P. v. Morash
Appellant Robert Aubrey Morash, Jr. was involved in a fight instigated by brothers Randall and Matthew Clements that culminated in appellant cutting Matthew in the neck with a utility knife. Appellant was convicted of assault with a deadly weapon by means of force likely to produce great bodily injury. During the trial, the court gave the jury instructions on self-defense, including Judicial Council of California Criminal Jury Instructions (2007) CALCRIM No. 3471 (CALCRIM), which told the jury that self-defense is not available to a person who engages in mutual combat or who is the first one to use physical force unless certain requirements are first met.
On appeal, appellant contends the trial court erred by instructing the jury with CALCRIM No. 3471, because the record lacks evidence that appellant was engaged in mutual combat for purposes of Californias law of self-defense. Respondent concedes the lack of evidentiary support for the instruction but asserts the error was not prejudicial. For reasons discussed below, we agree with the parties that the trial court erred in instructing the jury with CALCRIM No. 3471. Given the entirety of the record, we conclude the error was prejudicial and reversal is required. Accordingly, Court do not address appellants other contentions on appeal.
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