P. v. Alsharifi

Filed 8/1/08 P. v. Alsharifi CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William J. McGrath, Judge. Affirmed.

Ali Alsharifi was convicted of assault with a deadly weapon and vandalism. Alsharifi was sentenced to a prison term of three years. He appeals, arguing the trial court erred in instructing in the terms of CALCRIM No. 3472 that a claim of self-defense may not be contrived.^[1]

FACTS

A. Prosecution Case

On the morning of December 3, 2006, 18-year-old Victoria Hawkins was at home asleep. Appellant, a family friend, came into her room and kissed her on the cheek. She told him to leave. He returned later and kissed her on the lips. Hawkins told her boyfriend Adam Moore what had happened. He told her to call the police.

That same evening Hawkins and Moore were driving in El Cajon and saw appellant's van. Moore drove alongside the van and asked appellant to pull over. Appellant sped away. Moore followed. Appellant pulled into a parking lot and stopped. Moore parked nearby, got out of his car, walked up to appellant's van and asked appellant what he was doing in Hawkins's house. Appellant was not armed and had nothing in his hands that could be construed as a weapon. Appellant did not respond but went into the back of his van. As Moore continued to ask why appellant was at Hawkins's house, appellant got out of the van and struck Moore twice with a heavy chain. Moore ran and appellant followed, swinging the chain at him. As Moore got in his car and started to drive off, his rear window was shattered. Moore called the police.

A police officer who responded to the scene believed the injuries suffered by Moore were serious enough to require medical attention, but Moore declined to seek such help.

B. Defense Case

Appellant testified that on the night of the incident Moore made a U-turn and began following him. As the vehicles neared each other, Moore spat at him. Appellant was frightened. Moore pulled up next to appellant at a stoplight and yelled at him. Moore pulled into a parking lot and stopped. Thinking he would be safer in a location where there were witnesses, appellant did not get out of his van.

Moore, however, parked, got out of his car and approached appellant. Moore had a phone or keys in his hand. Moore opened the driver's door of the van, put one foot inside and began talking to appellant in English. Appellant, whose English is limited, did not understand what Moore was saying but did remember the words "fuck you." Appellant reached back and grabbed a chain, thinking it would scare Moore. The men struggled over the chain. Moore pulled so hard on it that appellant lost his grip, and the chain hit the window on Moore's vehicle. Appellant denied hitting Moore with the chain.

DISCUSSION

Appellant argues the trial court erred in instructing in the terms of CALCRIM No. 3472−"Right to Self-Defense: May Not Be Contrived"−that "A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force." Appellant argues there was no evidence he intended to provoke a confrontation in order to justify his own violent response. Appellant contends the error was prejudicial because the jury might have understood the instruction to mean that he lost his right to self-defense when he accosted Moore's girlfriend hours before the incident, i.e., appellant could not claim self-defense because he was the first wrongdoer in the chain of events that led to the assault.

A. Background

As part of its set of instructions concerning self-defense, the trial court, without objection, instructed the jury in the terms of CALCRIM No. 3472 that the defense of self-defense does not apply when the defendant has provoked a fight or quarrel with the intent to create an excuse for the use of force.

The case was relatively straightforward. The prosecution offered evidence that Moore, perhaps angry but unarmed, approached appellant's van. Without provocation, appellant got out of the van and struck Moore twice with a chain. As Moore retreated, appellant tried to hit him again, and as Moore drove off, appellant broke the rear window of Moore's van.

The defense case was based on appellant's claim that Moore's actions the night of the incident were provocative and threatening. Moore not only approached appellant's van but opened the door and placed his foot inside. Appellant, fearful that appellant would assault him, picked up the chain to dissuade Moore from further action. A struggle occurred. Moore grabbed the chain, appellant lost control of it and it hit the window of Moore's car. Appellant claimed he did not strike Moore.

During argument, the prosecutor commented on the various self-defense instructions and how they related to the evidence. With regard to CALCRIM No. 3472, the prosecutor first repeated the instruction. She then told the jury that in the ordinary case the instruction meant that one person could not hit another person and when his victim responded with force contend that his further assault was in self-defense.

The prosecutor then rhetorically asked how the instruction applied to the particular facts in this case. The prosecutor stated that it did not apply in its traditional form, i.e., appellant did not provoke a quarrel or a fight to create an excuse to use force and then claim self-defense. The prosecutor stated, however, that the instruction had "some relevance." She noted appellant's testimony that Moore opened the door of appellant's van and put his foot inside, that fearing for his safety, appellant reached for the chain, Moore, seeing what appellant was doing, also reached for the chain and they struggled over it. The prosecutor told the jurors that even if they believed appellant's testimony, Moore could not be the aggressor. The prosecutor asserted that if it was after the struggle for the chain that appellant hit Moore, then appellant's claim of self-defense was contrived and could not be a basis for finding appellant not guilty.

