Filed 1/28/15




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                      DIVISION THREE


THE PEOPLE,
                                                      G049935
    Plaintiff and Respondent,
                                                      (Super. Ct. No. RIF148423)
                  v.
                                                      OPINION
VICTOR ESPUDO RAMIREZ, JR., et al.,

    Defendants and Appellants.


                  Appeal from a judgment of the Superior Court of Riverside County,
Christian F. Thierbach, Judge. Reversed.

                  Leslie Conrad, under appointment by the Court of Appeal, for Defendant
and Appellant Victor Ramirez.
                  Eric Multhaup, under appointment by the Court of Appeal, for Defendant
and Appellant Armando Ramirez, Jr.
                  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.
              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 instruction — even nondeadly fisticuffs — meant 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 (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
(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.
                                              I
                               FACTUAL BACKGROUND
              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

                                              2
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 firsthand 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 what gang you claim, and that’s the purpose of it.” The question is known as “hitting

                                            3
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 the any of the
other Tiny Winos members had a gun that night. Armando claimed he reacted in self-
defense and to defend his companions.
                                              II
                                       DISCUSSION
              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.) 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’

                                              4
[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 use
force.” The instruction made no allowance for an intent to use only nondeadly force and
an adversary’s sudden escalation to deadly violence.
               The prosecutor highlighted the instruction in closing argument. The
prosecutor argued it precluded any claim of self-defense even if defendants only
instigated a fistfight. Indeed, the prosecutor acknowledged the evidence reflected a
fistfight as defendants’ likely intent: “Nothing about the way that they approached, what
they said, what they did, indicated anything but expecting and wanting a fight with the
Tiny Winos. [¶] I am not saying expecting and wanting murder. I am saying expect[ing]
and wanting a fight.” Invoking the contrived self-defense instruction, however, the
prosecutor continued: “But remember, we are talking about are they entitled to self-
defense if they went there intending to provoke a fight and use force? And if you find
that they did, they are not entitled to that protection.” (Italics added.)
               The prosecutor argued the instruction precluded a claim of self-defense in
all possible circumstances under the evidence, i.e., whether “one, . . . Ruben Rivera
actually had a gun; two, Armando thought Ruben had a gun; or three, the whole Ruben-
had-a-gun theory is made up . . . .” The prosecutor acknowledged frankly that Rivera
may have had a gun: “[T]o be quite honest, ladies and gentlemen, they [the Tiny Winos
group] are gangsters. Can we really believe none of them had a gun?” Nevertheless, the

                                               5
prosecutor insisted under CALCRIM No. 3472 that it did not matter. “Was there a gun in
Ruben’s hands? I am going to quickly go over the reasons for yes. I am going to quickly
go over the reasons for no. But I want to stress, either way, it doesn’t matter. Because
[CALCRIM No.] 3472 says a person does not have the right to self-defense if he
provokes a fight or a quarrel with the intent to create an excuse to use force.”
              Relying on CALCRIM No. 3471, defense counsel argued in closing
argument that the lesser charge of manslaughter might apply, but insisted Armando
regained a right to defend himself against murder charges if he truly believed Rivera
suddenly escalated the fistfight to a gunfight.1 The prosecutor, however, invoked
CALCRIM No. 3472, arguing, “[Y]ou cannot have the princip[le] to mitigate from
murder to voluntary manslaughter . . . when you are the one who created the
circumstances to begin with. It makes sense. It’s fair. It’s just. More importantly, it’s
the law.” The jury’s copy of the jury instructions reflects that in reaching its verdict, the
jury circled CALCRIM No. 3472.
              CALCRIM No. 3472 under the facts before the jury did not accurately state
governing law. The blanket rule articulated in CALCRIM No. 3472 and reiterated by the
prosecutor effectively told the jury, “A person does not have [any] right to self-defense if
he provokes a fight or quarrel with the intent to create an excuse to use [any] force.” In
effect, the prosecutor and the trial court advised the jury that one who provokes a fistfight


       1      CALCRIM No. 3471 provides that a person who “engages in mutual
combat” or “starts a fight” ordinarily has “a right to self-defense” only if three criteria are
met: he actually and in good faith tried to stop fighting; communicated to his opponent
“by word or conduct” this intent to cease fighting; and gave the opponent a chance to stop
fighting. As defense counsel explained, these criteria need not be met where the
opponent suddenly resorts to deadly force in response to a defendant’s nondeadly attack.
CALCRIM No. 3471 provides: “[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.”

