Filed 12/23/14 P. v. Valdez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048627

         v.                                                            (Super. Ct. No. 11NF2871)

ALBERT VALDEZ,                                                         OPINION

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, Sheila F.
Hanson, Judge. Reversed.
                   Helen S. Irza, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and
William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *                  *                  *
              A jury convicted Albert Valdez of attempted voluntary manslaughter (Pen.
Code, §§ 664; 192, subd. (a); all further references are to this code), firearm possession
by a felon (§ 12021, subd. (a)), and active participation in a criminal street gang
(§ 186.22, subd. (a) [street terrorism]). The jury found several penalty enhancements
applied, including that Valdez committed the manslaughter and firearm possession
offenses for the benefit or in association with a criminal street gang (§ 186.22, subd. (b))
and that he personally used (§ 12022.5, subd. (a)) and intentionally discharged a firearm
causing great bodily injury (§ 12022.53, subds. (c), (d)). Valdez correctly argues the trial
court erroneously failed to instruct the jury that a mutual combatant or original aggressor
has a revived right of self-defense when his adversaries suddenly escalate a nondeadly
confrontation to deadly proportions. (People v. Quach (2004) 116 Cal.App.4th 294
(Quach).) The error requires reversal, and we therefore do not reach Valdez’s sentencing
claim the trial court erred in imposing the lesser enhanced penalty for his commission of
a “serious” gang-related felony to avoid the bar on the firearm use enhancement when the
court imposes an enhanced sentence for a “violent” gang-related felony. (See People v.
Rodriguez (2009) 47 Cal.4th 501.) Given the reversal, we also do not reach Valdez’s
claim that section 654 bars his enhanced sentence for firearm possession by a felon.
                                              I
                   FACTUAL AND PROCEDURAL BACKGROUND
              On a late September evening in 2011, around 10:00 p.m., several teenage
males, including the victim, 19-year-old Itzcoatl Yniguez, and Anselmo Garcia,
conversed in Garcia’s front yard on Penmar Avenue in La Habra. A black Honda Accord
drove slowly past the residence and one of the occupants rolled down a window and
displayed a handsign of the All West Coast (AWC) criminal street gang, which Garcia
and his friends recognized as a challenge to fight. Garcia and at least one of his
companions belonged to AWC’s rival, the Monos criminal street gang.



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              Shortly after the Honda drove by, Garcia saw a group of four males
walking from a nearby intersection toward his home. Garcia’s group, including the
victim, stepped out into the street and began walking toward the advancing party, but
before they met, several gun shots rang out. No one in Garcia’s group had seen a gun
displayed. Garcia admitted at least one person in his party carried a stick or pole. On
hearing the shots, Yniguez turned to flee but was felled by a shot that traveled through his
chest and back; he felt his legs go numb, but made it back to Garcia’s house. Garcia had
dropped to the street when he heard the shots, then ran to the limping Yniguez. In
piercing Yniguez’s torso, the bullet perforated his diaphragm, stomach, spleen, and one
lung. A second bullet had hit him in the buttocks and fractured his hip. He remained in
the hospital more than two weeks.
              Police apprehended Valdez after he fled a vehicle stop the next day. He
admitted to investigators he fired the shots in the confrontation the night before between
the Monos and AWC gangs. He also admitted he had been an AWC gang member since
he was “a kid,” but claimed he recently had been in trouble with the gang for not
associating with them. According to Valdez, he had been drinking at home on the night
of the shooting when several AWC members came by to demand he accompany them.
When the car stopped after the initial drive-by of Garcia’s home, one of Valdez’s cohort
warned him not to be “a bitch” and to “back us up.” Suddenly, someone handed him a
gun as a test of sorts because “I don’t come around” the gang anymore, and warned him
again “not be be a bitch, [to] back ‘em up” as Garcia’s group approached.
              In a colloquy with the interviewing officer, Valdez described the
confrontation: “Ofcr: They came to you? They were walking towards you? [¶] Valdez:
They ran. [¶] . . . [¶] They had, uh, bats. [¶] Ofcr: Okay. [¶] Valdez: Poles. [¶] Ofcr:
Okay. [¶] And rocks. [¶] Ofcr: Okay. [¶] Valdez: And . . . [¶] Ofcr: How many of
them were there? [¶] Valdez: Like 15. [¶] . . . [¶] Ofcr: Okay. So, about 20, 25 yards
away, they’re coming at you with . . . one of them . . . you said one them [has] got a bat

