THE PEOPLE, Plaintiff and Respondent, v. WILBERT FRANK, Defendant and Appellant.






2011 Cal. App. Unpub. LEXIS 4500



June 14, 2011, Filed


COUNSEL: Marianne Harguindeguy Cox, under appointment by the Court of Appeal, for Defendant and Appellant.


Edmund G. Brown, Jr., Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting, Heidi T. Salerno and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.







A jury convicted defendant Wilbert Frank of the lesser included offense of spousal battery under count 1. (Penal Code, § 243, subd. (e)(1).) 1 The jury found defendant not guilty of corporal injury on a spouse, (count 1–§ 273.5) not guilty of corporal injury on a child, (count 2–§ 273d, subd. (a)) and not guilty of the lesser included offense of child abuse under count 2 (§ 273a, subd. (b)). The court sentenced defendant to three years of probation, and required him to serve 75 days in jail on weekends or on home detention. On appeal, defendant raises two issues: (1) the court erred in instructing the jury with CALJIC No. 5.32, use of force in defense of another, because his wife’s rationale for attacking him was irrelevant to defendant’s claim of self-defense; and (2) the court erred in instructing the jury with CALJIC No. 5.54, self-defense by an aggressor, because defendant was not an initial aggressor against his wife. We hold that the court properly instructed the jury with CALJIC Nos. 5.32 and 5.54 and affirm the judgment.


1   All further statutory references are to the Penal Code unless otherwise indicated.



On September 25, 2008, at 5:19 p.m., defendant’s 15-year-old daughter (daughter) called 911. 2 Daughter reported that her “dad just came home drunk and he’s hitting me and my sisters and my mom.” She elaborated: “He just . . . kept hitting my mom, and he grabbed her by the hair and he was just throwing her everywhere.” Daughter indicated that her parents were still fighting as she was on the phone. She reported being cloistered in the closet while making the call.


2   A recording of the entire call and portions thereof were played to the jury four times during trial.

Riverside County Sheriff’s Corporal Richard Carroll was dispatched to defendant’s residence in response to the reported domestic battery. He made contact with defendant’s wife (wife) at the front door. Wife reported that defendant left several minutes earlier; she appeared scared and upset. She informed Corporal Carroll that she had just been engaged in a physical altercation with defendant; defendant threatened to kill her if he was arrested.

Corporal Carroll testified that wife reported defendant came home that evening “agitated” and yelled at daughter for using the computer. Wife went upstairs, where she witnessed defendant striking daughter. One of the strikes caused daughter to lose her balance and fall into the shower. Wife then saw defendant strike daughter once more in the face with a closed hand.

Corporal Carroll testified he then contacted daughter, who was also upset and appeared to have been recently crying. Daughter informed Corporal Carroll that defendant came home “agitated” and started to yell at her for being on the computer. She told defendant that she had permission from wife to be on the computer; nonetheless, she went to the bathroom to get away from him. Defendant followed her, and slapped her in the face 10 to 15 times. Defendant then struck her once on the right side of the face with a closed hand. Wife attempted to intervene by placing herself between defendant and daughter. Defendant then struck or slapped wife several times on her head and face. Defendant placed wife in a headlock.

Corporal Carroll observed a scratch on wife’s elbow with some dried blood on it; wife noted that it must have occurred during the altercation. He also observed redness on the back of wife’s neck. Corporal Carroll did not observe any injuries to daughter. Corporal Carroll did not observe anything in the home that would suggest that a struggle had occurred. Daughter’s face was not consistent with someone who had been hit in the face by a grown man; her nose was not bleeding, she did not have a black eye, she had no swelling, bruising, or redness. Similarly, wife’s face was not consistent with someone who had been hit several times in the face by a grown man; there was no redness, swelling, black eyes, or cuts. Corporal Carroll testified he did not believe the statements made by daughter in the 911 call were consistent with his observations at the scene.

Daughter testified that she had been home on the computer when defendant came home and asked her to get off the computer; she asked him why and he told her because he said so. She shut down the computer and went upstairs. Daughter began to get ready to go to the park with her sisters. Defendant said she should remain home studying so that she could get better grades like her sister. Daughter told defendant that she received grades just as good as her sister. Defendant became angry; he entered the bathroom she was in and told her she should not talk to him like that. She testified he then “bonked me on the back of my head.” It was “[j]ust, like, a little tap on the back of my head,” a little flick. Defendant then “nudged” her a little, which caused her to stumble.