                                              6
forfeits the right of self-defense if the adversary resorts to deadly force. The adversary
simply may stab or shoot a person who contrives what he thought would be a shoving
match or fisticuffs. According to the prosecutor and the trial court’s instruction: “A
person does not have the right to self-defense” in those circumstances.
              To the contrary, cases dating to 1896 invalidate jury instructions that
wrongly suggest “the party first at fault — the one beginning the affray — absolutely
forfeits to the other his right to live . . . .” (Conkling, supra, 111 Cal. at p. 626.) In other
words, it is wrong to instruct the jury that: “Having committed the first wrongful act, the
plea of self-defense is foreclosed to him, and his life is the penalty, no matter what turn
the affray may subsequently take.” (Ibid.) Similarly, for example, imperfect self-defense
is available “when the victim’s use of force against the defendant is unlawful, even when
the defendant set in motion the chain of events that led the victim to attack the
defendant.” (Vasquez, supra, 136 Cal.App.4th at pp. 1179-1180.)
              True, CALCRIM No. 3472 states a correct rule of law in appropriate
circumstances. Thus, a victim may respond to an attacker’s initial physical assault with a
physical counterassault, and an attacker who provoked the fight may not in asserting he
was injured in the fray claim self-defense against the victim’s lawful resistance. (See,
e.g., Fraguglia v. Sala (1936) 17 Cal.App.2d 738.) And when a defendant contrives a
“deadly” assault (e.g., People v. Hinshaw (1924) 194 Cal. 1, 26 (Hinshaw)), there can be
no incommensurate or unjustifiable response by the victim: he or she is fully entitled to
use deadly force and the defendant has no right to claim self-defense against those deadly
measures.
              For example, in People v. Enraca (2012) 53 Cal.4th 735 (Enraca), the
evidence showed the defendant shot two victims at close range in the back of the head,
execution-style. The defendant’s version of events established the victims were entitled
to use deadly force to meet his deadly actions, and therefore the trial court did not err in
instructing the jury with CALCRIM No. 3472’s antecedent that a defendant who

                                               7
contrives to use force may not claim self-defense. Specifically, the defendant told
investigators the first victim (Hernandez) slapped at the defendant’s gun when the
defendant pulled Hernandez’s head back, and the defendant shot Hernandez because he
thought Hernandez was reaching for a gun in the other victim’s possession. Having shot
Hernandez, the defendant also shot the other victim (Gobert) because he believed Gobert
was reaching for the same (nonexistent) gun as Hernandez. As the Supreme Court
explained, there was nothing unreasonable or unpredictable in the victims’ supposed
responses: “Hernandez responded to being pulled up by the hair by an armed assailant,
and Gobert acted in resistance to Hernandez being killed.” (Enraca, supra, 53 Cal.4th at
p. 760.) Thus, there was no possible error in the trial court’s instruction on contrived
self-defense. Simply put, a defendant who assaults his victims with a gun may not set up
a valid self-defense claim with evidence he believed the victims also reached for a gun,
since they would be justified in meeting deadly force with deadly force. The evidence
justified the contrived self-defense instruction there. (Id. at pp. 761-762.)
              As noted, the trial court’s sua sponte duty to instruct the jury on the
applicable principles of law derives from the facts before it. Here, defendants sought to
invoke in other instructions the principle that one who provokes a nondeadly
confrontation nevertheless may defend himself or herself against the victim’s unjustified
use of deadly force. Both defense counsel in closing argument relied on instructions
describing an initial aggressor or mutual combatant’s revived right of self-defense if an
opponent in a nondeadly confrontation suddenly resorts to deadly force (CALCRIM
No. 3471) and mitigation of murder to voluntary manslaughter where the defendant
honestly but mistakenly believes the immediate use of deadly force is necessary to defend
himself or others (CALCRIM No. 571).
              But the prosecutor in rebuttal emphasized the plain words of CALCRIM
No. 3472 precluded these defenses. The prosecutor stated: “And with all due respect to
[defense counsel], I completely disagree with how he read to you the law or explained to

