Filed 11/19/13 P. v. Lopez CA2/6
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.111.5.


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       SECOND APPELLATE DISTRICT

                                                     DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B243343
                                                                          (Super. Ct. No. 2010030236)
     Plaintiff and Respondent,                                                 (Ventura County)
v.
EDUARDO CERVANTES LOPEZ,
     Defendant and Appellant.


                   Eduardo Cervantes Lopez appeals his conviction by jury of assault with a
                                                                 1
deadly weapon (Pen. Code, § 245, subd. (a)(1)) with special findings that he personally
inflicted great bodily injury on the victim (§ 12022.7, subd. (a)) and committed the assault
for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)).
Appellant admitted two prior prison term enhancements (§ 667.5, subd. (b)) and was
sentenced to eight years state prison. Appellant contends that the trial court erred in not
giving a Hecker instruction (People v. Hecker (1895) 109 Cal. 451) on the use of deadly
force to repel a sudden and perilous threat by an opponent in a fist fight. We affirm.
                                           Facts and Procedural History
                   On the afternoon of August 23, 2012, appellant confronted Bobby Dominquez
as he worked on a car outside an Oxnard apartment. Appellant, an active member of the El
                                                                                                   2
Rio Troublestreet gang, asked in an angry voice "Ey, where you from?" It was a gang term

1
    All statutory references are to the Penal Code.
2
    Appellant was 36 years old and went by the moniker Pleito which means "fight."
likely to lead to violence.   Dominquez, a member of the Colonia Chiques street gang,
answered "What's it to you" and resumed work. Appellant replied, "I'm asking you a
fucking question, dog . . . . Where you from?"
              Rafael Gonzalez, Dominguez's friend, watched as Dominguez argued with
appellant. At some point, appellant said "Fuck Colonia" and, taunting Gonzalez and
Dominguez, said "What? Are you both going to jump me?" Gonzalez stepped back and
said "No, it's one on one." Appellant said, "Let's take it to the alley" and exchanged punches
with Dominquez.
              Dominguez punched appellant on the side of the head, causing appellant to
fall down on one knee. Appellant drew a large kitchen knife from his pocket, said "Big bad
El Rio," and stabbed Dominguez twice in the chest and once in the abdomen.
              Oxnard Police arrested appellant minutes later. Appellant had already
changed his shoes, shirt and pants, and hid the knife. Officers searched appellant's bedroom
and found drug paraphernalia, a glass smoking pipe, a metal box and notebook with the
words "El Rio" printed on it, and a syringe commonly used to inject heroin. A kitchen knife
was hidden under the couch cushion.
              Rafael Gonzales told the police that appellant provoked the fight when he
challenged Dominguez and said, "Fuck Colonia." Gonzalez did not recall who threw the
first punch but did see appellant stab Dominguez and run. This was corroborated by the
neighbor, 14-year-old Cynthia G., who heard yelling and saw appellant stab Dominguez.
No one saw Dominguez with a weapon.
              At trial, appellant claimed that Dominguez was the aggressor and took his
shirt off and shouted "Colonia Chiques." Appellant was concerned because he was on
Colonia Chiques gang turf and feared that Dominguez and Gonazalez would "beat me till I
am dead or lose conscious[ness]." On cross-examination, appellant admitted that
Dominguez did not have a weapon, that he did not know anything about Dominguez or
Gonzalez, and that it was a one-on-one fight.
              The prosecution argued that mutual combat and self-defense were the only
issues. Defense counsel told the jury that appellant had the right to stand his ground and the


                                                2
prosecution has "to disprove self-defense. It has been raised. It is before you." The trial
court instructed on the right to self-defense (CALCRIM 3470), right to self-defense: mutual
combat or initial aggressor (CALCRIM 3471), and that self-defense cannot be contrived
(CALCRIM 3472).
                                      Hecker Instruction
              Appellant contends that the trial court erred in not instructing on the right to
respond with deadly force when faced with a sudden and perilous threat of force by an
opponent. (People v. Hecker, supra, 109 Cal. 451 (Hecker).) The trial court gave
                                                     3
CALCRIM 3471 on self defense in mutual combat but denied appellant's request to instruct
on the bracketed part of the instruction which states: "[I]f the defendant used only non-
deadly force, and the opponent responded with such sudden and deadly force that the
defendant could not withdraw from the fight, then the defendant had the right to defend
himself with deadly force and was not required to try to stop fighting or communicate the
desire to stop to the opponent, or give the opponent a chance to stop fighting." (Judicial
Council of California, Criminal Jury Instructions (2013) CALCRIM 3471, p. 963.)
              The trial court refused to give the Hecker instruction because there was no
evidence that Dominguez was armed or used deadly force. It did not err. A defendant is
entitled to an instruction that pinpoints his theory of the defense, providing the instruction is
supported by substantial evidence. (People v. Johnson (2009) 180 Cal.App.4th 702, 707.)
"Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is
evidence that a reasonable jury could find persuasive." (People v. Barton (1995) 12 Cal.4th
186, 201, fn. 8.)

3
  The jury was instructed: "A person who engages in mutual combat or who starts a fight
has a right to self-defense only if: [¶] 1. He actually and in good faith tried to stop
fighting; [¶] AND [¶] 2. He indicated, by word or by conduct, to his opponent, in a way
that a reasonable person would understand, that he wanted to stop fighting and that he had
stopped fighting; [¶] AND [¶] 3. He gave his opponent a chance to stop fighting. [¶] If
the defendant meets these requirements, he then had a right to self-defense if the opponent
continued to fight. [¶] 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."


