Filed 7/6/17 P. v. Foster CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

DARREN EDWARD FOSTER,

Defendant and Appellant.
D070892



(Super. Ct. No. SCD263997)

APPEAL from a judgment of the Superior Court of San Diego County, Michael T. Smyth, Judge. Affirmed.

Siri D. Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Darren Edward Foster guilty of one count of willful infliction of corporal injury upon a spouse or cohabitant (Pen. Code, § 273.5, subd. (a)) and one count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)). As to both counts, the jury also made true findings that Foster intended to cause great bodily injury. (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) Foster admitted prior convictions, including two prior strikes (§§ 667, subds. (b)-(i), 1170.12, 668), and the trial court sentenced him to an indeterminate prison term of 25 years to life.
Foster contends that the trial court prejudicially erred by instructing with CALCRIM No. 3472 because that instruction does not accurately state the law. Specifically, Foster contends that CALCRIM No. 3472 fails to inform the jury that a defendant may justifiably use reasonable force in self-defense even after provoking a fight with the intent to create an excuse to use force if the other person unexpectedly responds to the provocation by using deadly force. We conclude that Foster's argument lacks merit, and accordingly we affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
After meeting in a homeless shelter, Foster and G.C. were in an intimate relationship and lived together in motels with G.C.'s three children. As of September 30, 2015, the couple was having relationship problems and had been separated for a few days.
Around 11:50 a.m. on September 30, 2015, Foster assaulted G.C. on the sidewalk in downtown San Diego. The events leading up to the assault were disputed at trial, but the assault itself was captured on surveillance video from a nearby apartment complex and was also witnessed by several people. As shown on the video, G.C. stood on the sidewalk next to a baby stroller, in which her young child was sitting. Foster was a significant distance away from G.C., pacing back and forth. G.C. was looking down and started to access a bag that was on top of the stroller.
Just as G.C. started to access her bag, Foster suddenly threw something at G.C., which he testified at trial was a Styrofoam cup containing water. Foster then ran over to G.C., lunged at her and tipped over the baby stroller. Foster pushed G.C. away from the stroller and started punching her in the face. By his own estimation, Foster punched G.C. two or three times before she fell to the ground, and then while G.C. was on the ground, Foster punched her three or four more times. A bystander pulled Foster off of G.C., and as G.C. started to get up, Foster moved back toward her and kicked her in the head. Foster then walked away from the scene.
G.C. was taken to the hospital in an ambulance. She had bruising on the left side of her face, an orbital fracture, and a laceration near her hairline that required stitches and an orbital fracture.
In her trial testimony, G.C. described the events leading up to the assault on September 30, 2015. According to G.C., at the time of the assault she was in downtown San Diego to see people she knew and to eat lunch St. Vincent de Paul. She encountered Foster but tried to avoid acknowledging him. She was talking about going to have lunch when Foster suddenly attacked her. According to G.C.'s trial testimony, she did not see Foster earlier that day.
According to Foster's trial testimony, earlier on the morning of September 30, 2015, he was sitting in a car with three women in a parking lot in downtown San Diego. G.C. walked up and started cursing at him. G.C. reached into the car window, grabbed Foster's neck, and then took a taser out of her bag and activated it on Foster several times, including two times on his head. According to Foster, because of a traumatic brain injury, he suffers seizures, and thus he believed that G.C. was trying to induce a seizure and kill him by using a taser on his head.
After driving off, the driver of the car dropped off Foster a short distance away. According to Foster, he saw G.C. walking toward him. Foster tried to conceal himself in a building alcove in the area shown in the surveillance video, but G.C. saw him. Foster felt that G.C. was getting ready to attack him again like she did in the car, and she said "I'm going to mirk your ass," which is slang for "kill." Foster testified that he then saw G.C. start to go into her bag. He thought G.C. was getting out the taser or a knife to attack him, although he did not actually see her bring out either item. Foster then threw a cup of water at G.C. and assaulted her as shown on the video. According to Foster, he attacked G.C. to stop her from reaching into the bag to get a weapon, and he intended to protect himself, rather than to hurt G.C.
At trial, an investigator for defense counsel testified about a conversation that she had with G.C. on January 14, 2016. On that date, G.C. provided information that corroborated the version of events that Foster described during his testimony. G.C. told the investigator that on September 30, 2015, shortly before the assault, she encountered Foster in a car with three other women, grabbed Foster by the throat to choke him and then put a taser to Foster's head and pushed the button. G.C. stated that she encountered Foster later that morning, and he assaulted her. G.C. did not tell the investigator that she was taking out her taser at the time of Foster's assault. During G.C.'s trial testimony, G.C. denied ever making the statements to the investigator. G.C. testified that she did not encounter Foster in a car with three women on the morning of the assault, did not use a taser on him, and did not tell the investigator that she did so.
