Filed 8/17/16 P. v. Martinez CA4/1
                         NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.


                       COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                        DIVISION ONE

                                                STATE OF CALIFORNIA



THE PEOPLE,                                                                 D068954

          Plaintiff and Respondent,

          v.                                                                (Super. Ct. No. JCF34729)

ALDO MANUEL MARTINEZ,

          Defendant and Appellant.


          APPEAL from a judgment of the Superior Court of Imperial County, Ruth

Bermudez Montenegro, Judge. Affirmed.



          Cannon & Harris and Donna L. Harris for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew

Mestman and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
         A jury found Aldo Manuel Martinez guilty of one count of assault with a deadly

weapon (Pen. Code, § 245, subd. (a)(1)). The trial court sentenced Martinez to a four-

year prison term.

         Martinez contends that the trial court committed prejudicial error concerning two

jury instructions: (1) the instruction on self-defense; and (2) the instruction on asserting

self-defense in instances of mutual combat. We conclude that Martinez's arguments lack

merit, and we accordingly affirm the judgment.

                                              I.

                    FACTUAL AND PROCEDURAL BACKGROUND

         On February 17, 2015, at around 9:00 p.m., in El Centro, Julio Castrejon parked

his van next to the sidewalk at his sister-in-law's apartment while his wife went upstairs

to pick up their two young children. Castrejon's daughter came down the stairs by

herself, and Castrejon got out of the van to put her in the backseat. At that point,

Castrejon saw Martinez walking on the sidewalk, coming toward the van. According to

Castrejon, as Martinez walked by the van, Martinez stated, "What you looking at, you

son of a bitch." Castrejon replied, "Calm. Just chilling." Martinez stated, "You like me

or what, you son of a bitch." Castrejon responded by waving Martinez away and stating,

"No. That's it. That's enough. Just go on." Castrejon and Martinez did not know each

other.

         Castrejon saw that he was blocking someone from exiting a parking space, so he

backed up his van to let the person leave the parking space, and he then moved forward to

where he was originally positioned. As he was repositioning the van, Castrejon saw

                                              2
Martinez in his rearview mirror making insulting and challenging gestures toward him.

After Castrejon parked again, Martinez walked back up to Castrejon, who was in the

driver's seat of the van, and said, "What do you want? You want problems, you son of a

bitch." Castrejon later told police that he thought maybe Martinez misunderstood his

backing up of the van as an action of aggression directed toward Martinez, rather than a

movement to let someone exit a parking space. According to Castrejon, his driver's side

window was slightly open, and Martinez tried to punch him through the window, but

Martinez did not make contact with his face.

       Around that time, Castrejon's wife, Christina, came down the stairs with the

couple's son. She saw Martinez moving toward Castrejon, swearing at him and throwing

punches inside the van's window, which she believed made contact with Castrejon

approximately two times. Christina heard Martinez say something such as, "I'm going to

fuck you up."

       Castrejon explained that he was worried about his family's safety, so he took

action against Martinez by opening the door to the van and hitting Martinez with the

door. Castrejon got out of the van, and both men started throwing punches at each other.

Castrejon felt Martinez land a blow on the left side of his neck. Castrejon punched

Martinez several times in the face and body. Christina tried to pull the men apart, but

they continued fighting. Castrejon felt that he was bleeding and that a piece of skin was

hanging near his ear, which made him realize Martinez must have a knife, although he

never saw a weapon during the fight. Castrejon became more angry and started kicking

at Martinez's leg, trying to break it.

                                             3
       At some point, Castrejon tackled Martinez to the ground and the fight continued.

Finally, Christina succeeded in convincing Castrejon to end the fight, and Castrejon

withdrew. Martinez walked away from the area.

       Castrejon was taken by paramedics to the hospital, where it was discovered that he

had two cuts on the back of his neck, which required stiches and a transfer to San Diego

by helicopter for further evaluation.

       Martinez testified at trial and explained that on the night of the assault, he had just

been in an argument with his wife and had several alcoholic drinks. He was walking next

to the apartment complex, preparing to cross in back of Castrejon's van, when Castrejon

unexpectedly backed up, almost hitting Martinez. Martinez and Castrejon had no

interaction before the van backed up. Martinez was angry that Castrejon almost hit him,

and he therefore shouted rude remarks to Castrejon, swearing at him and telling him to

watch where he was going.

