the pair no longer dated.
Defendants and Arevalos drove to an apartment complex to look for Mario. Instead, they found Ruben Rivera and six or seven other Tiny Winos members in front of the building. Members of the group later acknowledged at trial that defendants asked to no avail for “Mario, ” and that a Tiny Winos gang member may have thrown the first punch.
Other testimony suggested Armando, Victor, and Arevalos confronted the group aggressively, demanding to know, “Do you have a problem with La Sierra, ” and issuing the gang challenge, “Where you from?” A fistfight broke out “instaneous[ly].” The prosecution’s gang expert explained at trial that in a confrontation between members of rival gangs, “[W]hen they’re asking you where you’re from, they’re specifically asking you whet gang you claim, and that’s the purpose of it.” The question is known as “hitting up” a rival. The expert testified that in his experience, “[M]ore often than not, when somebody gets hit up by a rival gang member, there’s generally going to be some kind of violence, at the minimum, a fistfight.”
Armando testified that as soon as the fight broke out, Arevalos and Victor were each double-teamed by Tiny Winos assailants. “Two or three” guys were on Victor and Arevalos had “two or three guys on him.” Armando stepped back from the fighting as Rivera walked toward the group. Armando testified “it looked like [Rivera] had something black in his hand, ” and as Rivera approached, he raised his hand, holding an object that “looked like a gun.” Armando pulled his gun from his sweatshirt pocket and fatally shot Rivera. The fighting stopped, and defendants and Arevalos sped away in their car. Other than Armando’s testimony, no evidence showed Rivera or any of the other Tiny Winos members had a gun that night. Armando claimed he reacted in self-defense and to defend his companions.
Defendants contend the trial court’s instructions prevented the jury from considering their self-defense claim, an error the prosecutor compounded by repeated misstatement of the law reflected in those instructions. Under the facts of this case, we agree.
“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.]’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154 [77 Cal.Rptr.2d 870, 960 P.2d 1094].) This instructional duty “prevents the ‘strategy, ignorance, or mistakes’ of either party from presenting the jury with an ‘unwarranted all-or-nothing choice, ’ encourages ‘a verdict... no harsher or more lenient than the evidence merits’ [citation], and thus protects the jury’s ‘truth ascertainment function’ [citation].” (Id. at p. 155, original italics.)
Here, defendants argue the trial court’s instruction on contrived self-defense erroneously directed the jury to conclude a person has no right of self-defense against an adversary’s deadly attack, even if the defendant contrived to provoke a confrontation to use only nondeadly force against the adversary. The trial court instructed the jury with CALCRIM No. 3472, including its title, “Right to Self-Defense: May Not Be Contrived.” The instruction provided: “A person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to ...