Daughter testified that she then called for wife because she was uncomfortable with the situation; defendant continued to yell at her. Wife told defendant to stop; defendant then grabbed wife in a “headlock.” Daughter testified that defendant never hit either her or wife. She called the police because it was what wife instructed her to do.

Defendant left the home; the police arrived within five to ten minutes thereafter. Daughter testified she spoke with Corporal Carroll. She did not recall telling him defendant slapped her in the face 10 to 15 times. She did not recall testifying at the preliminary hearing that defendant punched her. After having her recollection refreshed with a transcript from the preliminary hearing, she agreed she had testified that defendant hit her with a closed hand. Daughter neither remembered testifying she had incurred a red mark on her face from defendant’s punch nor that defendant painfully grabbed her arm. However, when confronted with a transcript of the preliminary hearing she conceded she testified that defendant grabbed her arm, moved her around uncomfortably, and frightened her. She had also previously testified defendant hit her chest and shoulders. She did not now recall that occurring: “I honestly don’t remember. I mean, I remember being hit twice in the head, but after that I don’t remember . . . anywhere else.” She recalled telling the 911 operator defendant was hitting her mother, but that is not what actually happened. She may also have told the 911 operator that defendant had punched her.

On cross-examination daughter admitted she was crying when she made the 911 call. She was scared and upset at the time. She testified her statements on the 911 call were not reflective of what actually occurred that day; she embellished events because she did not believe the police would take the matter seriously otherwise. Daughter recalled telling Corporal Carroll she felt pain on her face, but not how she incurred it. She did not have any bruising, swelling, bleeding, or cuts to her face. She stated that she was acting up that day “[b]ecause . . . [defendant] assumes that his word is . . . the final word, and sometimes I’m rebellious and just go against whatever he says.” At the preliminary hearing, daughter testified that wife started hitting her dad with a shoe: “My mom had c[o]me up . . . behind him and had hit . . . his arm, or part of his back with a shoe to . . . back him away from me.”

Wife testified that when defendant came home that evening he “was not in a very good mood” and “was kind of mean to [daughter].” Daughter was using the computer; wife had specifically given her permission to do so. Defendant raised his voice to daughter; he told her she should be studying. Wife went upstairs because she heard “screaming.” She heard daughter saying “‘Stop it,’ and, ‘Don’t hit me.'” Defendant responded, “‘You’re not gonna disrespect me.'” When she first saw them, daughter was crying; defendant “pushed her with one hand, and . . . she yelled back at him.” Defendant then flicked the back of daughter’s head with his fingertips. Wife decided to intervene “[b]ecause . . . I do not agree with physical punishment of the girls at that age.” “[Daughter] was upset. It was too heated. And I don’t agree with him being physical with her. That’s not something that happens in our house.”

Wife took off her sandal, held it in her hand above her head, ran toward them, and told defendant to stop. “I don’t actually remember hitting him. I actually swung [the sandal] at him, and he had–I believe he had grabbed my arm or hand. [¶] . . . [¶] . . . I never actually hit him, but I did swing at him.” Defendant placed her in a headlock, restraining her so she could not move away. She “struggled to be released.” After wife yelled that she hated him, defendant released her approximately a foot and a half away from where he originally grabbed her. She told one of her daughters to call 911 because she was angry; it was not because she had been hit. The only injury she sustained was a scratch on her left arm near her elbow. She told defendant to leave the house; he left three to five minutes thereafter and did not return for two days. When he left, he told her, “‘If I get arrested, your ass is mine.'” He never threatened to kill her. Wife did not tell Corporal Carroll that defendant hit either her or daughter. Wife testified defendant had hit her once in the past and she did call the police on that occasion.




A. CALJIC NO. 5.323


3   Neither party requested that the court instruct the jury with CALCRIM instructions, though “The California Judicial Council withdrew its endorsement of the long-used CALJIC instructions and adopted the new CALCRIM instructions, effective January 1, 2006.” (People v. Thomas (2007) 150 Cal.App.4th 461, 465.) Nevertheless, “use of the CALCRIM instructions [is] not mandatory, but merely ‘strongly encouraged’ and ‘recommended.'” (Ibid.)

