Filed 4/2/15 P. v. Tombleson CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
                                                                       G048758
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. 11CF1563)
         v.
                                                                       OPINION
JUSTIN TOMBLESON,

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, James A.
Stotler, Judge. Affirmed.
                   Brett Harding Duxbury, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Peter Quon, Jr., Randall D. Einhorn and Raquel M. Gonzalez, Deputy Attorneys
General, for Plaintiff and Respondent.
                                          *                  *                  *
              A jury convicted Justin Tombleson of two counts of voluntary
manslaughter (Pen. Code, § 192, subd. (a); all further statutory references are to this
code), as lesser included offenses of murder (§ 187), and found true a penalty
enhancement allegation that he used a deadly weapon (§ 12022, subd. (b)(1) [a knife]) to
commit the offenses. In a bifurcated bench trial, the trial court found defendant had
committed a prior strike serious felony offense (§ 667) and served a prior prison term
(§ 667.5, subd. (b)). Defendant challenges the sufficiency of the evidence to support the
trial court’s conclusion his prior conviction for battery with serious bodily injury (§ 243,
subd. (d)) constituted a prior strike as a serious felony involving personal infliction of
great bodily injury on a nonaccomplice (§ 1192.7, subd. (c)(8)). He also challenges the
trial court’s instruction on an initial aggressor’s right of self-defense and contends the
court erred in failing sua sponte to instruct the jury on a novel theory of involuntary
manslaughter as a lesser included offense. As we explain, these contentions have no
merit, and we therefore affirm the judgment.
                                              I
                   FACTUAL AND PROCEDURAL BACKGROUND
              After celebrating his birthday party at an upscale bowling alley, Hossain
Saidian and his friends Elvis and Aris Kechechian and Peter Pouya Hashemloo departed
around 12:15 a.m. Everyone in the group had been drinking. The group stopped to get
food at the Albatros Tacos Shop in Lake Forest.1 While in line at the taco shop, Elvis
tried to start a conversation with defendant’s girlfriend, Erica Cardenalli, who was
standing behind him with two female friends. When Cardenalli did not acknowledge
Elvis, he complained loudly to Saidian and Hashemloo, “I guess she’s too good to talk to
me.”



       1        Because Elvis and Aris were brothers and shared the same last name, we
will refer to them by their first names for clarity and intend no disrespect.

                                              2
              Hashemloo put his arm around one of Cardinelli’s friends, but the women
were not interested, and Cardinelli rebuffed Elvis’s overtures, explaining, “I was on the
phone with my boyfriend, and he's on his way here, and I don’t want to talk to you.”
              A verbal altercation ensued between Elvis and Cardenalli. She told Elvis,
“If you don’t turn around, I’m going to slap you” and warned that her boyfriend was
going to “fuck [him] up,” while he called her a “fat bitch” and answered her threat, “Fuck
you. He’s not going to fuck me up,” “[t]ell him to come . . . .” Aris, who had just
returned from the bathroom, joined in the shouting match. Cardenalli slapped Elvis in the
face. From his position behind a table, Aris spat on Cardinelli and insulted her, “Fuck
you, bitch.” After more yelling, Aris spat at her again. The women responded by
slapping and punching Aris in the face and the back of his head.
              Hashemloo pushed Aris away from the women. Aris “backpedal[ed]” and
tripped over a man, who then pushed Aris. A fistfight and general melee erupted in the
taco shop, with chairs and food flying, and people running out and being pushed out by
the restaurant workers. It was “complete chaos.” During the fracas, Hashemloo heard
Cardenalli say, “He’s going to come back and kill you. He’s going to come fuck you
up.” Outside the restaurant, Hashemloo heard Cardenalli telling someone on her phone
that she had been punched and “telling him to hurry and directing him to” Hashemloo’s
group.
              As Hashemloo and his friends headed for Aris’s car, Elvis and Saidian took
off their shirts because as Hashemloo explained, they were “very proud of their bodies
[and] well-built.” Defendant arrived at the scene and a customer at the taco shop,
Hussein Wareh, testified he saw defendant speaking with Cardenelli before rushing at
Hashemloo’s group. According to Hashemloo, defendant approached “very
aggressive[ly],” demanded to know who spit on his girlfriend, and then punched at Aris.
Hashemloo knocked defendant to the ground. Hashemloo testified he and his friends beat



                                             3
defendant while he was on the ground, but only for a “very short period [of] time, a few
seconds.”
              Hussein Wareh saw defendant being beaten up, knocked to the ground, and,
once he was on the ground, “attacked more with . . . not just fists but feet at that point,”
and the blows include “[s]tomping, kicking, punching.” According to Wareh,
defendant’s trio of attackers then “stopped, and they backed away from him. And then he
had a moment where he was just on the ground, and I could see his [defendant’s] face at
that point was very bloody, and his nose was very bloody.” Wareh reiterated that the trio
backed off from defendant, who was still laying on the ground. Wareh testified, “[It]
didn't look like their intentions [were] to keep beating him to death or whatever. It just
felt to me like they got him enough times, and they backed — they just . . . they stopped.
They stopped stomping on him.”
              Wareh testified that defendant “appeared to me to be very angry still” and
“then reached into his pocket, which was his left-side pocket, and he pulled out an
object.” “[A]nd it appeared that he was opening a knife.” Defendant approached his
former attackers, and Wareh saw defendant “swinging his arms in a stabbing motion.”
Wareh “heard the punctures to the body” made by defendant’s knife as he stabbed two
victims, explaining, “It sounded like . . . a thud, but more of a pop thud.” According to
Wareh, when defendant stood up and pulled out the knife, nothing prevented him from
retreating. Wareh testified he saw two men come to defendant’s aid. One man had
started fighting with Aris while defendant gained his composure and stood up. The other
man approached defendant’s side and gave him “the moment to get up.”
              Defendant’s friends Joshua and Jonathan Jarrett testified they stayed in the
car initially when they arrived with defendant at the taco shop, but went to defendant’s
aid when he was knocked down. Joshua tackled one man and Jonathan pushed another
away while defendant was still on the ground. The brothers testified they did not know a
stabbing occurred.

                                              4
              Another witness, Ali Wareh, testified he did not see anyone continue to
beat defendant while he was on the ground. But defendant put his hands in his pocket,
took them out, and then did a “flickering motion” with one hand — an outward motion as
if opening something. Ali Wareh saw defendant move forward toward a “taller guy in
the white shirt” (Elvis) and make a swinging motion. At that point, Wareh warned the
women with him to go back to the restaurant because he thought defendant “might have
had something sharp in his hand or something.” When Wareh turned back to look, the
man in the white shirt was “already knocked out.” Wareh saw Saidian, with whom he
was acquainted, advance towards defendant “in [an] attacking” mode, but defendant
“kind of like sw[u]ng at him twice around [Saidian]’s left side of his ribs,” and Saidian
began “getting kind of like weak.” Wareh could not remember if Saidian fell to the
ground.
              Another witness, Daniel Jacobs, testified he did not notice any weapons,
but he saw defendant “bouncing around from person to person” and saw him make four
stabbing-type motions. Jacobs testified, “To me it appeared that he [defendant] was
going from one to another without being swung at or hit and he was the aggressor on
that.” Another customer, Keaton English, saw defendant throwing punches in a manner
he characterized as “unorthodox[], out of anger,” and in a circular motion. English saw
the outline of a knife in defendant’s hand.
              Hashemloo saw Aris lying face down and held in a bear hug by someone;
Hashemloo heard Aris screaming to him, “Pooh, come get this guy off of me. Help me.”
As Hashemloo tried to help Aris, Elvis yelled, “Pooh, call 911. Someone just stabbed
me.” Hashemloo saw Elvis standing up, “kind of in shock” and “holding his intestines in
his hands; they were out about four inches out of his body.” Hashemloo called 911, and
then turned to see Elvis lying on the ground and Saidian stumbling back towards him “in
shock” and “bleeding profusely . . . everywhere,” with “open holes” on his body. Still on



                                              5
the phone with 911, Hashemloo grabbed Saidian, walked him to the side of Aris’s car and
next to Elvis, and told Saidian to lie down and not move.
              Orange County Sheriff’s Deputy Daniel Mendoza arrived and found Aris
screaming, “Somebody . . . hurt my brother. He needs help. He needs help.” Elvis was
on the ground breathing slowly; he “appeared to have been stabbed or cut. Some of the
stomach parts were out on his belly.” Saidian lay nearby, where he kept trying to stand
up, but was “bleeding severely.” He suffered lacerations on his left-upper arm, and was
wounded in his left armpit and chest area. Surgery revealed he had a laceration to one of
his lungs from a puncture wound that left a visible hole in his diaphragm. Elvis died that
night, and Saidian succumbed a few days later. Autopsies showed Elvis died from an
abdominal stab wound and Saidian from multiple stab wounds.
               Investigators found a pocket knife in the bushes near the taco shop.
Forensic analysis revealed defendant and Saidian as main contributors of DNA residue on
the knife, and Elvis as a minor contributor. Cardenalli testified defendant the next day
admitted to her he “probably” had a knife or “probably” stabbed someone. He said he
was sorry, and that he was going to meet with an attorney. He turned himself into the
sheriff’s office on June 13, 2011, accompanied by his attorney.
              Defendant did not testify at trial or present any witnesses, claiming in
argument that he acted in self-defense. After the jury returned its verdict, the trial court
sentenced defendant to 30 years and four months in state prison, consisting of the mid-
term of six years on each voluntary manslaughter conviction, doubled to 12 years each
because of his prior serious felony strike, plus an additional five years for the strike and
16 months for personal use of a deadly weapon. Defendant now appeals.




                                              6
                                              II
                                       DISCUSSION
A.     Prior Serious Felony Strike Finding
              Defendant challenges the sufficiency of the evidence to support the trial
court’s finding his prior conviction for battery with serious bodily injury (§ 243,
subd. (d)) constituted a serious felony strike conviction (§§ 667, subd. (d)(1); 1192.7,
subd. (c)). Battery with serious bodily injury is not one of the crimes listed in
section 1192.7, subdivision (c) as a “serious felony.” (See People v. Bueno (2006)
143 Cal.App.4th 1503, 1508 9 Bueno).) Battery qualifies as a serious felony only if the
circumstances of the offense show the defendant personally inflicted great bodily injury
on a person other than an accomplice (§ 1192.7, subd. (c)(8)), or personally used a
firearm or other dangerous or deadly weapon (id., subd. (c)(23); see Bueno, at p. 1508.)
              Defendant pleaded guilty to the prior serious bodily injury offense, and the
plea agreement reflects as the factual basis for the plea only his statement that “[i]n
Orange County, California, on 6/11/04, I willfully [and] unlawfully committed a battery
upon David Everett causing serious bodily injury . . . .” The trial court in the present
matter took judicial notice of the “court file” pertaining to defendant’s serious bodily
injury conviction (Case No. 05SF0072), and concluded the conviction constituted a prior
serious felony strike. The court file included the plea agreement.
              Defendant contends the evidence does not support the trial court’s
conclusion. He notes his battery conviction did not include firearm or deadly weapon
enhancements, and neither the factual statement in his plea agreement or the least
adjudicated elements (In re Jensen (2001) 92 Cal.App.4th 262, 268) of battery with
serious bodily injury establish that he personally inflicted great bodily injury on a person
who was not an accomplice, as required to constitute a serious felony. (§ 1192.7, subd.
(c)(8) & (23).)


                                              7
              The Attorney General argues that because nothing suggests anyone else
was charged for the battery offense or that an accomplice was the victim, the trial court
could conclude defendant was the sole perpetrator and personally inflicted the victim’s
injuries (see People v. Moore (1992) 10 Cal.App.4th 1868, 1871), while defendant points
to contrary authority (Bueno, supra, 143 Cal.App.4th at pp. 1508, 1511). The Attorney
General also relies on authority suggesting that serious bodily injury in section 243,
subdivision (d) may be “‘essentially equivalent’” to great bodily injury (Bueno, at
p. 1511; see People v. Santana (2013) 56 Cal.4th 999, 1008), while defendant identifies a
case in which the jury found the defendant inflicted serious bodily injury but not great
bodily injury, suggesting they are not necessarily the same. (People v. Taylor (2004)
118 Cal.App.4th 11, 26.)
              We need not resolve these disputes. In producing on appeal only the
abstract of judgment for defendant’s prior conviction, a certified “prison packet,” the plea
agreement, and other documents, the parties did not include everything in the court file
the trial court reviewed. We requested and obtained the court file, which includes the
battery victim’s preliminary hearing testimony that he had never met defendant before a
confrontation in which defendant punched him in the face, knocked him unconscious,
“busted up” his eye socket, and broke three bones in his cheek. As defendant
acknowledges, the trial court in adjudicating prior conviction allegations may draw
reasonable inferences from the record of conviction (People v. Guerrero (1988)
44 Cal.3d 343, 355), which properly includes charging documents, any plea documents,
and transcripts of the preliminary hearing and sentencing hearing (People v. Gonzales
(2005) 131 Cal.App.4th 767, 773). Here, the injuries the victim described
unquestionably qualify as great bodily injury (see, e.g., People v. Sanchez (1982)
131 Cal.App.3d 718, 733), and the evidence reflects defendant personally inflicted them
on a nonaccomplice. Substantial evidence therefore supports the trial court’s prior
serious felony strike conclusion.