                                                3
              Appellant claims that a pugilist can lawfully use deadly force to repel a
"sudden and perilous"counterattack such as a blow to the head because "perilous" is
something less than "deadly." The argument fails because a Hecker instruction requires that
"the opponent respond with such sudden and deadly force that the defendant could not
withdraw from the fight." That is the language of CALCRIM 3471, which is consistent with
Hecker: "Where one is the first wrongdoer, but his unlawful act is not felonious, as a simple
assault upon the person of another, . . . and this unlawful act is met by a counter assault of a
deadly character, the right of self-defense to the first wrongdoer is not lost. . . [O]ne may
always defend himself against a criminal attempt to take his life. . . . If, however, the
counter assault be so sudden and perilous that no opportunity be given to decline or to make
known to his adversary his willingness to decline the strife, if he cannot retreat with safety,
then as the greater wrong of the deadly assault is upon his opponent, he would be justified in
slaying, forthwith, in self-defense. [Citations.]" (Hecker, supra, 109 Cal. at p. 464.)
              Appellant asserts that the court in Hecker must have used "perilous" more
broadly than "deadly" because the right to kill in self-defense arises when one perceives an
imminent danger of great bodily injury. (See In re Christian S. (1994) 7 Cal.4th 768, 773.)
But that holds truly only when one is "without fault." (Hecker, supra, 109 Cal. at p. 462.)
Self-defense "may not be invoked by a defendant who, through his own wrongful conduct
(e.g., the initiation of a physical assault or the commission of a felony), has created
circumstances under which his adversary's attack or pursuit is legally justified. [Citations.]"
(In re Christian S., supra, 7 Cal.4th at p., 773, fn. 1.) When one is the initial aggressor, one
must withdraw before using lethal self-defense unless his attack is not felonious and met by
a counterassault of a deadly character "so sudden and perilous" that withdrawal is
impossible. (Hecker, supra, 109 Cal. at p. 464.)
              Appellant instigated the fight and was knocked down with a punch to the
head. The blow was sudden but did not involve a weapon or deadly force. Appellant
quickly got to his feet, and stabbed Dominguez. Rather than turn and run (i.e., withdraw
from the fray), appellant stabbed Dominguez two more times. Self-defense may be resorted
to in order to repel force, but not to inflict vengeance. (Levenson & Riccardulli, Cal.


                                                4
Criminal Law, The Rutter Group (2012) § 4.27, p. 4-39, fn. 2; People v. Trevino (1988) 200
Cal.App.3d 874, 879.)
              Appellant opines that the punch to the head was a "perilous" threat of force,
justifying the use of deadly force to repel more punches to the body. If that was the law,
every person on the losing end of a fist fight could use a knife or a firearm to overcome his
opponent. Hecker requires that "the attack [be] so sudden and perilous that [defendant]
cannot withdraw." (People v. Sawyer (1967) 256 Cal.App.2d 66, 75, fn. 2.) The Hecker
instruction is derived from the principle that "[s]elf-defense is not available as a plea to a
defendant who has sought a quarrel with the design to force a deadly issue and thus, through
his fraud, contrivance, or fault, to create a real or apparent necessity for [the assault].
[Citation.] . . . [¶] It is not available as a plea to one who by prearranged duel, or by
consent, has entered into a deadly mutual combat, in which he slays his adversary. "
(People v. Hecker, supra, 109 Cal. at p. 462.)
              That is the basis for the CALCRIM 3472 instruction, to which appellant did
not object. The jury was instructed that "[a] person does not have the right to self-defense if
he or she provokes a fight or quarrel with the intent to create an excuse to use force." (See
Fruglia v. Sala (1936) 17 Cal.App.2d 738, 743.) The trial court reasonably concluded that a
Hecker instruction was not supported by the evidence. Appellant provoked the fight, agreed
to fight Dominguez one-on-one, and suddenly escalated to deadly force after he was
knocked down. "[D]efendant was not, in the terms of Hecker, 'defending himself against a
criminal attempt to take his life.' (Italics added.) The entire situation was created by
defendant." (People v. Hardin (2000) 85 Cal.App.4th 625, 634.)
              Appellant complains that the CALCRIM 3471 self-defense instruction is
incomplete without a Hecker pinpoint instruction. But such an instructional error, if any, is
subject to a harmless error analysis. (Chapman v. State of California (1967) 386 U.S. 18, 24
[17 L.Ed.2d 705,710]; People v. Quach (2004) 116 Cal.App.4th 294, 303.) The trier of fact
is not required to accept the defendant's bare assertion of fear of imminent danger to life to
great bodily injury. (In re Christian S., supra, 7 Cal.4th at p. 783.) "[F]ear alone must have
motivated the defendant to act in self-defense." (Levenson & Riccardulli, Cal. Criminal


                                                 5
Law(Rutter 2012) § 4.27, p. 4-39.) "A bare fear is not enough; 'the circumstances must be
sufficient to excite the fears of a reasonable person and the party killing must have acted
under the influence of such fears alone.' [Citations.]" (People v. Trevino (1988) 200
Cal.App.3d. 874, 878-879.)
              The jury found that appellant carried out the stabbing for the benefit the El Rio
Troublestreet gang, with the specific intent to promote criminal conduct by gang members.
The gang enhancement finding negates the argument that fear alone motivated appellant to
stab Dominguez three times.
              The judgment is affirmed.
              NOT TO BE PUBLISHED.


                                                         YEGAN, J.
We concur:


              GILBERT, P.J.


              PERREN, J




                                               6
                                James P. Cloninger, Judge

                             Superior Court County of Ventura

                           ______________________________


              Richard C. Gilman, under appointment by the Court of Appeal, fo Defendant
and Appellant.


              Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews and Linda C. Johnson, Supervising Deputy Attorneys General, for Plaintiff and
Respondent.
.




                                             7
