Filed 8/26/13 P. v. Plascencia CA3
                                                  NOT TO BE PUBLISHED
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                     IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                             THIRD APPELLATE DISTRICT

                                                            (Sacramento)

                                                                    ----



THE PEOPLE,                                                                                               C068979

                     Plaintiff and Respondent,                                                (Super. Ct. No. 09F06199)

          v.

JOSE PLASCENCIA,

                     Defendant and Appellant.




          Defendant Jose Plascencia, an inmate at New Folsom Prison, physically fought
with Officer Wallace, Lieutenant Ventimiglia and Sergeant Quinn. He claimed he acted
in self-defense in response to Wallace‟s “sudden aggression” and ensuing actions by
other officers. The jury found defendant guilty of one count of battery by a prisoner of
a non-confined person (Ventimiglia) and two counts of obstructing an officer in the
performance of his duties (Ventimiglia and Quinn). It acquitted him of battery and
obstruction of Wallace.
          Defendant appeals his conviction, contending the trial court failed to adequately
instruct the jury on self-defense. He argues the court had a duty to instruct sua sponte




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with CALCRIM No. 3470 (3470) and the failure to do so resulted in prejudicial error.
As we explain, we disagree and shall affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       Charges
       The People charged defendant with two counts of battery by a prisoner on a non-
confined person (Pen. Code,1 § 4501.5) as against both Wallace (count one) and
Ventimiglia (count two) and three counts of obstructing an officer in the performance of
his duties as against Wallace (count four), Ventimiglia (count three) and Quinn (count
five). (§ 69) They also alleged defendant had sustained three prior serious felony
convictions. (§§ 1192.7, subd. (c), 667, subds. (b)-(i), 1170.12.)
       People’s Case at Trial
       Defendant was an inmate in the general population of New Folsom prison. In
April 2009, defendant was in an interview room; Wallace and Ventimiglia were also in
the room, while Quinn remained outside.
       The interview was going well; defendant was cooperative, no angry or harsh
words were exchanged, and defendant was not handcuffed. At the end of the interview,
defendant stood up, turned his back toward Wallace, and placed his hands behind his
back to be handcuffed. He then suddenly spun toward Wallace, said “don‟t take this
personal” and punched Wallace in the face. Wallace stumbled backwards. Defendant
moved toward him and threw another punch. Wallace grabbed defendant‟s wrist and the
men struggled as Ventimiglia came to assist Wallace. Ventimiglia grabbed defendant‟s
shoulder and defendant hit him in the eye. Defendant continued to struggle with
Ventimiglia and Wallace, punching at them and thrashing around to avoid being
handcuffed. Quinn saw the men struggling and defendant swinging his closed fist at




1 Further undesignated statutory references are to the Penal Code.


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Wallace. He forced the door open and defendant, Wallace and Ventimiglia fell to the
ground. Quinn tried to restrain defendant in a bear hug and by grabbing his right hand
and holding defendant against the wall. Defendant continued to resist, thrashing and
swinging his arms. With the assistance of additional staff, defendant was ultimately
subdued.
       Defendant’s Case at Trial
       Defendant admitted he struggled with the officers, but claimed he acted in self-
defense. He testified that as Wallace was placing him in handcuffs, Wallace asked if
defendant had any information on misconduct by other inmates, to which defendant
responded, “Fuck no.” Wallace then aggressively grabbed defendant‟s wrists, yanked his
collar and hit the back of his head. Defendant then turned and hit Wallace. As Wallace
was coming back at defendant, defendant tried to hit Wallace again and missed.
Ventimiglia then came running toward defendant with his fist raised, looking as though
he was going to hit defendant. Defendant was afraid he was going to be hurt by
Ventimiglia, so defendant hit him. He thought the officers were going to beat him
because he refused to provide information on other inmates. During the struggle, the
officers “hit him all over.” Defendant denied ever saying it was not “personal.”
       People’s Rebuttal Case
       Wallace denied aggressively gabbing defendant‟s hands, the back of his collar or
hitting him the head. He also denied asking defendant to inform on other inmates.
Ventimiglia denied that either he or Wallace asked defendant to inform on other inmates
and denied punching defendant in the face or hitting him in the head.
       Instructions and Verdicts
       The trial court instructed the jury that as an element of both battery and assault, the
prosecution had to establish defendant did not act in self-defense. It also instructed that
an officer is not lawfully performing his duties if using unreasonable or excessive force.
The trial court further instructed the jury that a defendant is not guilty of resisting an

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officer who is lawfully performing his duties if the officer is using unreasonable or
excessive force. It described and defined the lawful performance of a custodial officer‟s
duties and a police officer‟s duties, each of which includes the provision that an officer is
not lawfully performing his duties if using unreasonable or excessive force. Those
instructions also specify that if an officer uses unreasonable or excessive force, a person
may lawfully use reasonable force to defend himself. The trial court instructed the jury
that a person‟s use of force to defend himself is reasonable if (1) it is the amount of force
he actually believes is reasonably necessary to protect himself and (2) is no more force
than a reasonable person in the same situation would believe is necessary. It did not read
3470, regarding the general right to self-defense; neither party requested that instruction.
          The jury found defendant guilty of one count of battering Ventimiglia and
obstructing Ventimiglia and Quinn. It acquitted him on all counts related to Wallace.
In bifurcated proceedings, the jury found the prior conviction allegations true. The trial
court struck one of the prior convictions and sentenced defendant to 25 years to life in
prison.
                                         DISCUSSION
                                                 I
                                            Overview
          Defendant contends the trial court prejudicially erred in failing to sua sponte
instruct the jury on self-defense as set forth in 3470. As relevant to defendant‟s claims,
3470 provides that:
          “The defendant acted in lawful self-defense . . . if:
          “1. The defendant reasonably believed that he was in imminent danger of
suffering bodily injury or was in imminent danger of being touched unlawfully;
          “2. The defendant reasonably believed that the immediate use of force was
necessary to defend against that danger;
          “AND

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       “3. The defendant used no more force than was reasonably necessary to defend
against that danger.
       “[¶] . . . [¶]
       “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.
       “[¶] . . . [¶]
       “[If you find that the defendant received a threat from someone else that [he]
reasonably associated with [the victim], you may consider that threat in deciding whether
the defendant was justified in acting in self-defense.]
       “[¶] . . . [¶]
       “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 of <insert crime(s) charged>.”
       “It is well-settled that even in the absence of a request, the trial court must instruct
the jury on the general principles of law relevant to the issues raised by the evidence
(People v. Breverman (1998) 19 Cal.4th 142, 154) and on defendant's theory of defense
where „“. . . it appears that the defendant is relying on such a defense, or if there is
substantial evidence supportive of such a defense . . . .”‟ [Citations.]” (People v. Olguin
(1981) 119 Cal.App.3d 39, 46.)
       In this case, defendant was relying on a theory of self-defense and the failure to act
in self-defense is an element of the offense that the People must establish. Thus, some
instruction on self defense was necessary. This does not mean, however, that the trial
court erred in failing to include the language from the instructions that defendant now
argues was required. As we explain post, there was no error.



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       “Review of the adequacy of instructions is based on whether the trial court „fully
and fairly instructed on the applicable law.‟ [Citation.]” (People v. Ramos (2008) 163
Cal.App.4th 1082, 1088.) In examining the record for error in jury instructions, we
consider the instructions as a whole and assume jurors are intelligent persons, capable of
understanding and correlating all jury instructions which are given. (Ibid.) “„Instructions
should be interpreted, if possible, so as to support the judgment rather than defeat it if
they are reasonably susceptible to such interpretation.‟ [Citation.]” (Ibid.)
                                              II
                                    Specific Contentions
       Defendant complains that “the lack of a [3470] instruction meant the jury was not
directed to consider all the elements in the case which might be expected to operate on
the mind of a person in [defendant‟s] circumstances, with respect to self-defense.” He
adds that because 3470 was not given, the jury was not informed that: (1) if defendant‟s
beliefs about the need to act in self-defense were reasonable, the perceived danger need
not have actually existed; (2) the People had the burden of dispelling any reasonable
doubts as to the existence of self-defense; and (3) a threat by one person, Wallace, could
be interpreted to require self-defense against another person, such as Quinn and
Ventimiglia. He observes that the absence of language on the need to avoid “imminent
harmful or offensive” conduct contained in 3470 appeared to limit self-defense to a
situation where the battery had already occurred. We address defendant‟s various
contentions in the order we find most efficient.
       A. Burden of Proof
       Defendant first complains that by failing to give 3470, the trial court did not
adequately inform the jury that the People bore the burden to dispel any reasonable doubt
as to whether defendant‟s actions amounted to self-defense. We are not persuaded.
       The trial court described and defined the beyond a reasonable doubt standard
(CALCRIM No. 220); it instructed the jury that each fact essential to establish guilt must