Defendant contends the court’s instruction with CALJIC No. 5.32 effectively negated his theory of self-defense, because it required the jury to determine the lawfulness of wife’s actions in resolving whether defendant had a right to defend himself. He maintains that wife’s actions were not at issue in the case–she was not a party to the prosecution–hence, the court’s instruction to the jury, that it was lawful for a person who reasonably believes another person is in danger of bodily injury to use force against the aggressor, effectively told the jury that defendant could not legally claim self-defense. Even to the extent the jury could have conceived that it could still find defendant acted in self-defense, defendant argues the instruction improperly placed the burden of persuasion on him, rather than on the People where it properly belonged. We disagree.

During the initial discussion regarding jury instructions, the court, the People, and defense counsel engaged in the following colloquy:

“The Court: Now I’m going through the self-defense instructions. I have 5.30, 4 5.50. 5 Then I have 5.51. 6 And then I have a couple of more–I don’t know if they’re appropriate–5.52, 5.53, and 5.54. 7 They kind of talk about when the danger is ended, and then we talk about one who is the aggressor.


4   CALJIC No. 5.30, Self-Defense Against Assault, as given: “It is lawful for a person who is being assaulted to defend himself from attack if, as a reasonable person, he has grounds for believing and does believe that bodily injury is about to be inflicted upon him. In doing so, that person may use all force and means which he believes to be reasonably   necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent.”

5   CALJIC No. 5.50, Self-Defense–Assailed Person Need Not Retreat, as given: “A person threatened with an attack that justifies the exercise of the right of self-defense need not retreat. In the exercise of his right of self-defense, a person may stand his ground and defend himself by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge; and a person may pursue his assailant until he has secured himself from danger if that course likewise appears reasonably necessary. This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene.”

6   CALJIC No. 5.51, Self-Defense–Actual Danger Not Necessary, as given: “Actual danger is not necessary to justify self-defense. If one is confronted by the appearance of danger which arouses in his mind, as a reasonable person, an actual belief and fear that he is about to suffer bodily injury, and if a reasonable person in a like situation, seeing knowing the same facts, would be justified in believing himself in like danger, and if that individual so confronted acts in self-defense upon these appearances and from that fear and actual beliefs, the person’s right of self-defense is the same whether the danger is real or merely apparent.”

7   CALJIC No. 5.54, Self-Defense by an Aggressor: “The right of self-defense is only available to a person who initiated an assault, if he has done all the following: [¶] (A) He has actually tried, in good faith, to refuse to continue fighting; [¶] (B) He has by words or conduct caused his opponent to be aware, as a reasonable person, that he wants to stop fighting; [¶] (C) He has by words or conduct caused his opponent to be aware, as a reasonable person, that he has stopped fighting. [¶] After he has done these three things, he has the right to self-defense if his opponent continues to fight.”

“[Defense Counsel]: I don’t think self-defense by an aggressor applies, does it?

“[Prosecutor]: Absolutely, it does.

“The Court: [The People’s] position is [defendant] started it.

“[Defense Counsel]: Oh, okay. Got you. It doesn’t apply in my facts.

“The Court: Well, some may hear one side, and some jurors hear another. I’m glad I don’t have to decide. [¶] The last one is self-defense. It’s 5.55, that self-defense can’t be contrived. And I think that includes everything on self-defense

“[Prosecutor]: On 5.54 did the court strike the part about the deadly counterassault?

“The Court: I don’t know. Let me see. Yeah, that’s the second part. Yeah, that’s the option number two. There’s no deadly counterassault.

“[Defense Counsel]: I don’t know. That shoe could be deadly, your Honor.

“The Court: The Roman sandals or flip-flops. Okay. 5.54 will be given.

“[Defense Counsel]: I have no problem with the rest of them. [¶] Do you?

“The Court: I did delete the deadly counterassault. So we have a 5.52, 5.53, 5.54, 5.55, and we have 5.50, 5.51. So pretty much the gamut.”

Later, the People requested the court also instruct with CALJIC No. 5.32. 8 Defendant objected: “I don’t think it’s appropriate because I think self-defense only applies to [defendant], and there is no evidence or facts to suggest that he was defending another.” The court responded, “I don’t think it’s inappropriate. Both sides could argue their positions, and it is lawful. I mean, that’s the law. It’s lawful for one person to come to the defense of another person no matter who the person is trying to protect that person. I will give it. I don’t think it’s inappropriate.”