                                              8
you the law. And that’s the beauty of it. It’s on paper. Okay. And you cannot have the
principle of self-defense — you cannot have the principle to mitigate from murder to
voluntary manslaughter, heat of passion or sudden quarrel when you are the one who
created that circumstance to begin with.” (Italics added.) The prosecutor emphasized
defense counsel “read to you only a certain portion, [CALCRIM No.] 3471[,] of [the law
of] self-defense. But of course I read [CALCRIM No. 3472], which is the one after, and
that is you can’t create the situation. Self-defense may not be contrived, actually; is the
title of it. And we covered that.” (Italics added.) The prosecutor earlier had summarized
her argument using CALCRIM No. 3472 categorically, as follows: “You can’t go
looking for trouble and then complain about the trouble that you find. That’s what that
instruction says.”
              As noted, she explained that whatever defendants claimed occurred, “it
doesn’t matter because of that, of [CALCRIM No.] 3472.” Thus, whether “Rivera
actually had a gun,” or Armando only “thought Ruben had a gun,” or “the whole Ruben-
had-a-gun theory is made up,” the prosecutor stressed, “[I]t doesn’t matter.” “Because
[CALCRIM No.] 3472 says a person does not have the right to self-defense if he
provokes a fight or a quarrel with the intent to create an excuse to use force.”
              The Attorney General does not address the prosecutor’s misstatement of the
law of self-defense, and indeed concedes defendants had a right to defend themselves if
the facts were as they claimed. “[F]or example,” as the Attorney General notes, “if
Armando instigated a fist fight, and Ruben suddenly responded with a firearm so that
Armando could not withdraw from the fight, Armando had the right to defend himself
with deadly force.” But “if Armando instigated the fist fight with the intent to create an
excuse for him to shoot Ruben, self-defense did not apply.” (Italics added.)
              According to the Attorney General, when read together, CALCRIM
Nos. 3471 and 3472 preserve this distinction between contriving to provoke a quarrel to
use nondeadly force in a fistfight and contriving to provoke a quarrel to use deadly force.

                                              9
Alternatively, the Attorney General argues that any ambiguity in the intersection of
CALCRIM Nos. 3471 and 3472 made it defendants’ burden to request a clarifying
instruction, and failure to do so forfeits their challenge. (People v. Guiuan (1998)
18 Cal.4th 558, 570.)
              The court may not, however, cast upon the parties its responsibility to
instruct the jury accurately. It is the trial court’s statutory duty to instruct on the law
applicable to the facts of the case (§§ 1093, subd. (f), 1127), including the defendant’s
theory of defense (People v. Ponce (1996) 44 Cal.App.4th 1380, 1386.) The trial court
has a sua sponte duty to instruct the jury on an affirmative defense “even in the absence
of a request, ‘if it appears the defendant is relying on such a defense,’” as here, “‘or if
there is substantial evidence supportive of such a defense and the defense is not
inconsistent with the defendant’s theory of the case.’ [Citation.]” (People v. Boyer
(2006) 38 Cal.4th 412, 469.) Although no particular form of jury instructions is required,
the court has a duty to ensure that the instructions provide a complete and accurate
statement of the law. (People v. Fiu (2008) 165 Cal.App.4th 360, 370; People v.
Martinez (1984) 157 Cal.App.3d 660, 667.) Where, as here, the trial court’s failure to
properly instruct the jury affects the defendant’s substantial rights, the defendant’s failure
to object does not bar the appeal. (§ 1259; People v. Brown (2003) 31 Cal.4th 518, 539,
fn. 7; People v. Thomas (2013) 218 Cal.App.4th 630, 643.)
              Here, as the prosecutor repeatedly emphasized to the jury, the plain words
of CALCRIM No. 3472 do not support the Attorney General’s attempt to harmonize the
instruction with CALCRIM No. 3471. As the prosecutor observed, the discrepancy
between the instructions is evident “on paper” in the black-and-white terms of
CALCRIM No. 3472. That is, contriving to use any amount of “force” entirely precluded
defendants’ self-defense claim, whether Rivera actually drew a gun to escalate the
confrontation to deadly force or Armando only thought he did. Nothing in CALCRIM
No. 3472 reflected that Armando had to intend to shoot Rivera or use other deadly force

                                               10
against him as a basis for precluding defendants from invoking perfect or imperfect self-
defense. Instead, under CALCRIM No. 3472’s plain terms, any “force” sufficed to
preclude the defense. As the prosecutor repeatedly emphasized, under CALCRIM
No. 3472’s command, “it doesn’t matter” whether under CALCRIM No. 3471 the
original victim escalated a nondeadly conflict to deadly proportions. Rather, CALCRIM
No. 3472 admits no exceptions in foreclosing self-defense where a defendant contrives to
start a quarrel as a pretext to use “force,” whether deadly or nondeadly. The instruction
misstates the law.
               The Attorney General attempts to draw a vague, unspecified distinction in
which CALCRIM Nos. 3471 and 3472 only “pertain to the complete defense of self-
defense, not the mitigating defense of imperfect self-defense.” But whatever the value in
such a distinction, if any, it does not hold for several reasons. First, the Attorney General
does not maintain the distinction, nor did the prosecutor. Specifically, the Attorney
General suggests in her briefing that CALCRIM No. 3471 applies only to so-called
“complete” defense requiring an acquittal “if Armando instigated a fist fight, and Ruben
suddenly responded with a firearm.” But two pages later she describes the instruction as
equally applicable to “imperfect self-defense if [defendants] provoked [Ruben’s group]
with words or punches, and thereafter Ruben escalated from fisticuffs to deadly force
. . . .” (Italics added.) As noted, the prosecutor in a different fashion did not maintain the
distinction either: she erroneously argued CALCRIM No. 3472 obliterated all forms of
self-defense — both perfect and imperfect self-defense alike — if the defendant contrives
to use any force.
              Second, the Attorney General and the prosecutor are wrong. Contrary to
the Attorney General’s attempt to make a distinction in which CALCRIM No. 3471
applies only to complete self-defense, a defendant may claim imperfect self-defense when
faced with the original victim’s sudden escalation to deadly force. (People v. Quach
(2004) 116 Cal.App.4th 294 (Quach); Vasquez, supra, 136 Cal.App.4th at pp. 1179-