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be proven beyond a reasonable doubt (CALCRIM No. 220); and it told the jury that the
fact that defendant did not act in self-defense was a fact the People were required to
prove as to battery by a prisoner on a non-prisoner, and the lesser included offenses of
simple battery and simple assault. (§§ 4501.5, 242, 243, subd. (a); CALCRIM Nos.
2723, 960, 915.) Thus, the jury was properly advised that the People bore the burden to
dispel any reasonable doubts about whether defendant acted in self-defense.
       B. Appropriateness of Unchallenged Instructions
       Defendant next argues by failing to instruct with 3470, the trial court did not
adequately advise the jury to consider “all the elements in the case which might be
expected to operate on the mind of a person in [defendant‟s] circumstances.” Defendant
does not complain that the instructions given were incorrect. Rather, he claims that they
were incomplete in that they did not incorporate those portions of 3470 that instruct: (1)
if defendant‟s beliefs about the need to act in self-defense were reasonable, the perceived
danger need not have actually existed; (2) self-defense can apply when facing an
imminent prospective application of force; and, (3) a threat by one person could be
interpreted by defendant to require self-defense against another.
       “„Generally, a party may not complain on appeal that an instruction correct in law
and responsive to the evidence was too general or incomplete unless the party has
requested appropriate clarifying or amplifying language.‟ [Citation.]” (People v. Hudson
(2006) 38 Cal.4th 1002, 1011-1012.) Defendant made no such request here.
Accordingly, his claims of instructional error are forfeited.
       In any event, the claims lack merit. The reasonableness of a defendant‟s beliefs
and conduct are judged from the viewpoint of a reasonable person in the same position as
defendant. (People v. McGee (1947) 31 Cal.2d 229, 238.) “To do this, [the jury] must
consider all the „“„facts and circumstances . . . in determining whether the defendant
acted in a manner in which a reasonable man would act in protecting his own life or
bodily safety.‟”‟ [Citation.]” (People v. Jefferson (2004) 119 Cal.App.4th 508, 518,

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original italics.) Here, the trial court appropriately instructed the jury that defendant was
entitled to defend himself from unreasonable or excessive force by using the degree of
force he actually believed was reasonably necessary to protect himself and use no more
force than “a reasonable person in the same situation would believe is necessary for his
or her protection.” (CALCRIM Nos. 2670, 2671, emphasis added.) The phrase “in the
same situation” includes considering “all the elements which might be expected to
operate on the mind of a person in defendant‟s circumstances.”
       The trial court also clarified that the jury must decide all the facts based on the
evidence admitted at trial. The failure to expressly reference specific evidence cannot
reasonably be construed as a direction to the jury to exclude that evidence from its
consideration. (People v. Spencer (1996) 51 Cal.App.4th 1208, 1220-1221.) Similarly,
the court instructed the jury that it must follow the law as the court explained it and to
follow the instructions to the facts as it found them. The court informed the jury that
defendant had to actually and reasonably believe the use of force was reasonably
necessary to protect himself. It is not reasonable to presume the jury added the
nonexistent requirement that defendant be correct in his assessment of the danger he
believed he faced. Thus, taken as a whole, the instructions adequately advised the jury to
consider all the relevant circumstances in which defendant found himself. (Ibid.)
       While we agree that the instructions as given did not include an explanation that
the person claiming self-defense must reasonably believe he is in imminent danger of
being touched unlawfully or suffering bodily injury, this explanation does not apply to
defendant‟s case. An inmate has a limited right of self-defense against an officer.
(People v. Saavedra (2007) 156 Cal.App.4th 561, 569.) A correctional officer may
lawfully use force on an inmate to restrain a person, to overcome resistance, to prevent
escape, or in self-defense, but the use of force must be reasonably calculated to further
the lawful purpose. (Pen. Code, § 835a; CALCRIM No. 2671; cf., Cal. Code Regs., tit.
15, § 3268, subd. (a)(1).) The applicable statutes were fashioned to protect officers