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or something. [¶] Valdez: They all did. [¶] Ofcr: They all had bats? [¶] Valdez: And
poles. [¶] . . . [¶] Ofcr: You heard them shout ‘Monos’? They were running at you.
They passed the gun to you, go ahead? [¶] Valdez: They gave it to me and *** I’m
gonna get fucked up. [¶] Ofcr: Okay. [¶] Valdez: And just, I thought I was gonna get
killed. [¶] Ofcr: Okay. [¶] Valdez: ‘Cause there was like 15 people just chasing us.”
              Valdez did not testify at trial. The jury rejected the attempted murder
charge based on Yniguez’s injuries, and instead convicted Valdez as noted. The trial
court sentenced Valdez to 20 years six months in prison, consisting of the upper term of
5 years and six months for attempted voluntary manslaughter, and consecutive five-year
and 10-year terms, respectively, for the gang enhancement and firearm enhancement.
                                             II
                                      DISCUSSION
              As this court explained in Quach, supra, 116 Cal.App.4th at p. 301, the
Penal Code provides that while an initial aggressor or a person who has chosen to engage
in mutual combat ordinarily forfeits his or her right to assert self-defense as an answer to
criminal charges, a “good faith” exception restores the right when certain criteria are met.
(§ 197.) The statute states the defendant must “really and in good faith . . . endeavor[] to
decline any further struggle before the homicide was committed” (ibid.), which Quach
noted has “transmogrified” in standard jury instructions to a three-part requirement that
the defendant: one, “actually and in good faith tried to stop fighting,” two, “indicated by
word or by conduct to his opponent . . . that he wanted to stop fighting and that he had
stopped fighting,” and three, “gave his opponent a chance to stop fighting.” (CALCRIM
No. 3471; Quach, supra, 116 Cal.App.4th at p. 301 [discussing same requirements in
former CALJIC No. 5.56.) Based on the evidence AWC’s initial drive-by prompted the
later street confrontation between Valdez’s group and Garcia’s, the trial court instructed
the jury with CALCRIM No. 3471 on mutual combat and the qualified right to regain a
viable self-defense claim.

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              Quach explained that the qualifications on regaining the right are
themselves qualified by necessity when the original victim or mutual combatant in a
nondeadly fray responds in a manner “‘so sudden and perilous’” that the defendant
cannot safely pause to meet the three-part test without endangering his life. (Quach,
supra, 116 Cal.App.4th at pp. 301-303, italics added.) Thus, “[w]here the counter assault
is so sudden and perilous that no opportunity be given to decline further to fight and he
cannot retreat with safety he is justified in slaying in self-defense.’” (Id. at p. 303,
quoting People v. Gleghorn (1987) 193 Cal.App.3d 196, 201.) After Quach, this
qualification is now correctly embodied in CALCRIM No. 3471, as follows: “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/herself) with deadly force and was not
required to stop fighting [, or] communicate the desire to stop to the opponent] [, or give
the opponent a chance to stop fighting].” (Second brackets in original.) Valdez
complains the trial court here erroneously omitted the Quach instruction, and he is
correct.
              The Attorney General does not dispute the trial court’s sua sponte
obligation to instruct the jury on the principles of law closely connected to the facts of the
case, including defenses supported by substantial evidence and not inconsistent with the
defendant’s case theory. (People v. Quintero (2006) 135 Cal.App.4th 1152, 1165.) Here,
Valdez asserted self-defense but, as in Quach, was hamstrung by the court’s instruction
“to argue to the jury that a mutual combatant could exercise self-defense [only] if he first
withdrew from the fight and informed his opponent of this fact.” (Quach, supra,
116 Cal.App.4th at p. 303.) As in Quach, “[t]his was not the defense he was entitled to
offer.” (Ibid.)
              The Attorney General suggests no evidence supported an instruction based
on Quach for two reasons. First, the Attorney General appears to argue a fight has not

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commenced until the parties have inflicted blows on each other and therefore, until that
moment, there is no initial aggression or mutual combat for the original victim to
escalate. As she phrases it, “Since there was no evidence of a fight of any kind when
appellant used deadly force, there was no substantial evidence supporting the optional
paragraph.” But an assault is by definition different than battery and therefore does not
require physical contact before the factfinder may conclude the confrontation has begun,
triggering the right of self-defense. (See, e.g., People v. Tran (1996) 47 Cal.App.4th 253,
261 [pursuit while brandishing a deadly weapon constitutes assault with a deadly
weapon]; People v. Reese (1944) 65 Cal.App.2d 329, 338, 341-345 [no duty-to-withdraw
instruction required where the deceased “advanced in a threatening manner, holding a
pipe over his shoulder and cursing the defendant and threatening injury”].) The Attorney
General’s argument is therefore misplaced.
               Second, the Attorney General argues Valdez was “not in a position in
which he had no opportunity to decline or withdraw” because “he described the victim’s
group as being 20 to 25 yards down the street when he fired at them.” In other words, the
Attorney General asserts this distance would require a factfinder as a matter of law to
conclude Valdez had the opportunity to withdraw safely, and therefore the Quach
instruction did not apply.
               As noted in Quach, however, it is not our province to decide the underlying
facts. (Quach, supra, 116 Cal.App.4th at p. 302.) Here, it was for the jury to decide
whether to credit Valdez’s statements to the police and, if so, whether 15 adversaries
armed with poles, bats, rocks, and bricks running from across the street at Valdez and his
three companions afforded him the opportunity to safely abandon the confrontation and
communicate an intent to do so. Valdez suggests on appeal the distance separating the
two factions could be closed in a scant four or five seconds, but this too was for the jury
to evaluate.



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              It was also for the jury to decide whether the victims’ statements that the
gunshots came like “fire” without warning supported Valdez’s claim he was abruptly
handed the gun and that he and his cohort did not display or brandish the weapon or
otherwise prompt the victims to escalate the imminent fight by charging with weapons
drawn. The error was not harmless because, as in Quach, nothing in the trial court’s
other instructions enabled the jury to “cobble together a correct statement of the law
regarding sudden and perilous counter assault.” (Id. at p. 303.) When the trial court fails
to instruct the jury on the applicable law, the appropriate test is whether the error is
harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24;
Quach, at p. 303.) We cannot say beyond a reasonable doubt that the trial court’s failure
to instruct the jury under Quach on a mutual combatant’s potentially revived right of self-
defense was harmless.
                                              III
                                       DISPOSITION
              The judgment is reversed.




                                                    ARONSON, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.




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