                                             11
1180.) Similarly, the prosecutor was wrong to suggest defendants were precluded from
asserting a valid self-defense claim of any kind. Though a defendant “set[s] in motion
the chain of events that led the victim to attack the defendant,” he or she still may assert a
claim of self-defense. (Vasquez, at pp. 1179-1180.)
              In Vasquez, a wheelchair-bound defendant who had a hidden gun provoked
a confrontation with the victim in an alleyway to accuse the victim of molesting the
defendant’s younger brother. The victim responded by lunging at the defendant and
attempting to choke him, whereupon the defendant shot and killed him. The trial court
denied the defendant’s request for an imperfect self-defense instruction, finding as a
factual matter the defendant could not have feared for his life since he had a firearm.
(Vasquez, supra, 136 Cal.App.4th at pp. 1179-1180.)
              Nothing in the record, however, “suggest[ed] appellant was pointing a gun,
or that his gun was even visible, when Arechiga [the victim] lunged toward him.”
(Vasquez, supra, 136 Cal.App.4th at p. 1178, fn. 1.) As the reviewing court explained,
“It was for the jury sitting as the trier of fact to decide whether appellant actually feared
serious injury or death from being choked.” (Id. at p. 1179.) The Vasquez court
observed: “That appellant had a gun to rebuff Arechiga’s attack does not mean appellant
could not have believed his life was in peril — in fact, a defendant claiming imperfect
self-defense will always have had the means to rebuff the victim’s attack, or else the
homicide would not have occurred. In our holding it was the jury’s role to determine
appellant’s state of mind, we do not ignore the plentiful evidence suggesting appellant’s
criminal intent in the alley.” (Ibid.) The court noted that “a reasonable jury could have
concluded that in creating the situation appellant intended to kill all along.” (Id. at
p. 1179, fn. 2.) But “[a] reasonable jury could also have concluded that appellant only
intended to confront Arechiga with the accusation of rape and it was only after Arechiga
attacked him that appellant formed the intent to kill.” (Ibid.)



                                              12
              The Vasquez court explained the trial court and the Attorney General
“interpreted imperfect self-defense too narrowly” in suggesting “the defense is not
available to a defendant who ‘induces a quarrel that leads to an adversary’s attack.’”
(Vasquez, supra, 136 Cal.App.4th at p. 1179, italics added.) These italicized words echo
the words of CALCRIM No. 3472. But Vasquez explained: “Neither the court nor
respondent is precisely correct. Imperfect self-defense does not apply if a defendant’s
conduct creates circumstances where the victim is legally justified in resorting to self-
defense against the defendant.” (Ibid., original italics.) “But the defense is available
when the victim’s use of force against the defendant is unlawful, even when the
defendant set in motion the chain of events that led the victim to attack the defendant.”
(Id. at pp. 1179-1180.) Accordingly, the Vasquez court reversed for a retrial.
              The same result is required here. While the trial court instructed the jury
that a claim of imperfect self-defense reduces murder to the lesser-included offense of
voluntary manslaughter if the defendant honestly but mistakenly believed deadly force
was necessary (CALCRIM No. 571), CALCRIM No. 3472 as given here and as argued
by the prosecutor erroneously foreclosed defendants’ imperfect self-defense claim. On
the prosecutor’s motion, the trial court instructed the jury with a modified version of the
standard imperfect self-defense instruction, CALCRIM No. 571. This “Special
Instruction Regarding Wrongful Conduct” told the jury: “The principle of imperfect self-
defense may not be invoked by a defendant who, through his own wrongful conduct (e.g.,
the invitation of a physical assault or the commission of a felony) has created
circumstances under which his adversary’s attack or pursuit is legally justified.”
              This instruction did nothing to counteract CALCRIM No. 3472’s
categorical terms or the prosecutor’s argument that purported to absolutely bar a
defendant’s claim of self-defense if he or she contrived to use “force.” To the contrary,
the instruction presented an additional reason to preclude the defendants’ self-defense
claim if the victim used “legally justified” force, but without limiting what was “legally

                                             13
justified” in response to contrived force. Indeed, in light of CALCRIM No. 3472’s
absolute terms barring a defendant’s claim of self-defense even if he or she contrived to
use only nondeadly force, and given the prosecutor’s forceful argument that “it did not
matter” whether Rivera was actually armed or Armando believed he or his companions
were about to be shot, the jury was misled on the law of self-defense. Rivera was not
legally entitled to use deadly force if the jury believed defendants’ claim they only
intended to use nondeadly force and presented no deadly threat.
              The Attorney General argues Victor forfeited his challenge on appeal by
requesting CALCRIM No. 3472. Victor’s trial counsel checked a box for “3472 rt. to
self-defense” in his preprinted form request for jury instructions. Counsel did so
apparently without realizing the instruction erroneously stated the law relevant to his
defense, precluding his reliance on Armando’s self-defense and defense of others defense
against the murder charge. On appeal, Victor correctly observes there is no conceivable
tactical reason for requesting an instruction that eliminates one’s defense. Consequently,
because he received ineffective assistance of counsel and we cannot say the jury would
have rejected defendants’ defense if it had been properly instructed, Victor’s challenge is
not forfeited. (Strickland v. Washington (1984) 466 U.S. 668, 684-687; People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266.)
              The Attorney General argues the instructional error was harmless given the
jury’s true findings on the gang special circumstance (§ 190.2, subd. (a)(22)) and the
gang enhancement (§ 186.22, subd. (b)). The Attorney General suggests that because the
jury found defendants intended to kill Ruben to further and promote their gang, any
notion of self-defense was explicitly rejected by the jury. The Attorney General’s
argument fails, however, precisely because the jury was misled by CALCRIM No. 3472.
The jury cannot be said to have rejected defendants’ imperfect self-defense claim where
the instructions erroneously required them to reject the claim.



                                             14
              In essence, the instructions and the prosecutor’s argument erroneously
required the jury to conclude that in contriving to use force, even to provoke only a
fistfight, defendants entirely forfeited any right to self-defense. The instructions and the
prosecutor’s argument established as a matter of law that defendants were not entitled to
imperfect self-defense if they contrived to use any force, even nondeadly force, but that
was a question for the jury to decide on its own evaluation of the facts. (Vasquez, supra,
136 Cal.App.4th at p. 1179, fn. 2; Quach, supra, 116 Cal.App.4th at p. 304 [federal
constitutional error in instructions where “[w]e cannot be convinced beyond a reasonable
doubt that no jury could have adopted Quach’s version of the facts”].)2




       2       Our dissenting colleague concludes CALCRIM No. 3472 as given correctly
precludes CALCRIM No. 3471’s lethal escalation defense because a defendant is “not
permitted to assert the right of self defense if [he] initially engaged in that activity for the
purpose of contriving the opportunity to engage in further violence in response to [his]
adversary’s reaction.” (Italics added.) According to the dissent, this forfeiture under
CALCRIM No. 3472 applies “even if [the victim’s lethal escalation] requirements of
CALCRIM No. 3471” are met. A mutual combatant therefore may end a fistfight with a
knife or a bullet, and the defendant who intended only fisticuffs must lay down his life
without defending it. The prosecutor adopted this position, but the Attorney General
does not, conceding a defendant may defend himself in those circumstances. The
dissent’s position is not the law. (Conkling, supra, 111 Cal. at p. 626 [“party first at
fault” does not “absolutely forfeit[] to the other his right to live”].) As the dissent
recognizes, Enraca is distinguishable because the defendant’s evidence showed only his
deadly intent, not a nondeadly confrontation, and as we explained, Hinshaw similarly
turned on the defendant’s intent to provoke a “deadly” quarrel. (Hinshaw, supra,
194 Cal. at p. 26.) The dissent and CALCRIM No. 3472 make no distinction between
deadly and nondeadly force, nor an opponent’s escalation to deadly force. The
distinction makes all the difference. Defendants were entitled to have the jury consider
their imperfect self-defense claim.


                                              15
                                        III
                                  DISPOSITION
            The judgment is reversed.



                                              ARONSON, ACTING P. J.

I CONCUR:


THOMPSON, J.