       According to Martinez, Castrejon then backed up the van so that the two men were

face-to-face. Castrejon flung open the door, hitting Martinez. Martinez backed away and

started swinging to defend himself. The two men then engaged in a fist-fight, with

Martinez hitting Castrejon two or three times in self-defense, and Castrejon hitting

Martinez four or five times. Castrejon tackled Martinez to the ground, kicking and

hitting him several more times and then putting his hands around Martinez's neck so that

he had difficulty breathing. According to Martinez, the fight ended when Castrejon

released the grip on his neck, and Martinez walked away. Martinez testified that he did



                                              4
not have a knife during the fight, and he did not hit or punch through the driver's side

window.

       Martinez was charged with and convicted of one count of assault with a deadly

weapon. (Pen. Code, § 245, subd. (a)(1).) The trial court sentenced Martinez to four

years in prison.

                                             II.

                                      DISCUSSION

A.     The Trial Court Did Not Err in the Jury Instruction on Self-defense

       We first consider Martinez's argument that the trial court erred in giving a jury

instruction on self-defense that misstated the applicable law.

       Based on CALCRIM No. 3470, the trial court gave the following instruction on

self-defense:

             "Self-defense is a defense to assault with a deadly weapon. The
       defendant is not guilty of that crime 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

                                             5
       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.

              "The defendant's belief that he was threatened may be reasonable
       even if he relied on information that was not true. However, the defendant
       must actually and reasonably have believed that the information was true.

               "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 death/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 of assault with a
       deadly weapon."

       Focusing solely on the first sentence of the instruction, which states that "[s]elf-

defense is a defense to assault with a deadly weapon," Martinez contends that the

instruction misstated the law because it erroneously led the jury to believe that a

defendant is "entitled to use self[-]defense to defend himself only if he was assaulted with

a deadly weapon."1 (Italics added.) As it is undisputedly not a correct statement of the

law that a defendant may assert the legal defense of self-defense only in instances where


1      The first sentence of CALCRIM No. 3470 states: "Self-defense is a defense to
<insert list of pertinent crimes charged>." Here, the first sentence of the instruction as
given by the trial court was created by inserting the name of the crime with which
Martinez was charged, namely assault with a deadly weapon.
                                              6
the defendant is himself assaulted with a deadly weapon (see People v. Minifie (1996) 13

Cal.4th 1055, 1064 [threat of imminent bodily injury justifies self-defense]), Martinez

contends that the jury was misled by the instruction and the judgment should be reversed.

As we will explain, the argument lacks merit.

       "A defendant challenging an instruction as being subject to erroneous

interpretation by the jury must demonstrate a reasonable likelihood that the jury

understood the instruction in the way asserted by the defendant." (People v. Cross (2008)

45 Cal.4th 58, 67-68 (Cross).) " '[T]he correctness of jury instructions is to be

determined from the entire charge of the court, not from a consideration of parts of an

instruction or from a particular instruction.' " (People v. Carrington (2009) 47 Cal.4th

145, 192.) Further, in examining the entire charge we assume that jurors are

" ' " ' "intelligent persons and capable of understanding and correlating all jury

instructions which are given." ' " ' " (People v. Smith (2008) 168 Cal.App.4th 7, 13.)

       Here, when the entire instruction on self-defense is considered, there is not a

reasonable likelihood that the jury understood it in the way asserted by Martinez. The

interpretation advanced by Martinez is possible only by ignoring the second sentence of

the instruction. Taken together, the first and second sentence state: "Self-defense is a

defense to assault with a deadly weapon. The defendant is not guilty of that crime if he

used force against the other person in lawful self-defense." (Italics added.) The italicized

portion of the second sentence, referring to "that crime," unambiguously relates back to

the crime of assault with a deadly weapon identified in the first sentence. Therefore,

reading the two sentences together, any reasonable person would understand the first

                                              7
sentence to mean that self-defense is a legal defense to the crime of assault with a deadly

weapon.

