Filed 5/1/14 P. v. Williams CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B243120

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA122155)
         v.

STEPHEN LAMONT WILLIAMS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Allen J.
Webster, Judge. Affirmed.
         Joanna Rehm, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury found Stephen Williams guilty of one count of second degree burglary, two
counts of assault with a deadly weapon and found true one great bodily injury
enhancement. Williams attacks the assault convictions and the sufficiency of the
evidence to support the great bodily injury enhancement. We affirm the judgment.
                        FACTS AND PROCEEDINGS BELOW
       In the still-dark hours of the morning on February 21, 2012, Viridiana Lopez
walked out of her house intending to go to work. She noticed that the dome light was
on inside her brother Raul’s truck and saw Williams sitting in the driver’s seat. She
recognized Williams from having seen him in the neighborhood. Viridiana screamed,
“Raul!” Williams pulled his hoodie over his head, got out of the truck and rode off on a
bicycle. Hearing Viridiana’s screams, her husband Marvin and her brother Raul ran out
of the house. Marvin got a quick look at the person who had been in the truck before he
disappeared on the bicycle. It was too dark to see the person’s face but he could tell it
was a male. No one called the police.
       Ten or fifteen minutes later Viridiana drove to a gas station to buy coffee and
Marvin and Raul followed her in Raul’s truck. When the group pulled into the gas
station Viridiana saw Williams walking down the sidewalk. She pointed to him and
told Raul, “that’s him.” Marvin and Raul, in Raul’s truck, drove along side Williams
who began to run as soon as he saw them. As he ran, Williams spontaneously shouted:
“I didn’t get inside your truck.”
       Marvin and Raul got out of the truck and pursued Williams on foot. When
Williams tripped and fell Raul “grabbed” him and Marvin came to assist. Together
Marvin and Raul tried to hold Williams down. Marvin pressed his knee into Williams’
stomach and he and Raul tried to seize Williams hands.
       Viridiana arrived on the scene while the struggle was underway and told Raul and
Marvin that Williams was the man she saw in the truck that morning. Raul told Viridiana
to call the police.



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       While Viridiana was calling the police, Williams escaped the grasp of Raul and
Marvin and started swinging at them and Viridiana with screwdrivers he held in each
hand. Williams hit Viridiana with his fist and stabbed Marvin with a screwdriver on the
right side of his face. At some point in the scuffle Raul suffered a lacerated lip. Raul,
Marvin and Viridiana managed to wrestle Williams to the ground. Viridiana stood
behind Williams holding his hoodie with one hand and using her other hand to call the
police on her cellphone. She and the two men were able to detain Williams until the
police arrived.
       Williams testified in his own defense. He stated that he was walking from
his home to a donut shop when he was “‘jumped by some fuck’in Mexicans.’” A truck
made a quick U-turn and stopped near him. Two men (later identified as Raul and
Marvin) got out. Raul said: “Come here mother fucker.” Williams started to run
because he thought the men might be members of a rival gang. Raul and Marvin chased
Williams down the street. When they caught up with him Raul accused him of “fuck’in
with my truck.” Williams responded: “No man. It wasn’t me.” Raul and Marvin began
“kicking” and “stomping” Williams. Later, Williams said, Viridiana joined Marvin and
Raul and the three of them were “standing over me beating me, kicking me and hitting
me.” Williams testified that when he heard Viridiana say she was going to call the
police: “I started fighting back . . . because I was on the run from parole.” He also
testified that he took a screwdriver and an ice pick with him everywhere he went because
“I’m in a war zone, you know.”
       The jury found Williams guilty of one count of second degree burglary and two
counts of assault with a deadly weapon. It found Williams personally inflicted great
bodily injury upon Marvin.




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                                      DISCUSSION
       I.     WILLIAMS FORFEITED ANY COMPLAINT ABOUT ERRORS
              IN THE INSTRUCTIONS ON SELF-DEFENSE BY FAILING
              TO RAISE THEM IN THE TRIAL COURT.