8   CALJIC No. 5.32, Use of Force in Defense of Another, as eventually given: “It is lawful for a person who, as a reasonable person, has grounds for believing and does believe that bodily injury is about to be inflicted upon another person, to protect that individual from attack. In doing so, she may use all force and means which that person believes to be reasonably necessary and which would appear to a reasonable person, under the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent.”

During their closing argument, the People argued wife “was entitled to go after him. And she said the reason she went and approached and ran . . . up to the defendant was because she was afraid what could happen. She didn’t agree with the fact that he was hitting her, with the fact that, she said, tapping her head. . . . She felt compelled to run up to him and protect her daughter. [¶] And the law allows someone to protect another person.” “Self-defense is not applicable to the defendant because he was the initial aggressor in this whole dispute.” Defense counsel argued strenuously and repeatedly that defendant’s acts against wife were in proper exercise of his legal right to defend himself, specifically mentioning the self-defense jury instructions. In their rebuttal, the People argued defendant’s theory of the case was unavailing: “And the defense is going on about self-defense and how he gets to essentially hit his wife and restrain his wife because she came after him. She had a right to come after him. She had a right to go and protect her daughter . . . .” The People argued that since defendant was “the initial aggressor,” wife was “allowed to use force against him in the defense-of-other instruction that you heard. She is allowed to go forward and protect her daughter. She can go forward and use force against him if she believed her daughter was in danger.”

After the jury rendered its verdicts, defendant filed a motion for new trial averring that the court’s instruction of the jury with CALJIC No. 5.32 was erroneous as a matter of law, because it effectively directed the jury that defendant was not entitled to a claim of self-defense. At the hearing on the motion, defense counsel argued that instruction  with CALJIC No. 5.32 was legally improper considering that the jury found defendant was legally entitled to use whatever force he did against daughter; thus, wife would not be legally entitled to use force in defense of another: “He’s never the aggressor with respect to the daughter because the jury came back with a factual finding that the felony charge against the daughter and the misdemeanor charge against the daughter both were not guilty . . . .” The court denied the motion for new trial finding defendant suffered no prejudice from any of the instructions, including CALJIC No. 5.32.

“A court is required to instruct on the law applicable to the case, but no particular form is required; the instructions must be complete and a correct statement of the law. [Citation.] The meaning of instructions is tested by ‘whether there is a “reasonable likelihood” that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel.’ [Citation] ‘”[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.” [Citation.]’ [Citation.]” (People v. Fiu (2008) 165 Cal.App.4th 360, 370.) “‘”The trial court functions both as a neutral arbiter between two contesting parties and as the jury’s guide to the law. This role requires that the court fully instruct the jury on the law applicable to each particular case. ‘”It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.”‘”‘ [Citation.]” (People v. Watie (2002) 100 Cal.App.4th 866, 876 (Watie).)

“We review de novo whether jury instructions state the law correctly. [Citation.] ‘”Review of the adequacy of instructions is based on whether the trial court ‘fully and fairly instructed on the applicable law.’ [Citation.]” [Citation.] “‘”In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.” [Citation.]’ [Citation.]” [Citation.]’ “‘Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.’ [Citation.]” [Citation.]’ [Citation.]” (People v. Jackson (2010) 190 Cal.App.4th 918, 923.)

Here, we find the court’s instructions adequately conveyed to the jury that it could find defendant acted in lawful self-defense regardless of the court’s instruction with CALJIC No. 5.32. Indeed, the court instructed the jury with CALJIC Nos. 5.30 (Self-Defense Against Assault), 5.50 (Self-Defense–Assailed Person Need Not Retreat), and 5.51 (Self-Defense–Actual Danger Not Necessary), all of which more than sufficiently expressed to the jury that defendant’s self-defense theory remained in play. Moreover, the court twice instructed the jury with the bracketed language from CALJIC No. 16.140.1: “The use of force or violence is not unlawful when done in lawful self-defense. The burden is on the People to prove that the use of force or violence was not in lawful self-defense. If you have a reasonable doubt that the use of force or violence was unlawful, you must find the defendant not guilty.” Thus, again, the jury could not have reasonably ignored all the court’s instructions on self-defense simply because the court instructed it with CALJIC No. 5.32; neither could it have believed that defendant bore the burden of proving self-defense, as the latter instruction explicitly informed the jury that the People had that burden. Here, the jury simply had no reason to disregard, as irrelevant or superfluous, the multiple instructions on self-defense.

