Filed 8/26/26 P. v. Barney CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B342175
Plaintiff and Respondent, (Los Angeles County Super.
Ct. No. TA155861)
v.
LARRY BARNEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, John Lonergan, Jr., Judge. Affirmed.
Monique Hemli-Munoz, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill, and David F. Glassman, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________
Larry Barney appeals from the judgment of conviction after
a jury found him guilty of assault with a firearm. Barney
contends the trial court prejudicially erred in giving an
instruction to the jury on the mutual combat and initial
aggressor limitations to the defense of self-defense without
sufficient evidence to warrant the instruction. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Charges
The People charged Barney with one count of assault with
a firearm (Pen. Code, § 245, subd. (a)(2)) and alleged that, in
committing the offense, he personally inflicted great bodily injury
(id., § 12022.7, subd. (a)) and personally used a firearm (id.,
§ 12022.5, subd. (a)).
B. The Prosecution Evidence
In October 2021 Barney was living at the home of his
girlfriend, Novella Allen, and her 18- and 16-year-old daughters.
The older daughter’s boyfriend, Fernando Chavez, also stayed in
the home sometimes. At the time, Barney and Allen’s
relationship was “on the rocks.” Barney had recently pushed and
choked Allen, an incident Allen’s older daughter witnessed and
reported to Chavez. Thereafter, Barney and Allen did not sleep
in the same room, but Allen allowed Barney to sleep in the home
“to keep the peace.”
Barney became upset one morning that Allen was taking
too long to come home when he wanted to use her car. When
Allen returned, he grabbed her car keys from a lanyard around
her neck and left in her car despite her protests. Allen reported
the car as stolen. The police arrived and told her she could seek a
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restraining order but that there was nothing they could do
because it was a “civil matter.”
A few minutes after the police left, Barney returned and
was upset Allen had called the police on him. Barney again
snatched Allen’s keys from around her neck and left in her car
without her permission. Allen used a baseball bat to smash a
window on Barney’s car that was in her driveway but had flat
tires. She called the police but was again told they could not
assist her.
Allen and her daughters started putting Barney’s
belongings on the curb. When Barney returned and saw his
belongings outside and the broken car window, he began arguing
with Allen. Allen told her daughters to go inside the house and
lock the door. Barney offered to leave if he could go inside and
retrieve the rest of his belongings. Allen agreed.
Barney struggled to open the front door. Chavez, who was
inside the house, heard Barney and Allen’s argument and
banging on metal bars outside a bedroom window, which led him
to assume the argument had gotten physical. Chavez saw Allen’s
daughters holding the front door closed from inside the house.
He also heard banging on the door and Barney saying he wanted
to be let in.
Chavez opened the door to confront Barney. He pushed
Barney in the chest hard enough to make Barney move back and
told him “we don’t want you here.” Barney responded by
punching Chavez in the eye. The two men exchanged punches for
30 to 40 seconds before Chavez pinned Barney against the
outside of the house. Chavez testified he was taller and heavier
than Barney but not stronger. He stated that, before this point,
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there was bad blood between them and they exchanged threats,
but things had never become physical.
While Chavez had Barney pinned for a “minute or so,” he
told Barney to stop and that he did not want to fight him. He
further told Barney he needed to leave. Barney spat in Chavez’s
face and called him a “bitch,” which made Chavez angry. The
fighting restarted, with both men throwing punches, and moved
into the living room, with Allen and her daughters present. Allen
eventually broke up the fight and told everyone but Barney to go
outside so he could retrieve his belongings.
Barney was bleeding heavily from his forehead and went
into the bedroom he had been staying in. Everyone went outside
except for Chavez, who followed Barney because he was worried
Barney was going to trash the house or mess with Chavez’s
bicycles that were inside. As Chavez followed Barney, he was
telling Barney it was time for him to leave and to get out, and
that no one liked him or wanted him there. When Barney
entered the bedroom, Chavez stopped in the doorway. Chavez
saw Barney reach for an object he believed to be a gun. As
Barney started to raise the object so it was pointing at Chavez,
Chavez tried to hit Barney’s hand. Chavez “heard a loud pop,”
“felt a light breeze in between [his] sweats,” and “smelled
something burning.” At the time, Chavez did not know if he had
been shot and went to the bathroom to hide. Barney looked
inside the bathroom, but not seeing Chavez, he walked toward
the living room.
Allen heard the gunshot and entered the house. She saw
Barney walking around holding a gun at his side. She believed
he was looking for Chavez.
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After he heard Allen enter the house, Chavez left the
bathroom and hit Barney from behind in the back and neck
attempting to disarm him. The two men fought for the gun,
which went off again. Allen saw this second shot hit Chavez in
the thigh. Chavez, Allen, and Barney continued to struggle for
the gun in Barney’s hand. During the struggle, two or three more
shots were fired.
Allen and Chavez eventually restrained Barney and
brought him to the floor. Allen got on top of Barney and told
Chavez to go outside. After exiting the house, Chavez realized he
had been shot in his groin. Shortly after Allen went outside to
assist Chavez, Barney exited the house, ran to his bicycle, and
pedaled away from the scene. Barney did not appear to have
been shot or to be in pain.
C. The Defense Evidence
Barney testified at trial. On the day of the incident, he was
struggling to open the front door of Allen’s house to get his
belongings and leave after Allen demanded he do so. The door
flew open, and Chavez immediately punched him four times in
the face. Due to Chavez being so close to him, Barney was only
able to land “little baby punches” on Chavez. Barney was also
being punched and hit with a “giant mallet” by Allen’s daughters.
Chavez put Barney into a chokehold, and the ensuing struggle
moved everyone into the living room. Allen then told everyone to
go outside so Barney could get his belongings.
Chavez followed Barney into the bedroom, telling him to
leave and calling him names. Barney saw Chavez holding a gun
and reached for it. The gun went off, and Barney felt a “lightning
bolt” go through his foot and knew he had been shot. The shot hit
his foot near his ankle.
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Barney struggled with Chavez for control of the gun.
Barney fired the gun while trying to wrestle it from Chavez.
“The second shot somehow I got my finger on the trigger and I
just ... I knew it wasn’t pointing at me so I shot.” At that point,
Barney gained control of the gun, and Chavez exited the house,
appearing injured. Barney gathered his belongings, threw the
gun in the kitchen trash, and left the area on his bicycle.
A photograph purporting to depict the wound to Barney’s
ankle was admitted into evidence. Barney did not go to the
hospital because the wound was not bleeding and it did not hurt;
“it just tingled.”
D. Applicable Jury Instructions, Closing Arguments, and the
Jury’s Question
The trial court instructed the jury with CALCRIM No. 3470
on the right to self-defense. The court thus instructed the jury
that Barney acted in lawful self-defense if he reasonably believed
that he was in imminent danger of suffering bodily injury,
reasonably believed that the immediate use of force was
necessary to defend against that danger, and used no more force
than was reasonably necessary to defend against that danger.
The court, over Barney’s objection, also granted the
People’s request to instruct the jury with CALCRIM No. 3471
(“Right to Self-Defense; Mutual Combat or Initial Aggressor”).
That instruction provides: “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 tries to stop fighting; [¶] 2. He
indicates, by word or by conduct, to his opponent, in a way that a
reasonable person would understand, that he wants to stop
fighting and that he has stopped fighting; [¶] AND [¶] 3. He gives
his opponent a chance to stop fighting. [¶] If a person meets these
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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,
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.” The court
determined the instruction should be given because it was
“within the realm of the evidence that it can be argued whether
or not Mr. Barney actually started the fight” or that there was
mutual combat.
The trial court further instructed the jury with CALCRIM
No. 200 that “[s]ome of these instructions may not apply
depending on your findings about the facts of the case” and that
the jury should first decide what the facts were and then “follow
the instructions that do apply to the facts as you find them.”
During their closing arguments, both sides focused on
whether Barney acted in self-defense. The prosecution argued
Barney did not act in lawful self-defense because the fistfight
between him and Chavez had ended by the time Barney went
inside the house to retrieve his belongings; further, Barney used
more force that was reasonably necessary to defend himself
against Chavez’s punches when he retrieved the gun and shot at
Chavez. The defense theory was that Chavez was the one who
retrieved the gun and the one who shot Barney first, justifying
Barney in defending himself with deadly force.
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During its deliberations the jury requested and was
provided the testimony of both Barney and Chavez regarding the
“beginning/start of the altercation involving the firearm.”
E. Verdict and Sentence
The jury found Barney guilty of assault with a firearm and
found true the great bodily injury and firearm allegations. In a
bifurcated court trial, the court found true several aggravating
factors (Cal. Rules of Court, rule 4.421(a)(1), (a)(2), (b)(1), (b)(2),
(b)(3)). The court sentenced Barney to 17 years based on the
upper term of four years, plus 10 years (the upper term) for the
firearm enhancement and three years for the great bodily injury
enhancement.
Barney timely appealed.
DISCUSSION
Barney argues the trial court prejudicially erred by
instructing the jury with CALCRIM No. 3471, which describes
limitations to the defense of self-defense where the defendant
was the initial aggressor or there was mutual combat between
the defendant and the victim. Barney contends no evidence
suggested he was the initial aggressor, given Chavez initiated the
first physical confrontation, and there was no express or implied
agreement to engage in mutual combat with Chavez.
“ ‘It is error to give an instruction [that], while correctly
stating a principle of law, has no application to the facts of the
case.’ ” (People v. Debose (2014) 59 Cal.4th 177, 205.) “ ‘A trial
court must give a requested instruction only if it is supported by
substantial evidence, that is, evidence sufficient to deserve jury
consideration.’ ” (People v. Leon (2020) 8 Cal.5th 831, 848.) We
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review the trial court’s decision to give a particular instruction de
novo. (People v. Cole (2004) 33 Cal.4th 1158, 1206.)
In this context, “mutual combat” is not merely a reciprocal
exchange of blows but rather a fight that is “ ‘ “begun or
continued by mutual consent or agreement, express or
implied.” ’ ” (People v. Nguyen (2015) 61 Cal.4th 1015, 1050,
italics omitted (Nguyen); accord, People v. Ross (2007)
155 Cal.App.4th 1033, 1045 (Ross).) “In other words, it is not
merely the combat, but the preexisting intention to engage in it,
that must be mutual.” (Nguyen, at p. 1050.) “[T]his common
intention or desire must precede the first assaultive conduct, or
at least the first conduct sufficient to trigger a right of self-
defense in its target. If A triggers such a right in B by striking
him, B does not forfeit that right merely because the blow makes
him ‘want to fight.’ Hot blood may cause him to exercise the right
unreasonably, and to that extent he will forfeit it. But his
‘want[ing] to fight’ does not make it a case of mutual combat.”
(Ross, at p. 1045, fn. 14.) An agreement to fight does not need all
the characteristics of a legally binding contract, “[b]ut 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 p. 1047.)
“Generally, if one makes a felonious assault upon another,
or has created appearances justifying the other to launch a
deadly counterattack in self-defense, the original assailant
cannot slay his adversary in self-defense unless he has first, in
good faith, declined further combat, and has fairly notified him
that he has abandoned the affray. [Citation.] However, when the
victim of simple assault responds in a sudden and deadly
counterassault the original aggressor need not attempt to
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withdraw and may use reasonably necessary force in self-
defense.” (People v. Gleghorn (1987) 193 Cal.App.3d 196, 201; see
People v. Trevino (1988) 200 Cal.App.3d 874, 879.)
Even assuming without deciding the trial court erred by
instructing the jury with CALCRIM No. 3471 because there was
insufficient evidence that Barney and Chavez engaged in mutual
combat or that Barney was the initial aggressor, the error was
harmless. When a court gives an instruction that correctly states
the law but has no application to the facts of the case, reversal is
required only if it is reasonably probable the result would have
been more favorable to the defendant absent the error. (People v.
Guiton (1993) 4 Cal.4th 1116, 1129-1130 (Guiton); see People v.
Watson (1956) 46 Cal.2d 818, 836; see also People v. Cross (2008)
45 Cal.4th 58, 67 [“giving an irrelevant or inapplicable
instruction is generally ‘ “only a technical error which does not
constitute ground for reversal” ’ ”].)
The trial court fully instructed the jury on the right to self-
defense with CALCRIM No. 3470, and nothing in the mutual
combat/initial aggressor instruction prevented the jury from
evaluating the evidence of Barney’s self-defense claim pursuant
to the self-defense instruction. As noted, the trial court also
instructed the jury that “[s]ome of these instructions may not
apply, depending on your findings about the facts of the case” and
that the jury should first decide what the facts were and then
“follow the instructions that do apply to the facts as you find
them.” We presume the jury followed these instructions and
ignored any inapplicable instructions. (See People v. Holloway
(2004) 33 Cal.4th 96, 152-153; see also Guiton, supra, 4 Cal.4th at
p. 1131 [“The jurors’ ‘own intelligence and expertise will save
them from’ the error of giving them ‘the option of relying upon a
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factually inadequate theory.’ ”].) Accordingly, if the jury found no
facts supporting a theory that Barney and Chavez had mutually
consented, intended, or agreed to engage in combat, or that
Barney was the initial aggressor, we presume the jury would
have simply disregarded CALCRIM No. 3471.
Barney’s reliance on Ross, supra, 155 Cal.App.4th 1033 is
unavailing. The defendant in Ross got into an argument with a
woman who eventually slapped him, and the “[d]efendant
responded with a blow that fractured her cheekbone.” (Id. at
p. 1036.) At that time, the pattern jury instruction did not define
the term “mutual combat.” (Id. at p. 1042, fn. 9.) When the
deliberating jury requested the term’s legal definition, the trial
court informed the jurors there was none and instructed them to
rely on the “common, everyday meaning of those words or that
phrase.” (Id. at pp. 1042-1043.)
The appellate court reversed for instructional error,
concluding that, without being given a definition of “mutual
combat,” the jury could have inaccurately determined the term in
this context “describe[d] any violent struggle between two or
more people, however it came into being.” (Ross, supra,
155 Cal.App.4th at p. 1044.) The court determined “the evidence
showed an exchange of belligerent comments culminating in an
impulsive and unexpected blow by [the woman] to which
defendant responded with a combination, flurry, or barrage of
blows. There is simply not enough evidence for a reasonable
juror to conclude beyond a reasonable doubt that when these
blows were exchanged, both parties had formed the intent to
engage in a fight.” (Id. at p. 1052.) As for prejudice, the court
explained, “[a] properly instructed jury would not find ‘mutual
combat’ on the present facts, and would therefore presumably
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ignore the instruction. But the jury here was not properly
instructed. It was left to suppose that the instruction might
apply to any exchange of blows. Moreover the record
affirmatively shows that jurors did not ignore the instruction.
They petitioned the court in vain to clarify it.” (Id. at pp. 1056-
1058.)
Barney argues that, just as the jury in Ross demonstrated
it was focused on the mutual combat instruction because it asked
the court for a definition, here there is evidence the jury focused
on the mutual combat instruction because it asked to rehear
testimony regarding the beginning of the incident involving the
firearm. While “the questions the jurors ask and the areas in
which they focus their deliberations can be revealing” (People v.
Carrillo (2004) 119 Cal.App.4th 94, 104), the jury’s request here
does not necessarily show the focus on mutual combat that
Barney suggests. The jury needed to consider the events during
that time period to assess his self-defense theory. Moreover,
neither party ever referenced the notion there was mutual
combat or that Barney was the initial aggressor during the trial
or in their closing arguments. (Cf. Guiton, supra, 4 Cal.4th at
p. 1129 [suggesting prejudice might be found where invalid
factual theory was presented to jury and “the district attorney
stressed only the invalid ground in the jury argument, and the
jury asked the court questions during deliberations directed
solely to the invalid ground”].)
Further, unlike in Ross, the trial court accurately
instructed the jury on the legal meaning of the term “mutual
combat.” Thus, if the jury determined there was no evidence to
support a mutual combat finding, we presume the jurors followed
the court’s direction to simply ignore that portion of its
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instructions. (See People v. Holloway, supra, 33 Cal.4th at p. 152
[“we cannot assume … that the jurors failed to follow the court’s
standard admonition … that they were to disregard any
instruction inapplicable to the facts as they found them”]; see also
People v. Forrest (2017) 7 Cal.App.5th 1074, 1083 [“In the absence
of any evidence of confusion on the part of the jury, ‘[j]urors are
presumed able to understand and correlate instructions and are
further presumed to have followed the court’s instructions.’ ”],
italics added.)
In sum, even if there was instructional error, reversal is not
necessary because it is not reasonably probable the result would
have been more favorable to Barney absent the error. (Guiton,
supra, 4 Cal.4th at p. 1130.)
DISPOSITION
The judgment is affirmed.
STONE, J.
We concur:
MARTINEZ, P. J.
FEUER, J.
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