       Subsequent portions of the instruction make clear that the type of threat that gives

the defendant the right to use self-defense is not limited to a threat of injury from a

deadly weapon, but rather any "imminent danger of suffering bodily injury."

Specifically, the first element specified in the instruction requires a finding that the

defendant "reasonably believed that he was in imminent danger of suffering bodily

injury," and the instruction later repeats this requirement by stating that "[t]he defendant

must have believed there was imminent danger of bodily injury to himself."

       Further, when a defendant claims that an instruction was misleading, we may also

"consider the arguments of counsel in assessing the probable impact of the instruction on

the jury." (People v. Young (2005) 34 Cal.4th 1149, 1202.) Here, nothing was said

during closing argument, either by the prosecutor or defense counsel, to suggest that

Martinez could claim the legal defense of self-defense only if Castrejon assaulted him

with a deadly weapon. Instead, the portion of the closing arguments discussing self-

defense focused on whether Martinez reasonably believed he was in immediate danger of

bodily harm.

       Accordingly, we conclude there is no reasonable likelihood that the jury

understood the first sentence of the instruction to mean that Martinez acted in self-

defense only if he was responding to an assault with a deadly weapon.




                                               8
B.    The Trial Court Did Not Err in the Jury Instruction on Mutual Combat

      Martinez's second argument is that the trial court erred in instructing on mutual

combat for two reasons: (1) the evidence did not support a mutual combat instruction;

and (2) the mutual combat instruction misstated the law.

      1.     The Mutual Combat Instruction

      The trial court instructed with CALCRIM No. 3471, titled "Right to Self-defense:

Mutual Combat or 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."


                                             9
       2.        Martinez's Argument That Insufficient Evidence Supported the Instruction
                 Lacks Merit

       Martinez's first argument is that the instruction should not have been given to the

jury because "there was insufficient evidence either that [Martinez] started the fight or

that there was any agreement to fight."

       Martinez's argument relies on the principle that "[i]t is error to give an instruction

which, while correctly stating a principle of law, has no application to the facts of the

case." (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) "The trial court has the duty to

instruct on general principles of law relevant to the issues raised by the evidence

[citations] and has the correlative duty 'to refrain from instructing on principles of law

which not only are irrelevant to the issues raised by the evidence but also have the effect

of confusing the jury or relieving it from making findings on relevant issues.' " (People

v. Saddler (1979) 24 Cal.3d 671, 681.)

       As an initial matter, we note that although Martinez now claims that insufficient

evidence supported the instruction, he requested the instruction in the trial court by

including it in his packet of requested instructions. Accordingly, the doctrine of invited

error applies.

       " 'The doctrine of invited error is designed to prevent an accused from gaining a

reversal on appeal because of an error made by the trial court at his behest. If defense

counsel intentionally caused the trial court to err, the appellant cannot be heard to

complain on appeal. . . . [I]t also must be clear that counsel acted for tactical reasons and

not out of ignorance or mistake.' " (People v. Coffman and Marlow (2004) 34 Cal.4th 1,


                                              10
49.) However, "[i]n cases involving an action affirmatively taken by defense counsel,"

courts "have found a clearly implied tactical purpose to be sufficient to invoke the invited

error rule." (Ibid.) Here, defense counsel clearly took the affirmative action of

requesting that the trial court instruct the jury on mutual combat and never withdrew the

request. Accordingly, under the doctrine of invited error, Martinez has forfeited the

contention that insufficient evidence supported the giving of a jury instruction on mutual

combat. (See People v. Jackson (1996) 13 Cal.4th 1164, 1225 [defendant waived his

appellate argument that insufficient evidence supported a jury instruction, as defendant

requested the instruction in the trial court].)

       Even were we to reach the merits of Martinez's contention, we would reject it

because the evidence does support the instruction.