       At trial Williams claimed that he was not the person in Raul’s truck, did not
know why Raul and Marvin jumped him and that he fought them when they attacked
him because he thought they were rival gang members.
       The court instructed the jury on the right of self-defense in general
(CALCRIM No. 3470)1 , the right to self-defense of one who engages in mutual


1
        CALCRIM No. 3470 provides: “Self-defense is a defense to Assault With A
Deadly Weapon. The defendant is not guilty of those crimes if he used force against the
other person in lawful self-defense. The defendant acted in lawful self-defense if:
    1. The defendant reasonably believed that he was in imminent danger of suffering
bodily injury;
    2. The defendant reasonably believed that the immediate use of force was necessary
to defend against that danger;
    AND
    3. The defendant used no more force than was reasonably necessary to defend
against that danger.
    Belief in future harm is not sufficient, no matter how great or how likely the harm is
believed to be. The defendant must have believed there was imminent danger of bodily
injury to himself. Defendant’s belief must have been reasonable and he must have acted
because of that belief. The defendant is only entitled to use that amount of force that a
reasonable person would believe is necessary in the same situation. If the defendant used
more force than was reasonable, the defendant did not act in lawful self-defense.
    When deciding whether the defendant’s beliefs were reasonable, consider all the
circumstances as they were known to and appeared to the defendant and consider what a
reasonable person in a similar situation with similar knowledge would have believed. If
the defendant’s beliefs were reasonable, the danger does not need to have actually
existed.
    A defendant is not required to retreat. He or she is entitled to stand his or her ground
and defend himself or herself and, if reasonably necessary, to pursue an assailant until the
danger of bodily injury has passed. This is so even if safety could have been achieved by
retreating.
    The People have the burden of proving beyond a reasonable doubt that the defendant
did not act in lawful self-defense. If the People have not met this burden, you must find
the defendant not guilty.”
                                               4
combat (CALCRIM No. 3471) that the right of self-defense does not apply if
the defendant provokes a fight with the intent to create an excuse to use force
(CALCRIM No. 3472) and that the right to use force in self-defense expires when
the attacker withdraws or is no longer capable of inflicting injury (CALCRIM No. 3474).
       On appeal Williams contends that those instructions were insufficient. He argues
that the court had a sua sponte duty to instruct the jury that a person performing a
citizen’s arrest may use only that amount of restraint as is reasonable to detain the
arrestee until law enforcement officers arrive2 and that the arrestee is privileged to “use
reasonable force to defend life and limb against excessive force[.]” (People v. Curtis
(1969) 70 Cal.2d 347, 357; 4 Witkin, Cal. Criminal Law (4th ed. 2012) Pretrial Procedure
§ 13, p. 248.)
       Williams forfeited this argument by not requesting the customized instruction he
now claims should have been given.
       As a general rule courts will not consider alleged errors that could have been cured
in the trial court had they been presented there. (People v. Saunders (1993) 5 Cal.4th
580, 589-590.) In some instances, an appellant may seek review of an instruction “even
though no objection was made thereto in the lower court” if the “substantial rights of the
defendant were affected thereby.” (Pen. Code, § 1259.) But this exception to the usual
rule of forfeiture only applies to an instruction “given, refused or modified.” (Ibid.)
       We agree with Williams that the trial court must instruct sua sponte on the general
principles of law relevant to the issues raised by the evidence. (People v. Flannel (1979)
25 Cal.3d 668, 681.) This duty is met where the instructions correctly state the
applicable law. The court does not have a duty create on its own additional or clarifying
instructions. As our high court explained in People v. Lang (1989) 49 Cal.3d 991, 1024,
“A party may not complain on appeal that an instruction correct in law and responsive to