An amended information charged Foster with willful infliction of corporal injury upon a spouse or cohabitant (§ 273.5, subd. (a)) (count 1); assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)) (count 2); cruelty to a child by inflicting injury (§ 273a, subd. (b)) (count 3); and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) (count 4). As to counts 1 and 2, it was also alleged that Foster personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)), and intended to cause great bodily injury. (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) Further, the amended information alleged two prior strikes (§§ 667, subds. (b)-(i), 1170.12, 668); five prison priors (§§ 667.5, subd. (b), 668) and two prior serious felony convictions (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)).
At trial, the jury was shown the video of the assault, and several witnesses testified regarding their observations. Further, the jury heard testimony about several past instances of violent conduct by both Foster and G.C.
During closing argument, defense counsel argued that the jury should return a not guilty verdict on counts 1 and 2 because Foster was acting in self-defense when he assaulted G.C., as he was afraid she was going to attack him.
The jury found Foster not guilty on the child abuse charge alleged in count 3 (§ 273a, subd. (b)), but found him guilty on the assault and domestic abuse charges alleged in counts 1 and 2 (§§ 273.5, subd. (a), 245, subd. (a)(4)). As to counts 1 and 2, the jury also made a true finding that Foster intended to cause great bodily injury. (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii).) However, as to those counts the jury did not make a true finding on the allegation that Foster personally inflicted great bodily injury under circumstances involving domestic violence. (§ 12022.7, subd. (e).) Count 4 was severed from the other counts for the purpose of trial, and the People eventually moved to dismiss it.
Foster admitted his prior convictions as alleged in the amended information, including two prior strikes. (§§ 667, subds. (b)-(i), 1170.12, 668.) The trial court denied Foster's motion to strike his prior strikes and sentenced him to a prison term of 25 years to life.
II.
DISCUSSION
The jury was instructed with CALCRIM No. 3472 as follows: "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."
Foster contends on appeal that the trial court prejudicially erred by instructing the jury with CALCRIM No. 3472. Specifically, Foster's sole contention is that the instruction was erroneous because it did not communicate to the jury that "a person who intends only a quarrel or other non-deadly confrontation does not forfeit the right to self-defense if his adversary responds with deadly force." According to Foster, the instruction improperly "sets forth a blanket rule" and "recognizes no distinction between the type of force or altercation intended or the lawfulness of the response by the victim." Foster further contends that the error was prejudicial because it "essentially directed the jury to entirely reject Mr. Foster's only defense," which was that he assaulted G.C. in lawful self-defense.
A. Foster's Argument Is Not Forfeited
During counsel's discussion of jury instructions with the trial court, the trial court stated that it intended to instruct with CALCRIM No. 3472, and defense counsel made no objection to that instruction and did not request that the instruction be clarified or amplified.
Based on defense counsel's failure to object, the People contend that Foster has forfeited his right to seek a reversal based on his contention that the trial court prejudicially erred in instructing with CALCRIM No. 3472.
As our Supreme Court has explained, "[w]here . . . defendant asserts that an instruction is incorrect in law an objection is not required." (People v. Capistrano (2014) 59 Cal.4th 830, 875, fn. 11.) In contrast to this rule, however, our Supreme Court also has stated that "failure to request clarification of an otherwise correct instruction forfeits the claim of error for purposes of appeal." (People v. Lee (2011) 51 Cal.4th 620, 638.)
Further, another exception to the forfeiture doctrine for failure to object to an instruction arises when a defendant's substantial rights are at issue. (§ 1259; People v. Battle (2011) 198 Cal.App.4th 50, 64. "Substantial rights are affected if the error 'result[s] in a miscarriage of justice, [i.e.,] making it reasonably probable defendant would have obtained a more favorable result in the absence of error.' " (People v. Elsey (2000) 81 Cal.App.4th 948, 953, fn. 2.) "In this regard, '[t]he cases equate "substantial rights" with reversible error' under the test stated in People v. Watson (1956) 46 Cal.2d 818." (People v. Felix (2008) 160 Cal.App.4th 849, 857.) Thus, " ' "[a]scertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim—at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was." ' " (People v. Franco (2009) 180 Cal.App.4th 713, 719.)
According to Foster, his challenge to CALCRIM No. 3472 is cognizable on appeal for two reasons. First, he characterizes his argument as challenging the jury instruction as an incorrect statement of law because it improperly sets forth a blanket rule. Second, he contends the error impacts his substantial rights. Because an evaluation of whether substantial rights have been affected requires us to examine the merits of Foster's argument in any event, we will assume without deciding that Foster's argument challenges CALCRIM No. 3472 on the ground that it sets forth an incorrect statement of law rather than on the ground that the instruction should have been clarified or amplified. Both on that basis and in order to assess whether Foster's substantial rights may have been affected, we will accordingly proceed to consider the merits
B. The Trial Court Did Not Err in Instructing with CALCRIM No. 3472 Under the Circumstances of This Case

In claiming the court prejudicially erred by instructing the jury with CALCRIM No. 3472, Foster relies on the recent majority decision in People v. Ramirez (2015) 233 Cal.App.4th 940 (Ramirez). The majority decision in Ramirez stated that CALCRIM No. 3472 "misstates the law" in cases in which there is substantial evidence that the defendant provoked a fight with the intention of using nondeadly force and the victim unreasonably responded with deadly force. (Ramirez, supra, at p. 950.) As Ramirez held, under these circumstances, CALCRIM No. 3472 does not properly state the law because "[a] person who contrives to start a fistfight or provoke a nondeadly quarrel does not thereby 'forfeit[] . . . his right to live.' " (Ramirez, at p. 943.)
We assume, strictly for purposes of this opinion, that Ramirez was correctly decided. (But see Ramirez, supra, 233 Cal.App.4th at p. 957 (dis. opn. of Fybel, J.) [defendant does not lawfully act in self-defense where defendant provokes a fight "for the purpose of contriving the opportunity to engage in further violence in response to their adversary's reaction" regardless of whether the adversary's reaction escalated the violence].) However, as we will explain, even under the law as set forth in Ramirez, the trial court did not err in instructing with CALCRIM No. 3472 because the specific circumstances described in Ramirez were not present here.
As Ramirez makes clear, "CALCRIM No. 3472 states a correct rule of law in appropriate circumstances." (Ramirez, supra, 233 Cal.App.4th at p. 947.) The correct application of the instruction arises from the long-standing principles that "a victim may respond to an attacker's initial physical assault with a physical counterassault, and an attacker who provoked the fight may not in asserting he was injured in the fray claim self-defense against the victim's lawful resistance." (Ibid.) However, according to Ramirez the instruction is not correctly given in a case in which "the defendant contrived to provoke a confrontation to use only nondeadly force against the adversary" but the adversary responds with a "deadly attack." (Id. at p. 945.) Specifically, in Ramirez that circumstance was present because the record contained evidence from which the jury could have found that the defendants intended to provoke a fistfight with a rival gang, but during that altercation, a member of the rival gang brandished a gun, escalating a contrived fistfight into a deadly conflict. (Id. at pp. 944-945.) In those circumstances, the instruction must make an "allowance for an intent to use only nondeadly force and an adversary's sudden escalation to deadly violence" to inform the jury that self-defense is not precluded in such an instance. (Id. at p. 945.)
The court in People v. Eulian (2016) 247 Cal.App.4th 1324 (Eulian) succinctly explained the majority opinion in Ramirez as establishing that CALCRIM No. 3472 "is generally a correct statement of law, which might require modification in the rare case in which a defendant intended to provoke only a nondeadly confrontation and the victim responds with deadly force." (Eulian, at p. 1334.)
Citing Ramirez and Eulian, the bench notes to CALCRIM No. 3472 were recently revised to state that the instruction "may require modification in the rare case in which a defendant intends to provoke only a non-deadly confrontation and the victim responds with deadly force." (Judicial Council of Cal., Crim. Jury Instns. (2017) Bench Notes to CALCRIM No. 3472, p. 987.)
As we will explain, the rare circumstance identified in Ramirez, Eulian and the bench notes to CALCRIM No. 3472 was not present here because the evidence does not support a finding that G.C. responded with deadly force after Foster provoked a non-deadly confrontation.
According to the authorities we have cited, the rare case in which a modification to CALCRIM No. 3472 may be required is when the victim responds with deadly force after the defendant has provoked a non-deadly confrontation. According to the evidence at trial, Foster engaged in only a single act of provoking a confrontation with G.C., namely when he threw a cup of water at G.C., followed immediately by a physical attack on her involving multiple punches and a kick. Foster stated that he attacked G.C. in this way because he thought G.C. was trying to get a weapon out of her bag and he wanted to stop her. It is clear from the video and the witnesses' testimony that there was no opportunity for G.C. to respond with deadly force after Foster initially provoked the fight. Although Foster believed that G.C. intended to take out a weapon from her bag, G.C. could not have done so at any time after Foster provoked the fight because Foster's initial lunge moved G.C. away from her bag where he believed deadly weapons were located. Further, Foster continued to punch G.C. throughout the assault in such rapid succession and with such force that she did not have an opportunity to fight back in any way whatsoever, let alone have the opportunity to walk back toward her bag to get a weapon. Therefore, the evidence at trial showed that there is no way G.C. could have taken any action to respond with deadly force after Foster provoked the fight.
Because G.C. had no opportunity to respond with deadly force after Foster first provoked the fight, this is simply not a situation in which the "defendant intended to provoke only a nondeadly confrontation and the victim responds with deadly force." (Eulian, supra, 247 Cal.App.4th at p. 1334.) Accordingly, Foster has not established that this is a rare case in which a modification to CALCRIM No. 3472 was required.
C. If There Was Any Error, It Was Not Prejudicial
Further, any error by the trial court in instructing with CALCRIM No. 3472 was harmless under any standard of prejudice. (See Eulian, supra, 247 Cal.App.4th at p. 1335 [rejecting claim that trial court committed reversible error in failing to modify CALCRIM No. 3472 pursuant to Ramirez because "during argument to the jury the prosecutor never even mentioned CALCRIM No. 3472, or the principle explained in the instruction"].)
As Ramirez set forth, the possible prejudice in giving CALCRIM No. 3472 arises when the jury might use that instruction to conclude that the defendant has forfeited his right to self-defense by starting a fight with an excuse to use force, even if the victim escalates the fight using deadly force. However, as we have explained, that circumstance is simply not present in this case. There was no evidence of a non-deadly confrontation provoked by Foster, to which G.C. responded with deadly force. Therefore, the possible prejudice in giving CALCRIM No. 3472 does not arise here.
Further, unlike in Ramirez, the prosecutor did not argue that Foster had provoked the incident to create an excuse to use force and therefore had forfeited his right to self-defense. Specifically, during her initial closing argument, the prosecutor mentioned the concept set forth in CALCRIM No. 3472, but did not attempt to apply it to the facts of this case. The prosecutor stated, "So, the law goes on to tell you that the law of self-defense, the right of self-defense, cannot be contrived. And it tells you that a person does not have the right to self-defense if they provoke a fight with the intent to create a use of force." The prosecutor then moved on to discuss other issues and said nothing about Foster provoking a fight before G.C. purportedly attempted to use deadly force on him.
In rebuttal argument, the prosecutor mentioned the concept of provocation set forth in CALCRIM No. 3472. The prosecutor attempted to apply CALCRIM No. 3472 to the facts of the case, but ended up making a statement that had nothing to do with the idea that Foster provoked a fight to create an excuse to use force. "[T]his instruction right here is really important when it comes to self-defense. It says the law of self-defense cannot be contrived. Essentially it says you don't have the right to self-defense if you provoke a fight and then you create your own excuse for force. And that is what Mr. Foster is trying to do. He's trying to give an excuse for his conduct that he is literally caught on video red-handed doing. But you saw that in the video as [G.C.] just starts to bend down towards her bag, he is already wound up and bringing something back."
Thus, in neither of the instances in which the prosecutor mentioned CALCRIM No. 3472 did she state that Foster should not be permitted to claim self-defense because he had provoked a fight with the intent of causing G.C. to respond and creating an excuse to use force to defend himself. Instead, the prosecutor's closing argument was closely focused on demonstrating to the jury that the requirements of self-defense were not met in this case because Foster's use of force was unreasonable and excessive.
It is also significant that unlike in Ramirez, defense counsel here did not argue that even if Foster had been the initial aggressor, Foster had regained the right to use force when G.C. suddenly escalated the fight. Rather, the defense in this case was that G.C. was a violent and dangerous person who had been the aggressor from the beginning, giving Foster a right to defend himself. The absence of any suggestion by defense counsel that Foster had regained a right of self-defense due to escalation of the fight by G.C. made it unlikely that the jury would rely on CALCRIM No. 3472 to improperly reject Foster's self-defense claim.
In sum, under the circumstances of this case, we conclude that any error in instructing with CALCRIM No. 3472 was harmless under any standard, as it is clear beyond a reasonable doubt that Foster would not have obtained a more favorable result absent any error.
DISPOSITION
The judgment is affirmed.


IRION, J.

WE CONCUR:




HALLER, Acting P. J.




AARON, J.