                                             8
B.     Initial Aggressor’s Right of Self-Defense
              Defendant describes himself as the initial aggressor in his confrontation
with the victims, acknowledging he “started the fight: When [he] showed up in the
parking lot, Erica pointed out the guys who spit on her in the taco shop and [he] sprinted
over to the red M3 BMW and swung at Aris.” The trial court instructed the jury with
CALCRIM No. 3471 (Right to Self-Defense: Mutual Combat or Initial Aggressor), and
defendant now challenges language in the latter portion of the instruction. The initial
portion of the instruction provides: “A person 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; [¶] If the defendant meets these requirements, he then had a right to self-
defense if the opponent continued to fight.”
              The latter portion of the instruction provides: “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,
communicate the desire to stop to the opponent, or give the opponent a chance to stop
fighting.” (Italics added.)
              Defendant argues the instruction erroneously required the victim to respond
with “deadly” counterforce before an initial aggressor may invoke self-defense.
Defendant suggests a victim’s resort to any “excessive” force would restore an initial
aggressor’s right to use deadly force in self-defense. Defendant cites no authority for this
proposition. He also did not request a pinpoint instruction or modification of the
instruction to include “excessive” force, and his challenge is therefore forfeited. (People
v. Anderson (2011) 51 Cal.4th 989, 998 (Anderson); People v. Hart (1999) 20 Cal.4th
546, 622 (Hart).)

                                               9
              In any event, defendant’s claim fails on the merits. Granted, defendant is
correct to a point: an initial aggressor faced with “sudden excessive force need not
attempt to withdraw and may use reasonably necessary force in self-defense.” (CALJIC
No. 5.56, italics added.) As noted in People v. Quach (2004) 116 Cal.App.4th 294, 301,
“‘Where the original aggressor is not guilty of a deadly attack, but of a simple assault or
trespass, the victim has no right to use deadly or other excessive force. . . . If the victim
uses such force, the aggressor’s right of self-defense arises.’” (Italics added.) But Quach
did not suggest a defendant’s “‘right of self-defense’” includes lethal force to meet the
victim’s use of excessive but nondeadly force, and defendant cites no authority for this
proposition. Indeed, the authority he cites states the opposite: “[O]nly that force which
is necessary to repel an attack may be used in self-defense; force which exceeds the
necessity is not justified.” (People v. Clark (1982) 130 Cal.App.3d 371, 380,
disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 92.)
              Here, the issue was whether defendant was entitled to use deadly force.
Accordingly, the trial court correctly instructed the jury to resolve whether the victims
posed a deadly threat (CALCRIM No. 3471) to defendant or his girlfriend (CALCRIM
No. 505 — Justifiable Homicide: Self-Defense or Defense of Another), or whether
defendant instead inaccurately but honestly perceived a deadly threat (CALCRIM
No. 571 — Voluntary Manslaughter: Imperfect Self-Defense or Imperfect Defense of
Another) or acted under provocation in a heat of passion (CALCRIM No. 570 —
Voluntary Manslaughter: Heat of Passion). The trial court also correctly instructed the
jury to evaluate whether any danger defendant may have faced continued to exist when
he claimed he acted in self-defense (CALCRIM No. 3474), and defendant does not
suggest there was any evidence he acted with less than deadly force or that the court erred
in instructing the right of self-defense may not be contrived (CALCRIM No. 3472). In
sum, the trial court instructed the jury correctly and thoroughly on the law of self-
defense.