The prosecutor did not mention during argument appellant's entry into Hawkins's bedroom the morning of the incident and did not relate that event to any instruction concerning self-defense. Defense counsel made only a fleeting reference to the Hawkins incident and did not relate it to the issue of self-defense.

B. Law

CALCRIM No. 3472 is based on a series of cases beginning with People v. Hinshaw (1924) 194 Cal. 1, 26, in which the court stated that "'self-defense is not available as a plea to a defendant who has sought a quarrel with the design to force a deadly issue and thus, through his fraud, contrivance or fault, to create a real or apparent necessity for making a felonious assault.'"

In In re Christian S. (1994) 7 Cal.4th 768, 773, footnote 1, the court stated: "It is well established that the ordinary self-defense doctrine . . . may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary's attack or pursuit is legally justified. (See generally, 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Defenses, 245, p. 280; 2 Robinson, Criminal Law Defenses (1984) 131(b)(2), pp. 74-75.)"

The wrongful conduct sufficient to deny a defendant the right of self-defense need not be a physical assault but can arise from the creation by the defendant of "an atmosphere of antagonism that might naturally lead to physical combat if . . . continued." (People v. Holt (1944) 25 Cal.2d 59, 65-67; see also People v. Hill (2005) 131 Cal.App.4th 1089, 1102.)

C. Analysis

Appellant argues the giving of CALCRIM No. 3472 was error because, while a correct statement of the law, there was no evidence making it relevant to appellant's claim of self-defense. (See generally People v. Satchell (1971) 6 Cal.3d 28, 33, fn. 10.) Appellant contends that giving the instruction was prejudicial because the jury might have concluded appellant was not entitled to claim self-defense given that his entry into Hawkins's bedroom and kissing her rendered him a "first wrongdoer."

We do not know why the prosecutor wanted the jury instructed in the terms of CALCRIM No. 3472 and why the trial court gave the instruction. There was no evidence appellant's entry into Hawkins's bedroom was a clever ploy designed to force Moore into a violent reaction so that appellant, hours later, could, with impunity, beat him with a chain.

CALCRIM No. 3472 is short and simple. A defendant cannot claim self-defense if he provokes a person into an attack as an excuse to assault that person. The evidence in this case shows no such intent; the prosecutor did not claim that it did. The prosecutor told the jury there was no "provocation of the fight or quarrel or with intent . . . to use force . . . in a traditional sense." Essentially, the prosecutor was telling the jury the instruction did not apply to this case and certainly did not apply to anything appellant had done earlier in the day.^[2]

The prosecutor explained to the jury she believed the instruction related to appellant reaching for the chain. The prosecutor's point was that appellant, not Moore, was the aggressor, and appellant, therefore, could not claim self-defense.

Initially, we note appellant did not object to the giving of CALCRIM 3472. As a general rule, he cannot object now for the first time without showing he has lost a substantial right. (People v.Dennis (1998) 17 Cal.4th 468, 514; People v. Olguin (1994) 31 Cal.App.4th 1355, 1381; People v. Franco (1994) 24 Cal.App.4th 1528, 1538.) He cannot make such a showing here, where he did not lose the right to argue he acted in self-defense and where the jury was instructed on the general law of self-defense.

Even assuming it was error to give CALJIC No. 3472, any error was harmless by any standard. In People v. Olguin,supra, 31 Cal.App.4th at pages 1381-1382, the defendant argued there was no evidence to support the giving of CAL.JIC No. 5.55,^[3]a predecessor to CALCRIM No. 3472. The court agreed. However, it found the giving of the instruction harmless error. It noted that there was no objection to the instruction, and in any event the instruction had no bearing on the outcome of the trial inasmuch as it was one in a package of self-defense instructions, some of which were mutually exclusive. Moreover, the jury was further instructed that not all instructions might apply to the case. There was no evidence the jury was confused or failed in its task to determine which instructions applied. The court likewise rejected defendant's argument that the instruction kept the jury from evaluating his self-defense claim. It noted that the instruction was irrelevant and there was nothing to suggest the jury was sidetracked from using only the relevant instructions. (People v. Olguin,supra, 31 Cal.App.4th at p. 1381; see also People v. Crandell (1988) 46 Cal.3d 833, 872-873.) We reach the same conclusion. There was no objection to the instruction, which was irrelevant to the facts of the case. The jury was instructed that not all instructions might apply, and we may assume it disregarded what was irrelevant. Further, the instruction was one of a package of self-defense instructions, and defense counsel argued self-defense applied.

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

McINTYRE, J.

AARON, J.

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^[1] Alsharifi also argues, and the Attorney General agrees, that his conduct credits were miscalculated by the trial court. The parties inform us that the error has been corrected and the abstract of judgment amended. We, therefore, do not address the issue.

^[2] The concept that one who is the first to use physical force cannot claim self-defense is covered by CALCRIM No. 3471, an instruction not given in this case.

^[3] CALJIC No. 5.55 provided: "The right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense."