Filed 10/9/13 P. v. Martinez CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B241311

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA054117)
         v.

MATTHEW R. MARTINEZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Carol Koppel, Judge. Affirmed.


         Janet J. Gray, 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, Susan Sullivan Pithey and Rene
Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.


                                        _________________________
       Defendant Matthew R. Martinez (Martinez) appeals his convictions for attempted
murder (Pen. Code, §§ 664, 187)1 and assault with a deadly weapon (§ 245, subd. (a)).
He contends: (1) the trial court erred when it gave an incomplete and/or erroneous
instruction regarding when a mutual combatant or initial aggressor can reclaim the right
of self-defense; and (2) the People failed to prove malice in the attempted murder count
because there was insufficient evidence that he did not act in imperfect self-defense or
heat of passion. We find no error and affirm.
                                            FACTS
The People’s Case
       At one time in his life, Eric Jones (Jones) was homeless. When he sees homeless
people, he encourages them to improve their lives.
       Jones first saw Martinez at a 99 Cent Store. While his wife and son went into the
store, Jones got out of his car, approached a homeless man named Kenny and spoke to
him. Then Jones spoke to Martinez, who was nearby, and tried to give him
encouragement by commiserating about his situation. After Jones walked away,
Martinez took off his shirt and went around the parking lot yelling, “Whoop, whoop,
whoop, whoop.” Martinez was angry at Jones and kicked his car. Eventually, Martinez
calmed down and joined a group of people that included his girlfriend, Brittany Christine
Martinez (Brittany). He had a pit bull. When Jones left, his wife drove. At no time did
Jones try to drive his car into Martinez.
       The second time Jones saw Martinez was at a gas station where Martinez and
Kenny were begging for money. The pit bull was with Martinez, and it looked full
grown. It scared Jones. Martinez kicked Jones’s car three times. Jones did not threaten
Martinez, try to run him over, rev his car engine, or stick his fingers at Martinez and
pretend to have a gun.




1
       All further statutory references are to the Penal Code unless otherwise indicated.

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       On September 18, 2011, Jones was barbecuing at home with his family. At about
2:00 p.m. he had two beers. Sometime between 4:00 p.m. and 6:00 p.m., he went to buy
beer at Stater Bros. Supermarket (Stater Bros.).
       After Jones left Stater Bros. and got back into his car, he saw Martinez and
Brittany walking the pit bull. There was an ensuing altercation, which was witnessed in
part by two Stater Bros. employees, Daniel Curtis (Curtis) and Darren Blackwood. At
the time, Jones was about 50 years old. Martinez was younger.
       Curtis testified that he was 100 yards away. He saw Jones pull up to a stop sign
near where Martinez was located. They argued. Martinez pounded on the driver’s side
window and shouted something that sounded like, “Get out of that car[,] I’ll kick your
ass.” Jones yelled back. Then Martinez moved to the front of the car and pounded on the
hood. Curtis did not see Martinez kick the car. Jones testified that Martinez gave him a
mean look but said nothing. Then Martinez kicked the front fender.
       Jones jumped out of his car to see if there was any damage. Because he was
scared of the pit bull, he got a baseball bat from the trunk. While holding the bat in the
middle, he walked to the front of the car to confront Martinez. Jones did not raise the bat.
He intended to use the bat to protect himself in case the pit bull attacked. According to
Curtis, the two men argued back and forth. When asked at trial, Jones said he could not
remember if he said anything to Martinez. However, Jones specifically denied making
threats. Curtis testified that Martinez “sicked” the dog on Jones and it charged him. To
protect himself, Jones hit the dog with the bat. The dog yelped and ran away.
       Martinez charged Jones. He swung the bat defensively while backing up. As
Martinez tried to take the bat, he got hit a couple of times. Jones backed all the way
around his car.
       Curtis testified that Martinez and Brittany rushed Jones and took the bat away.
But according to Jones, he simply dropped the bat. At that point, Martinez took
possession of the bat and started swinging it, which caused Jones to dodge and back up
against a wall. Martinez hit Jones with the bat at least three times as he tried to get away.
To Curtis, the hits sounded like someone hitting a watermelon with a bat. He testified

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that Martinez was “zealous” and “mad.” One of the blows hit Jones above the right eye.
Another blow hit him on the left side of the head. After the first time he was hit in the
head, Jones said he could not have posed a threat to Martinez. Jones testified that “[h]e
hit me so hard my eye could have popped out.” In fact, the blow pushed blood through
his retina and he ended up needing eye surgery as a result. One arm was broken in three
places, and he later had pins put in his hand, wrist and forearm. His other arm was also
injured. Blackwell testified that Jones did not do anything aggressive toward Martinez.
According to Blackwell, the blows sounded like wooden thumps. Jones slumped over in
a falling down motion and barely moved. He ended up with bruises “all over.” Martinez
stopped hitting Jones after hearing sirens approach. When Curtis shouted at Martinez, he
dropped the bat, kicked Jones and fled the scene.
       Jones went to the hospital for three or four weeks. For the first week, he was
unconscious. Due to the fight, Jones had a broken nose and multiple cuts on his head that
had to be closed with staples. He ended up with a scar on the back of his head, the side
of his head and over his eye. Because of his broken hand, he could no longer close his
fist. During surgery on his arm, he was given blood and plasma. His blood started to clot
in his leg, so the doctors had to put a filter inside of him. Doctors also operated on
Jones’s eye. There was a 20 percent chance he could go blind. He has long term nerve
damage and headaches every day. He cannot see well out of his damaged eye, and he has
problems with memory.
The Defense
       Brittany testified that while Martinez and she were behind Stater Bros., Jones
approached them in his car. He said, “Remember me,” and made a hand gesture as if
shooting at them. When he opened his door to get out, Martinez used his foot to close the
door. Jones exited his car, went to his trunk and then, swinging a bat, approached
Martinez. Martinez took a few steps back and blocked the bat with his forearm. Jones
swung the bat at least three or four times. At one point, he swung so hard that he spun
and fell. Martinez was nicked. Because he had to lean back to avoid getting hit, he also



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fell. They both scrambled to get back up. Jones told Martinez, “You’re going to jail
tonight. I want the cops to come.”
       According to Brittany, Jones appeared drunk. He was swinging wildly and
misplacing his footsteps. He did not take a proper stance when he swung the bat, which
is why he fell.
       After he stood up, Jones swung at Martinez again. Brittany’s pit bull—which was
a year and four months old—gave Jones a warning bark. The dog was 45 to 50 pounds.
Jones hit it in the head. It ran into the middle of the street. Brittany had to run after the
dog, grab it by the leash and bring it back. Jones advanced on Brittany. When Jones
started to swing the bat, she grabbed it mid-swing and Martinez punched him in the face.
Soon after, Jones let go of the bat.
       Brittany held the bat in a nonthreatening manner. Jones lunged at her. She
thought he was trying to recover the bat. Martinez took the bat from Brittany. When
Jones lunged at Martinez, he at first backed up. But when Jones kept charging, Martinez
used the bat to hit him. Even though he had been hit, Jones rushed Martinez twice more
and got hit twice more. After the third hit, Jones stopped. So did Martinez. Jones said
something, then got into his car and drove away.
The Sentence
       The jury found Martinez guilty of attempted murder and assault with a deadly
weapon. As to the attempted murder count, the jury found true the allegation that
Martinez personally used a deadly weapon within the meaning of section 12022,
subdivision (b)(1). Regarding both counts, the jury found true the allegation that
Martinez inflicted great bodily injury within the meaning of section 12022.7, subdivision
(a). The trial court sentenced Martinez to 13 years in state prison. The sentence was
calculated based on the upper term of nine years for attempted murder, three years for the
great bodily injury enhancement, and one year for the use of a deadly weapon
enhancement.
       This timely appeal followed.



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                                       DISCUSSION
I. The Mutual Combat/Initial Aggressor Instruction was Proper.
       Pursuant to CALCRIM No. 3471, the trial court instructed that a “person who
engages in mutual combat or who starts a fight has a right to self-defense only if: One,
he actually had in good faith tried [to] stop fighting, and two, 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 three, 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.”
       The trial court omitted the paragraph in CALCRIM No. 3471 that 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/herself) 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].”
       Martinez assigns error to the trial court’s failure to instruct on the omitted
paragraph. He relies on the holding in People v. Quach (2004) 116 Cal.App.4th 294, 301
[if an opponent uses deadly force in response to nondeadly force by the defendant, the
defendant has a right of self-defense].
       Upon review, we find no error. A trial court must instruct on any affirmative
defense that is supported by substantial evidence. (People v. Salas (2006) 37 Cal.4th
967, 982.) But the evidence did not support Martinez’s contention that he was entitled to
reclaim self-defense. While Brittany’s testimony suggests that Martinez initiated the
altercation with nondeadly force, and that Jones responded with deadly force, her
testimony did not suggest that it was impossible for Martinez to withdraw from the fight.
Rather, it suggested the opposite. According to Brittany, Jones appeared to be drunk and
was misplacing his steps when he was swinging the bat. Martinez was not boxed in, and

                                              6
there was no evidence that he was unable to withdraw from the fight by retreating.
Certainly, assuming Brittany’s version of events, Martinez could have easily withdrawn
once Jones turned his attention toward Brittany’s pit bull. Further, it must be
acknowledged that Martinez quickly came into possession of the bat. He could have
tossed the bat away and withdrawn then.
       Continuing on, Martinez contends that the evidence did not support the mutual
combat/initial aggressor instruction or, in the alternative, the trial court failed to properly
define mutual combat. These contentions lack merit.
       In the case against Martinez, there was substantial evidence from which the jury
could have concluded that Martinez was the initial aggressor. The evidence included the
following: Martinez had kicked Jones’s car on prior occasions; Martinez pounded on
Jones’s car window and said something that sounded like, “Get out of that car[,] I’ll kick
your ass;” Martinez either kicked the car or pounded on the hood; when Jones
approached, Martinez let the pit bull off its leash to attack Jones; and after Jones hit the
dog, Martinez rushed Jones. Likewise, there was substantial evidence that Martinez and
Jones impliedly agreed to engage in mutual combat. It showed that Martinez kicked the
car door to keep Jones from getting out in response to threats from Jones, or Martinez
pounded on the window and issued his own threat. At that point, the jury could have
concluded that there was an invitation to fight by either Martinez or Jones. Jones got out,
grabbed a bat and approached Martinez. Martinez did not back down. Clearly, both had
a chance to reflect on what might happen if the confrontation escalated. From this
evidence, the jury could have concluded that the ensuing fight began or continued by
mutual consent or agreement.2
       Though Martinez argues that the trial court failed to give the jury the legal
definition of mutual combat set forth in People v. Ross (2007) Cal.App.4th 1033 (Ross),

2
        Martinez cites Ross and People v. Rogers (1958) 164 Cal.App.2d 555, 557 when
arguing that the trial court should not have instructed on mutual combat. We have
reviewed those cases and find them distinguishable. In any event, even assuming there
was no evidence of mutual combat, there was certainly evidence that Martinez was the
initial aggressor, which made the instruction proper.

                                               7
this argument is belied by the record. Ross explained that “case law confirms that as used
in this state’s law of self-defense, ‘mutual combat’ means not merely a reciprocal
exchange of blows but one pursuant to mutual intention, consent, or agreement
preceding the initiation of hostilities.” (Ross, supra, 155 Cal.App.4th at p. 1045.)
CALCRIM No. 3471 was sufficient under Ross because it informed the jury that two
people are engaged in mutual combat only if they expressly or impliedly agreed to fight.
II. There was Sufficient Evidence to Negate the Possibility that Martinez Acted in
Imperfect Self-Defense or Heat of Passion.
       Martinez argues that his attempted murder conviction should be reversed because
there is insufficient evidence that he acted with malice. The question presented is
whether the record contains substantial evidence from which a reasonable trier of fact
could find Martinez guilty beyond a reasonable doubt. (People v. Lenart (2004) 32
Cal.4th 1107, 1125.)
       We find no error.
       To prove attempted murder, a prosecutor must show that the defendant acted with
malice, i.e., the specific intent to kill. In addition, attempted murder requires the
commission of a direct but ineffectual act toward accomplishing the intended killing.
(People v. Smith (2005) 37 Cal.4th 733, 739; People v. Gonzalez (2012) 54 Cal.4th 643,
653–654; §§ 187, subd. (a), 192.)
       “Malice is presumptively absent when the defendant acts upon a sudden quarrel or
heat of passion . . . , or [attempts to kill] in the unreasonable, but good faith, belief that
deadly force is necessary in self-defense. [Citation.]” (People v. Manriquez (2005) 37
Cal.4th 547, 583.) If a jury finds that a defendant held an “‘honest but unreasonable
belief that [it was necessary] to defend oneself from imminent peril to life or great bodily
injury,’” he or she may be convicted of attempted voluntary manslaughter in imperfect
self-defense. (People v. Blakeley (2000) 23 Cal.4th 82, 86; People v. McCoy (2001) 25
Cal.4th 1111, 1115; §§ 192, 664.)
       Martinez’s first argument is based on imperfect self-defense.