                                        16
FYBEL, J., Dissenting.
              I respectfully dissent. The conviction of Armando Apolinar Ramirez
(Armando) for the first degree murder of Ruben Rivera should be affirmed. The jury was
properly instructed, without objection by any party, on both perfect and imperfect
self-defense based on legal principles affirmed by the California Supreme Court in
People v. Enraca (2012) 53 Cal.4th 735, 761-762 (Enraca) and People v. Hinshaw
(1924) 194 Cal. 1, 26 (Hinshaw). The jury thereafter found Armando shot and killed
Rivera and was guilty of premeditated murder. There is no dispute substantial evidence
supported the jury’s decision. In brief, the majority and I disagree on the answer to the
basic question of what is California law on subjects covered by the instructions given in
this case.
              The majority opinion reverses Armando’s conviction on the ground the trial
court erred by instructing the jury with an unmodified version of CALCRIM No. 3472.
CALCRIM No. 3472 is entitled “Right to Self-Defense: May Not Be Contrived” and
states: “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.” By its express language,
CALCRIM No. 3472 does not apply to every person who initiates a fight and
subsequently claims self-defense. Instead, it applies to a subset of individuals who not
only instigate a fight, but do so with the specific intent that they contrive the necessity for
their acting thereafter in “self-defense,” and thus justify their further violent actions. In
other words, this instruction applies, and the right to self-defense is lost, only if an initial
aggressor commences combat for the intended purpose of provoking a violent reaction so
that he or she can then retaliate with further violence, whether deadly force or nondeadly
force, under the guise of self-defense. The defendant’s intent is measured at the time the
fight or quarrel is provoked.
              In Enraca, supra, 53 Cal.4th at page 761, the California Supreme Court
held that CALJIC No. 5.55, the predecessor to CALCRIM No. 3472, correctly stated the


                                                1
law. CALJIC No. 5.55, approved in Enraca, provided: “‘The right of self-defense is not
available to a person who seeks a quarrel with the intent to create a real or apparent
necessity of exercising self-defense.’” (Enraca, supra, at p. 761.) CALCRIM No. 3472
is more favorable to a defendant than CALJIC No. 5.55 because the former instruction
specifically required that the defendant’s act of provoking a fight or quarrel be made with
the intent to create an excuse to “use force” before the defendant would be precluded
from asserting the right of self-defense.
              In People v. Hinshaw, supra, 194 Cal. at page 26, the California Supreme
Court approved an instruction as “correctly stat[ing] the recognized principle of law ‘that
self-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 making a felonious assault.’”
              In my view, given the legal principles articulated in Enraca and Hinshaw,
CALCRIM No. 3472 accurately states sound legal precedent.
              In Enraca, the Supreme Court also approved the use of CALJIC No. 5.17,
through which “the jury was also instructed that the principle of imperfect self-defense ‘is
not available, and malice aforethought is not negated, if the defendant[,] by his unlawful
or wrongful conduct[,] created the circumstances which legally justified his adversary’s
use of force.’” (Enraca, supra, 53 Cal.4th at p. 761, italics added.) In the instant case,
the jury was given a special instruction containing the same substance as CALJIC
No. 5.17; it stated: “The principle of imperfect self-defense may not be invoked by a
defendant who, through his own wrongful conduct (e.g. the invitation of a physical
assault or the commission of a felony) has created circumstances under which his
adversary’s attack or pursuit is legally justified.”
              Accordingly, both CALCRIM No. 3472 and CALJIC No. 5.55 contain a
scienter requirement. Neither the special instruction, quoted ante, nor its counterpart
CALJIC No. 5.17, ante, contains any scienter requirement. Instead, they both limit the

                                               2
loss of the right to claim imperfect self-defense to an adversary’s use of force that is
legally justified, e.g., the adversary’s use of force in his or her own self-defense against
the initial aggressor’s provocation. Hence, if the initial aggressor simply provokes a fight
using nondeadly force—without an intent to create a larger conflict for the purpose of
covering for him or her to engage in further violence in the name of self-defense—he or
she is not precluded from claiming self-defense or imperfect self-defense in responding to
the adversary’s response of deadly force.
              Here, as in Enraca, supra, 53 Cal.4th 735, instructing the jury with
CALCRIM No. 3472 was supported by the record because substantial evidence showed
Armando, along with Victor Espudo Ramirez, Jr. (Victor), and Steven Arevalos, not only
provoked the fight with rival gang members, but Armando, for his part, did so with the
intent of creating a circumstance (a sudden fistfight between rival gang members) in
which he might have the excuse of self-defense to use his gun against his adversaries.
Specifically, substantial evidence showed (1) Armando, Victor, and Arevalos agreed to
confront a rival gang whose members had repeatedly driven by Armando’s house,
sometimes flashing gang signs and guns and even shooting at Armando’s house;
(2) Armando initially brought a gun to take with him but agreed to leave it at home when
Arevalos told him not to bring it; (3) Armando pretended he had put the gun back inside
his house before they drove to confront rival gang members, but he actually had secreted
it in his sweatshirt pocket; (4) during the drive, Victor told Armando, “[i]f you have a
gun, you better use it and not be a bitch”; (5) Armando, Victor, and Arevalos located and
then walked up to a group of rival gang members whom they “hit up” by asking,
“[w]here you from”; (6) expert witness testimony explained that such “hit up[s]” usually
result in some kind of violence “at the minimum, a fistfight”; (7) a fistfight broke out
during which Armando fatally shot Rivera after, Armando claimed, he saw Rivera with
what looked like a gun in his hand; and (8) no gun was found on or even near Rivera.