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“against violent interference with the performance of [their] duties” (People v. Buice
(1964) 230 Cal.App.2d 324, 336; see also People v. Martin (2005) 133 Cal.App.4th 776,
782.) Thus, an inmate‟s right to self-defense against an officer applies only when the
inmate is faced with an improper use of force by the officer, because that is what renders
the officer‟s conduct unlawful. (See People v. Coleman (1978) 84 Cal.App.3d 1016,
1023.) Thus, in this context, defendant did not have a right to use force to resist an
officer unless that officer was actually using unreasonable or excessive force.
Prospective force by an officer does not trigger an inmate‟s right to defend himself as
does actual use of improper force.
       Defendant further claims that the trial court was required to tell the jury that if it
found defendant had received a threat from Wallace that he reasonably associated with
Quinn and Ventimiglia, it could consider that fact in assessing the reasonableness of
defendant‟s actions. Instructions need only be given on issues supported by substantial
evidence. (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1055.) “Substantial
evidence is „evidence which is reasonable, credible, and of solid value[.]‟ [Citations.] On
review, we determine independently whether substantial evidence to support a defense
existed.” (Id. at pp. 1055-1056.) Thus, to meet that standard in this case, there would
have to be substantial evidence that defendant received a threat from Wallace and that he
reasonably associated that threat with Quinn and Ventimiglia. There is not substantial
evidence for either claim.
       There was no evidence that Wallace ever threatened defendant; rather, defendant‟s
claim was that in response to defendant‟s refusal to inform on other inmates, Wallace
assaulted him. Thus there was no evidence defendant “received a threat from someone”
such that this portion of the instruction would be merited. (CALCRIM No. 3470;
(Compare with People v. Minifie (1996) 13 Cal.4th 1055, 1061-1062, 1065-1066
(Minifie); People v. Pena (1984) 151 Cal.App.3d 462, 469-472.)



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       Further, even were we to construe Wallace‟s hitting defendant as a threat received
by defendant from Wallace, there is no evidence defendant reasonably associated that
threat with Quinn and Ventimiglia.2 A self-defense claim is viewed from the perspective
of the defendant--threats from a family and its friends, a clan, a gang or another group
“united against [defendant]” may reasonably affect defendant‟s state of mind, particularly
when the group has a reputation for violence known to defendant. (Minifie, supra, 13
Cal.4th at p. 1066.) Here, there is no evidence that Wallace, Quinn and Ventimiglia were
members of a group united against defendant. Other than their status as officers, there
was no evidence of any particular relationship or history between the officers or
involvement in any group. There is no evidence of any pre-existing animosity between
defendant and the officers, no evidence of a history of unified activity by the officers, and
no evidence of a record of concerted violence committed by the officers. Nor is there any
evidence the officers had a reputation for any such conduct. This leaves only their status
as fellow officers to support the inference they would act in concert to beat defendant
because of his refusal to inform on other inmates. Their status as officers alone cannot
reasonably support such an inference. To the contrary, when there is a physical
altercation between an officer and an inmate, the other officers are obligated to intervene
and break up, or end, the fight. (Cal. Code Regs., tit. 15, § 3271, 3286, 3300; see also
Furtado v. State Personnel Board (2013) 212 Cal.App.4th 729, 746-747.) This is true
whether defendant or Wallace were the aggressor; it is true even if Wallace were using
excessive force. (See O'Neill v. Krzeminski (2d Cir.1988) 839 F.2d 9, 11 [“A law




2 To the extent defendant argues his acquittal of counts related to Wallace weakens his
conviction of counts related to Quinn and Ventimiglia, we note only that it is well-settled
that an acquittal on one charge does not change the strength of the evidence on another,
which might have been due to lenity or other reasons. (See People v. Lewis (2001) 25
Cal.4th 610, 655–656; People v. Brown (1985) 174 Cal.App.3d 762, 769; People v. Pahl
(1991) 226 Cal.App.3d 1651, 1656–1657.)

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enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose
constitutional rights are being violated in his presence by other officers”].)
       An inference is not reasonable if it is based only on speculation. (People v.
Hughes (2002) 27 Cal.4th 287, 365.) On this record, the reasonable inference to be
drawn from the evidence of Quinn and Ventimiglia joining in the fight between
defendant and Wallace is that they were joining in order to end the fight--in other words,
doing their duty. “The right of the accused to have the jury instructed upon every theory
of his innocence of the crime charged does not extend to a claim of self-defense based
upon purely imagined facts or upon inference that could not be drawn by rational minds.”
(People v. Hudgins (1967) 252 Cal.App.2d 174, 179.) Since there was not substantial
evidence to support this theory of defense, the court was not obligated to instruct on it.
(People v. Joiner (2000) 84 Cal.App.4th 946, 972; see also People v. Breverman (1998)
19 Cal.4th 142, 162.)
                                      DISPOSITION
       The judgment is affirmed.

                                                            DUARTE                     , J.

We concur:


           BLEASE                          , Acting P. J.


           MAURO                           , J.




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