                                                8
       The doctrine of imperfect self-defense requires that the “[f]ear of future harm—no
matter how great the fear and no matter how great the likelihood of the harm—will not
suffice. The defendant’s fear must be of imminent danger to life or great bodily injury.
‘“[T]he peril must appear to the defendant as immediate and present and not prospective
or even in the near future. An imminent peril is one that, from appearances, must be
instantly dealt with.” . . . [¶] This definition of imminence reflects the great value our
society places on human life.’ [Citation.] Put simply, the trier of fact must find an actual
fear of an imminent harm. Without this finding, imperfect self-defense is no defense.”
(In re Christian S. (1994) 7 Cal.4th 768, 783 (Christian S.).)
       “The principles of self-defense are founded in the doctrine of necessity. This
foundation gives rise to two closely related rules. . . . First, only that force which is
necessary to repel an attack may be used in self-defense; force which exceeds the
necessity is not justified. [Citation.] Second, deadly force or force likely to cause great
bodily injury may be used only to repel an attack which is in itself deadly or likely to
cause great bodily injury; thus ‘[a] misdemeanor assault must be suffered without the
privilege of retaliating with deadly force.’ [Citations.]” (People v. Clark (1982) 130
Cal.App.3d 371, 380.)
       A defendant cannot invoke imperfect self-defense if he initiates a physical assault
and creates a situation in which his adversary’s attack or pursuit is legally justified.
(Christian S., supra, 7 Cal.4th at p. 773, fn. 1.)
       We easily conclude that there was sufficient evidence that Martinez did not act in
imperfect self-defense. The evidence favorable to the prosecution showed that when
Jones approached, Martinez used his pit bull as a weapon to attack Jones. After Jones hit
the dog, Martinez rushed Jones, causing him to back up. If Jones swung the bat, it was
only in lawful self-defense during a scuffle for the bat. Under Christian S., Martinez
cannot claim imperfect-self defense because he initiated a physical assault and Jones’s
response was lawful. Moreover, Jones did not use deadly force, so Martinez’s use of
deadly force could not be justified. Further, Martinez took possession of the bat, which
rendered Jones defenseless. At that point, Jones could not have possibly posed an

                                               9
imminent threat of death or great bodily injury. Nonetheless, Martinez used the bat to hit
Jones in the head and body with such force that it could be heard over a hundred yards
away and sounded like a watermelon being hit or a wooden thump. Jones slumped over
and was barely moving. According to the evidence, Martinez did not stop attacking until
he heard sirens and Curtis shouted. Before running away, Martinez kicked Jones, who
had already been incapacitated. In our view, the evidence painted a vivid picture of a
defendant who wanted to kill his victim. This conclusion is bolstered by the severity of
Jones’s injuries. (People v. Lashley (1991) 1 Cal.App.4th 938, 951 [serious injury is
evidence of intent to kill].)
       Martinez’s second argument is based on heat of passion.
       “Heat of passion arises when ‘at the time of the killing, the reason of the accused
was obscured or disturbed by passion to such an extent as would cause the ordinarily
reasonable person of average disposition to act rashly and without deliberation and
reflection, and from such passion rather than from judgment.’ [Citations.]” (People v.
Barton (1995) 12 Cal.4th 186, 201.) “[T]he factor which distinguishes the ‘heat of
passion’ form of voluntary manslaughter from murder is provocation. The provocation
which incites the defendant to homicidal conduct in the heat of passion must be caused
by the victim [citation], or be conduct reasonably believed by the defendant to have been
engaged in by the victim. [Citations.]” (People v. Lee (1999) 20 Cal.4th 47, 59.) The
qualifying passion can be any violent, intense, high-wrought or enthusiastic emotion, but
not revenge. If enough time elapses after the provocation for passion to subside and
reason to return before the attempted killing, the defendant cannot claim heat of passion.
(People v. Breverman (1998) 19 Cal.4th 142, 163.)
       The evidence favorable to the prosecution showed that Martinez had a history of
kicking Jones’s car. Outside of Stater Bros., Martinez gave Jones a mean look. Then
Martinez pounded on the window, shouted something akin to, “Get out of that car[,] I’ll
kick your ass,” and either pounded on the hood or kicked the front fender. The jury could
have concluded that Martinez provoked the fight, not Jones. After Jones got the bat, he
held it in the middle and did not raise it as he approached Martinez. Jones did not make

                                            10
any threats. The jury could have concluded that Jones confronted Martinez in a
nonviolent manner, nonoffensive manner, and he would not have caused an ordinary
person of average disposition to act rashly or without due deliberation and reflection. In
support of this conclusion, the jury could have found that Martinez acted with
deliberation and reflection because his first response was to take the calculated step of
using the pit bull as a weapon. Then he obtained the bat, kept attacking Jones, who was
defenseless, and inflicted severe injuries to his head, eye, hand, wrist, and forearm. Even
when Jones was incapacitated, Martinez kicked him. All this evidence suggests that
Martinez acted with cold calculation. Last, the jury could have concluded that Martinez
had been slighted when Jones offered encouragement about being homeless and was
seeking revenge for that slight. If he was seeking revenge, Martinez was barred from
claiming heat of passion.
                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                          ______________________________, J.
                                                ASHMANN-GERST

We concur:


_______________________________, P. J.
           BOREN


_______________________________, J.*
           FERNS




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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