                                              3
               As noted by the majority, Armando testified that he did not set out that
evening intending to shoot anyone. Accordingly, the evidence supported the trial court in
the instant case instructing the jury with CALCRIM No. 3472 and also with CALCRIM
No. 3471, which as discussed post, addresses self-defense in the context of mutual
combat or initial aggressors. (The jury was also instructed on imperfect self-defense with
CALCRIM No. 571 and the special instruction discussed ante).
               Having been so instructed, the jury was entitled to conclude, under
CALCRIM No. 3472, that Armando did not have the right to claim self-defense in his
killing of Rivera because Armando not only provoked the fistfight with the rival gang
members, he specifically intended, through the provoked fistfight, to have the contrived
opportunity to use further force in the ensuing fracas. The jury was further entitled to
conclude that Armando took advantage of that opportunity and killed Rivera. Quite
simply, under these circumstances, the jury was entitled to disbelieve Armando’s
testimony that he did not set out that night intending to shoot anyone.
               Given the correctness of the instructions and the evidence, it is justified and
logical that the trial court, defense counsel, and the prosecutor all agreed the instructions
could be given to the jury. Courts statewide often face the fact pattern of this case: an
armed gang member travels to hit up a rival gang with the intent to use force, a gang
member then shoots a rival gang member, and the shooter claims afterwards that he or
she only shot because the shooter thought his or her adversary was reaching for a gun.
The majority thus leaves trial courts in an untenable position: a CALCRIM instruction is
proposed, no one objects, all counsel agree it can be given, the evidence supports the
instruction, the California Supreme Court has twice approved essentially the same
instruction, and yet it is reversible error to give the instruction.
               The majority opinion does not explain how CALCRIM No. 3472 might be
modified for the majority to conclude the instruction accurately states the law as it would
apply to the facts of this case. The majority opinion’s final paragraph begins: “In

                                                4
essence, the instructions and the prosecutor’s argument erroneously required the jury to
conclude that in contriving to use force, even to provoke only a fistfight, defendants
entirely forfeited any right to self-defense.” (Maj. opn., ante, at p. 14.) It appears the
majority would modify CALCRIM No. 3472 to do no more than restate principles that
were given to this jury in the form of CALCRIM No. 3471.
              Specifically, CALCRIM No. 3471 instructed the jury about the right to
self-defense in the context of mutual combat or a conflict in which the defendant is the
initial aggressor as follows: “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. [¶] However, if the defendant used only non-deadly force,
and the opponent responded with such sudden and deadly force that the defendant could
not withdraw from the fight, then the defendant had the right to defend himself with
deadly force and was not required to try to stop fighting or communicate the desire to
stop to the opponent, or give the opponent a chance to stop fighting. [¶] A fight is mutual
combat when it began or continued by mutual consent or agreement. That agreement
may be expressly stated or implied and must occur before the claim to self-defense
arose.” (Italics added.)
              CALCRIM No. 3472 instructs that even if initial aggressors or mutual
combatants satisfy the requirements of CALCRIM No. 3471, they are not permitted to
assert the right to self-defense if they initially engaged in that activity for the purpose of
contriving the opportunity to engage in further violence in response to their adversary’s
reaction. The majority does not give CALCRIM No. 3472’s phrase, “with the intent to
create an excuse to use force,” any meaning or weight in its analysis of whether