       Although Martinez contends that the evidence does not show any agreement to

engage in mutual combat, such an agreement may be implied from the evidence. (People

v. Ross (2007) 155 Cal.App.4th 1033, 1046, 1047 (Ross) [mutual combat may be based

on an "express or implied" agreement to fight]; CALCRIM No. 3471 [a mutual

agreement to fight "may be expressly stated or implied"].) Here, a reasonable juror could

conclude that under a scenario in which (1) Martinez was shouting obscenities at

Castrejon and making threatening gestures, and (2) Castrejon got out of his car and

confronted Martinez in a violent manner, the two men had entered into an implied

agreement to engage in mutual combat to settle their differences. Specifically, Castrejon

testified that when Martinez walked back to confront him, Martinez said, "You want

problems, you son of a bitch," and following that statement Castrejon got out of the car.

                                                  11
A reasonable juror could conclude that Martinez's specific words, coupled with

Castrejon's act of getting out of the car, indicated an implied agreement between the two

men that they would fight each other. Indeed, as both Castrejon and Christina testified,

the two men started throwing punches at each other as soon as they were standing face-

to-face.

       Sufficient evidence supports the instruction for a second reason. CALCRIM

No. 3471, as given by the trial court, applies in two distinct circumstances: (1) where the

defendant "engages in mutual combat"; and (2) where a defendant "starts a fight." Here,

the evidence supports the instruction because there is sufficient evidence to support a

finding that Martinez started the fight, regardless of whether the evidence supports a

finding of mutual combat. Specifically, Christina testified that she saw Martinez punch

through the open half of the driver's side window and make contact with Castrejon at

least two times. Martinez's conduct can reasonably be understood as starting a fight as

the initial aggressor.

       3.     The Instruction Did Not Misstate the Law

       Finally, Martinez contends that CALCRIM No. 3471 misstates the law regarding

self-defense in the context of mutual combat.2 Although Martinez did not argue in the

trial court that CALCRIM No. 3471 reflects an incorrect statement of the law, such an

argument is not forfeited on appeal by failing to raise it below. (People v. Hudson (2006)

38 Cal.4th 1002, 1012 [forfeiture rule "does not apply when . . . the trial court gives an


2      The trial court's instruction followed the text of CALCRIM No. 3471, without
substantive change.
                                             12
instruction that is an incorrect statement of the law"].) Accordingly, we will consider

Martinez's argument. "The independent or de novo standard of review is applicable in

assessing whether instructions correctly state the law." (People v. Posey (2004) 32

Cal.4th 193, 218.)

       According to Martinez, CALCRIM No. 3471 misstates the law because, under

controlling law, the agreement to engage in mutual combat must be reached before the

initiation of hostilities. Accordingly, Martinez argues that two flaws are present in

CALCRIM No. 3471: (1) instead of stating that the agreement to engage in mutual

combat must precede the initiation of hostilities, the instruction incorrectly states that

such an agreement may also consist of an agreement to continue an already-ongoing

fight; and (2) instead of stating that the agreement to engage in mutual combat must

precede the initiation of hostilities, the instruction states that the agreement to engage in

mutual combat "must occur 'before the claim to self-defense arose.' "

       As authority for his argument, Martinez relies solely on Ross. At the time Ross

was decided, the applicable jury instruction on self-defense in circumstances of mutual

combat did not define the term "mutual combat." (Ross, supra, 155 Cal.App.4th at

p. 1043.) Ross therefore considered the "meaning of 'mutual combat' as that phrase is

used in this state's law of self-defense." (Ibid.) CALCRIM No. 3471 specifically cites to

Ross as support for its definition of mutual combat. (Judicial Council of Cal. Crim. Jury.

Instns. (2016) CALCRIM No. 3471, Authority, p. 984.)

       Summarizing existing case law at the outset of its analysis, Ross explained that

"[o]ld but intact case law confirms that as used in this state's law of self-defense, 'mutual

                                              13
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.) Ross then fleshed out this initial statement by engaging in an

extensive review of the case law.

       Ross began its review of the case law by observing that in the "lead case" of

People v. Fowler (1918) 178 Cal. 657, our Supreme Court stated that " 'the phrase

"mutual combat" has been in general use to designate the branch of the law of self-

defense relating to homicides committed in the course of a duel or other fight begun or

continued by mutual consent or agreement, express or implied.' " (Ross, supra, 155

Cal.App.4th at p. 1045, quoting Fowler, at p. 671, italics modified from original.) Ross

then synthesized its review by arriving at the following summary of the law: "We are

satisfied that 'mutual combat' consists of fighting by mutual intention or consent, as most

clearly reflected in an express or implied agreement to fight. The agreement need not

have all the characteristics of a legally binding contract; indeed, it necessarily lacks at

least one such characteristic: a lawful object. But there must be evidence from which the

jury could reasonably find that both combatants actually consented or intended to fight

before the claimed occasion for self-defense arose." (Id. at pp. 1046-1047, italics

modified from original.)3



3       Similarly, in a footnote, Ross explains that the "common intention or desire [to
fight] must precede the first assaultive conduct, or at least the first conduct sufficient to
trigger a right of self-defense in its target." (Ross, supra, 155 Cal.App.4th at p. 1045,
fn. 14, italics added.)

                                              14
       In arguing that CALCRIM No. 3471 is flawed because Ross requires that the

agreement to engage in mutual combat must occur before the initiation of hostilities,

rather than as an agreement to continue a fight or as an agreement made before the right

to self-defense arises, Martinez incorrectly takes a single statement in Ross out of

context. Although, as we have described, Ross initially summarizes the "[o]ld but intact"

case law by stating that mutual combat must be "pursuant to mutual intention, consent, or

agreement preceding the initiation of hostilities" (Ross, supra, 155 Cal.App.4th at

p. 1045, italics modified from original), the subsequent discussion in Ross, which we

have quoted above, expands on this statement and makes clear both that (1) mutual

combat includes an agreement to continue a fight, and (2) there need only be evidence

that both combatants consented or intended to fight before the occasion for self-defense

arose. (Id. at pp. 1045, 1047.)4 Therefore, we find no merit to Martinez's argument that

CALCRIM No. 3471 is inconsistent with the law as stated in Ross.

       In his reply brief, Martinez appears to make a third challenge to CALCRIM

No. 3471, in which he argues that the instruction is misleading because it does not require

the jury to determine whether the parties agreed to engage in mutual combat. Martinez


4      Martinez claims that Ross cannot have intended to define mutual combat to
include an agreement to continue a fight because that would create a risk that a
defendant's conduct of fighting back in self-defense "may become mutual combat simply
because the person exercising his self-defense right 'continues' the fight by fighting
back." We disagree. Because both Ross and CALCRIM No. 3471 also specify that an
agreement to engage in mutual combat can only come about before the right to self-
defense arises, there is no risk that a defendant will be precluded from claiming self-
defense in the event that he continues to fight simply to defend himself from imminent
bodily injury.

                                             15
contends that the instruction improperly permits the jury to simply assume there was such

an agreement. Specifically, Martinez argues, "CALCRIM No. 3471 . . . did not instruct

the jury that it must first find [Martinez] and Castrejon mutually agreed to fight" and did

not "make clear that there must be proof of an agreement to fight." Looking to the text of

the instruction, we reject the argument.5

       CALCRIM No. 3471 states that "[a] person who engages in mutual combat" must

meet the three requirements set forth in the instruction to claim self-defense. The

instruction then gives the jury a definition of mutual combat so that it may determine

whether the instruction applies: "A fight is mutual combat when it began or continued by

mutual consent or agreement." In light of this language, it is clear that the instruction is

calling upon the jury to make a determination of whether there was an agreement to

engage in mutual combat, and we perceive no reasonable likelihood that the instruction

would be interpreted in the manner identified by Martinez, under which the jury is

allowed to assume that an agreement existed. (Cross, supra, 45 Cal.4th at pp. 67-68

[defendant must demonstrate a reasonable likelihood that the jury instruction was

understood as he interprets it].)

       In sum, we reject Martinez's argument that CALCRIM No. 3471 contains

incorrect or misleading statements of law.




5      Although we may elect not to address an argument made for the first time in a
reply brief (People v. Zamudio (2008) 43 Cal.4th 327, 353), in this instance we exercise
our discretion to do so.
                                             16
                                 DISPOSITION

     The judgment is affirmed.



                                               IRION, J.

WE CONCUR:




MCCONNELL, P. J.




BENKE, J.




                                     17