                                              10
              Because defendant acted with lethal force, we find no merit in his
contention the jury should have engaged in a fine-tuned evaluation of whether the victims
acted with “excessive” force instead of whether they posed a deadly threat to defendant.
The trial court correctly instructed the jury that only a deadly threat or perceived deadly
threat revived defendant’s right as an initial aggressor to use deadly force in self-defense
or imperfect self-defense. There was no error.
C.     Assault with a Deadly Weapon as a Predicate Act for Involuntary Manslaughter
              Defendant claims on appeal that involuntary manslaughter may be the
result where the defendant’s underlying offense is assault with a deadly weapon, a felony.
By statute, a defendant commits involuntary manslaughter when he or she kills another
human being without malice (1) in the commission of a criminal offense not amounting
to a felony, or (2) in the commission of a lawful act which might produce death, either by
(a) committing the ordinarily lawful act in an unlawful manner or (b) without due caution
and circumspection. (§ 192, subd. (b).) The trial court did instruct the jury on
involuntary manslaughter as a lesser included offense of murder based on the
nonfelonious crimes of “simple assault, simple battery, and/or disturbing the peace.”
Defendant contends the trial court erred in failing sua sponte to instruct the jury on his
novel theory of involuntary manslaughter based on assault with a deadly weapon as the
predicate act. He is incorrect for several reasons.
              First, because the trial court instructed the jury on involuntary manslaughter
as a lesser included offense of murder, defendant’s claim amounts to an assertion the trial
court should have modified the instruction in the pinpoint manner he now requests. His
failure to request a modification or pinpoint instruction below forfeits the challenge.
(Anderson, supra, 51 Cal.4th at p. 998; Hart, supra, 20 Cal.4th at p. 622.)
              Second, there is no authority for defendant’s suggested instruction. In a
concurring opinion in People v. Bryant (2013) 56 Cal.4th 959 (Bryant), Justice Kennard
endorsed an involuntary manslaughter instruction where the defense “presented evidence

                                             11
from which the jury could have reasonably concluded that defendant lacked malice, but
killed while committing an assault with a deadly weapon.” (Id. at p. 975 (conc. opn. of
Kennard, J.).) There, in a struggle with her boyfriend for a knife, the defendant gained
control of the weapon and broke free, but she unintentionally stabbed him in the chest
with the blade as he came towards her, killing him. Neighbors found her pleading with
him as he lay unconscious to “‘wake up.’” (Id. at p. 963.)
              The majority in Bryant, however, did not reach the issue of whether an
involuntary manslaughter instruction should have been given. (Bryant, supra, 56 Cal.4th
at p. 970 [addressing only the defendant’s request for a voluntary manslaughter
instruction].) In any event, Justice Kennard concluded the trial court had no sua sponte
duty to instruct “on a legal principle [assaultive involuntary manslaughter] that has been
so ‘obfuscated by infrequent reference and inadequate elucidation’ that it cannot be
considered a general principle of law.” (Id. at p. 975 (conc. opn. of Kennard, J.), citing
People v. Flannel (1979) 25 Cal.3d 668, 681 (Flannel).) Defendant contends “the
Flannel ‘inadequate elucidation’ doctrine is incompatible with [a] federal due process”
right to accurate legal instructions, but the Supreme Court’s conclusion is binding. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
              Third, even assuming we would or could overlook the foregoing flaws,
there is no point in considering the merits of defendant’s suggested instruction because
no evidence supports it. The trial court has no duty to instruct on lesser included offenses
not supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th
142, 162.) In Bryant, the defendant testified she did not intend to kill her boyfriend and a
jury could have concluded she lacked the alternate component of malice, a conscious
disregard for life, because she stabbed him in the heat of struggling for the knife. Here,
defendant did not testify and there was no evidence he did not appreciate the risk posed
by the knife. Rather, he drew the knife from his pocket and flipped it open to confront



                                             12
his victims. Consequently, the trial court did not err in failing sua sponte to modify the
involuntary manslaughter instruction.
                                             III
                                      DISPOSITION
              The judgment is affirmed.




                                                   ARONSON, ACTING P. J.

WE CONCUR:



FYBEL, J.



THOMPSON, J.




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