2
       Penal Code section 835 states in relevant part: “The person arrested may be
subjected to such restraint as is reasonable for his arrest and detention.”
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the evidence was too general or incomplete unless the party has requested appropriate
clarifying or amplifying language.” Here the court instructed the jury on the general right
to use force in self-defense. If the jurors had believed Williams’ contention that Raul,
Marvin and Viridiana attacked him for no valid reason and that he fought back only to
protect his “life and limb” against imminent danger of bodily injury and that he used no
more force than was reasonably necessary to defend against that danger the jurors would
have acquitted him of the burglary and the assault charges. Instructions on the privilege
to use force in resisting detention or arrest would have been surplusage.
       Williams argues, however, that instructions on citizens’ arrests and resisting arrest
were necessary because the prosecutor introduced that issue into the case in her closing
argument to the jury. The prosecutor told the jury: “[I]f you believe the testimony of the
witnesses, [Williams] doesn’t have a right to self-defense. He does not. They were
trying to detain a fleeing suspect until the police came. They have a right to do that.
There is no law in those instructions telling you that they acted unlawfully unless you
believe [Williams] is the wrong person who had no idea what was going on and really felt
that he was being chased by gang members.” Williams was not prejudiced by this
argument because it conceded the legal basis of his defense: he was not guilty of assault
if he reasonably believed that he was being pursued and attacked by gang members. In
any case, defense counsel did not object to the prosecutor’s argument and so the issue
cannot be addressed in this appeal. (People v. Harris (2013) 57 Cal.4th 804, 852.)
       Finally, Williams maintains that his trial counsel provided ineffective assistance in
failing to request an instruction on the privilege to use self-defense in resisting an
unreasonable detention and failing to object to the prosecutor’s argument that a fleeing
felon has no right to self-defense. We disagree. An instruction on the privilege to resist
excessive force in a detention would only make sense if Williams was willing to concede
there was evidence that would allow the jury to find he burglarized Juan’s truck.
Otherwise, as we discussed above, the instruction would add nothing to the general
instruction on self-defense that the court gave. Defense counsel could reasonably

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conclude that as a tactical matter it would be better to stick with the SODDI3
defense rather than present the jury with two conflicting defenses.
       II.    SUFFICIENT EVIDENCE SUPPORTED THE ENHANCEMENT
              FOR GREAT BODILY INJURY TO MARVIN.
       Penal Code section 12022.7, subdivision (f) defines “great bodily injury”
as “a significant or substantial physical injury.” This standard is commonly
established by “evidence of the severity of the victim’s physical injury, the resulting
pain, or the medical care required to treat or repair the injury.” (People v. Cross
(2008) 45 Cal.4th 58, 66.) The jury, instructed in the language of Penal Code
section 12022.7, subdivision (f), found that Williams inflicted great bodily injury
on Marvin based on the following evidence.
       In his attempt to detain Williams, Marvin received a laceration on the right
side of his face. An officer who responded to the scene testified that the cut was a
quarter inch long. Paramedics applied a Band-Aid to the cut and Marvin went to
work. Later that day, however, blood soaked through the Band-Aid and after work
Marvin went to the hospital where a doctor cleaned the wound and applied six
stitches. When Marvin testified at trial four months after the incident he exhibited
a scar which the prosecutor estimated as between two-thirds and three-fourths inch
in length.
       Williams argues on appeal that a quarter inch cut that required six
stitches does not meet the standard of a “significant or substantial” injury as a
matter of law. The evidence showed, however, that while the cut appeared
superficial at first it continued to bleed throughout the day and had to be sutured
at a hospital suggesting that the wound was a deep puncture, not a shallow




3
      In the jargon of criminal law attorneys the acronym SODDI stands for “Some
Other Dude Did It.” (Uleman, Conditional Relevance and the Admission of Party
Admissions (2008) 36 Sw.U. L.Rev. 657, 668.)

                                              7
scratch. Moreover, the cut left a scar between two-thirds and three-fourths of an inch on
the side of Marvin’s face.
       Here, the court instructed the jury on what constitutes a “great” bodily injury and
the jury, applying contemporary community norms, found that Marvin’s injury met that
standard. We cannot say as a matter of law that the jury erred.
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED.




                                                 ROTHSCHILD, Acting P. J.
We concur:



              CHANEY, J.



              JOHNSON, J.




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