                                               5
CALCRIM No. 3472 accurately states the law when it is that very phrase that
distinguishes it in substance and purpose from CALCRIM No. 3471.
              The majority opinion quotes extensively from the prosecutor’s closing
argument and rebuttal argument, asserting the prosecutor compounded the impact of the
claimed error contained in CALCRIM No. 3472 by reiterating the instruction’s
misstatement of the law. (Maj. opn., ante, at pp. 5-6, 8-9.) For the reasons I have
explained, CALCRIM No. 3472 contains a proper statement of the law as confirmed by
Enraca and Hinshaw. The majority does not assert that the prosecutor made any
objectionable statements that were inconsistent with CALCRIM No. 3472. Because there
was no instructional error, analysis of the prosecutor’s statements is unnecessary to
evaluate prejudice. Armando and Victor did not argue prosecutorial misconduct in this
appeal.
              The majority’s reliance on People v. Vasquez (2006) 136 Cal.App.4th 1176
(Vasquez) is misplaced as that case did not involve contrived self-defense as set forth in
CALCRIM No. 3472 or otherwise. The appellate court in Vasquez held the trial court
erred by refusing to instruct the jury on imperfect self-defense, explaining in part, “the
defense is available when the victim’s use of force against the defendant is unlawful,
even when the defendant set in motion the chain of events that led the victim to attack the
defendant.” (Vasquez, supra, at pp. 1179-1180.) (The jury in the instant case was
instructed on imperfect self-defense with both CALCRIM No. 571 and the special
instruction discussed ante.)
              In Vasquez, the trial court refused to instruct the jury on imperfect
self-defense, in part, because the court concluded the defendant had “created the need to
defend himself by luring [his victim] to the alley to confront him.” (Vasquez, supra, 136
Cal.App.4th at p. 1179.) Vasquez did not address whether the defendant set up the
confrontation with his adversary “with the intent to create an excuse to use force”
(CALCRIM No. 3472) because it was simply not at issue. The majority opinion states

                                              6
that language in Vasquez, criticizing an interpretation of self-defense as unavailable to a
defendant “who ‘induces a quarrel that leads to an adversary’s attack’” (Vasquez, supra,
at p. 1179), has “echo[ed] the words of CALCRIM No. 3472” (maj. opn., ante, at
pp. 12-13). Not so. CALCRIM No. 3472 has an additional scienter requirement, namely,
an “intent to create an excuse to use force.” (Italics added.) It does not simply focus on
whether inducement of a quarrel leads to an adversary’s attack.
              By relying on the holding of Vasquez, the majority appears to conflate two
different issues: first, a defendant “set[ting] in motion the chain of events” (Vasquez,
supra, 136 Cal.App.4th at p. 1180) that led to his or her adversary’s violent reaction, and
second, the defendant “provok[ing] a fight or quarrel with the intent to create an excuse
to use force” (CALCRIM No. 3472). These two actions are not the same. The
California Supreme Court’s decision in People v. Conkling (1896) 111 Cal. 616, 626,
simply addresses the first issue; consequently, the court rejected the legal principle that
“the party first at fault—the one beginning the affray—absolutely forfeits to the other his
right to live, to the extent at least of the difficulty which he has created.” (Italics added.)
              Unlike Vasquez, in our case, the jury was instructed on imperfect
self-defense in the form of CALCRIM No. 571 and the special instruction quoted ante.
The appellate court in Vasquez did not address whether the defendant was precluded from
the right to self-defense because he provoked a fight or quarrel with the intent to create an
excuse to use force.
              The majority’s reliance on factual differences between our case and Enraca
is without moment. In Enraca, the Supreme Court held the jury was properly instructed
with CALJIC No. 5.55 in the context of the evidence that the defendant participated in a
gang fight during which he grabbed one victim by the hair, pulled his head back, and
asked where he was from. (Enraca, supra, 53 Cal.4th at p. 744.) After the victim hit the
defendant’s hand, the defendant fatally shot him; the defendant explained he was afraid
the victim was about to shoot him with a gun the defendant had not seen. (Ibid.) The

                                               7
defendant thereafter shot a second victim because he feared that victim was about to grab
the same gun he had not seen. (Ibid.) Nothing in Enraca supports the majority’s
intimation that CALCRIM No. 3472 is inapplicable unless the defendant provokes a fight
or quarrel with the use of deadly force. Neither Enraca, nor any legal authority I have
found, supports such a limitation of CALCRIM No. 3472. Notwithstanding Enraca’s
disparate facts, the legal principles affirmed therein still control in our case. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
              I would also reject Armando’s other instructional and evidentiary
challenges raised in this appeal, and affirm his conviction. Following the opinion of the
California Supreme Court in People v. Chiu (2014) 59 Cal.4th 155, I would reverse
Victor’s first degree murder conviction and remand with the same disposition in Chiu. In
Chiu, the court held that “an aider and abettor may not be convicted of first degree
premeditated murder under the natural and probable consequences doctrine. Rather, his
or her liability for that crime must be based on direct aiding and abetting principles.” (Id.
at pp. 158-159.)



                                           FYBEL, J.




                                              8