Furthermore, prior to formally instructing the jury, the court informed it: “You are bound to follow the jury instructions, although one instruction does state that you might find that all the instructions might not apply necessarily, depending upon what you find the facts to be. [¶] . . . So if you find an instruction is given to you that pertains to a fact or scenario which you, as a finder of fact, find does not exist, that particular instruction regarding that scenario would simply not apply.” The referenced instruction, CALJIC No. 17.31 (All Instructions Not Necessarily Applicable), was later given in its entirety during the court’s formal instruction: “The purpose of the court’s instructions is to provide you with the applicable law so that you may arrive at a just and lawful verdict. Whether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to the facts determined by you not to exist. Do not conclude that because an instruction has been given I am expressing an opinion as to the facts.” Therefore, the court expressly informed the jury that not all of the instructions would necessarily apply depending upon the factual determinations it made; in other words, CALJIC No. 5.32 might not even be applicable depending upon its findings. Thus, the court’s instruction of the jury did not deprive defendant of his defense. The jury either found that wife did not attack him, her “attack” was not such that it gave rise to defendant’s right to react in the manner he did, or that wife was acting lawfully in defense of her daughter.

Nevertheless, defendant contends the instruction was an improper statement of the law because wife was not a party to the case, i.e., only defendants are entitled to instructions regarding a defense of another, not third parties. We find Watie, supra, 100 Cal.App.4th 866, instructive. In Watie, the People charged the defendant with the murder of his stepfather. (Id. at pp. 871, 875.) The defendant proffered a theory of the case in which he shot his stepfather after the latter obtained a rifle during a heated argument; thus, the defendant contended he acted in self-defense. (Id. at pp. 873-874, 876.) The defendant argued the court should not have instructed the jury on the victim’s right to act in defense of his dwelling (CALJIC Nos. 5.40, 5.42) because it was irrelevant to a determination of the defendant’s guilt. (Watie, at p. 876.) The defendant maintained that the instruction effectively allowed the jurors to presume the victim was acting in lawful defense of his property and, therefore, removed the defendant’s theory of self-defense from the jury’s consideration. (Ibid.) The court held the instructions proper: “To be acquitted of responsibility for a [crime] based on self-defense, the defendant must have acted pursuant to an actual and reasonable belief in the need to defend himself . . . . [Citations.]” (Id. at p. 877.)

The Watie court cited with approval the holding in People v. Gleghorn (1987) 193 Cal.App.3d 196, “that the trial court properly instructed the jury on the victim’s right to defend himself. [Citation.]” (Watie, supra, 100 Cal.App.4th. at p. 878.) Likewise, Watie examined People v. Hardin (2000) 85 Cal.App.4th 625, where the appellate court rejected the defendant’s contention that the trial court erred in instructing the jury with CALJIC No. 5.17, which informed it that an individual who kills another person with actual but unreasonable belief in the necessity to defend himself is not guilty of murder. (Watie, at p. 878.) Thus, the Hardin defendant’s contention that the court erred in instructing the jury that it could find the 79-year-old victim had a right to defend herself with a hammer, when the defendant invaded her home while fleeing from the police, was mistaken. The Hardin defendant did not have a right to kill the victim out of self-defense because the victim’s use of force was privileged. (Watie, at p. 878.) Watie ultimately concluded that “[t]hese cases . . . establish that the right of a victim to defend himself  . . . is a relevant consideration in determining whether a defendant may prevail when he seeks to . . . assert[] . . . self-defense.” (Ibid. at p. 878, italics added.)

By parity of reasoning, the court’s instruction here with CALJIC No. 5.32 was proper. Wife’s right to come to the defense of daughter is just as relevant a consideration in the determination of defendant’s assertion of self-defense as is any right of a victim to defend her property. We readily acknowledge the differences between this case and those cited above. Unlike the cases discussed, no assertion of defense of property was at issue. Likewise, in the current case, there was no threat of great bodily harm. Nevertheless, as in Waite, “[i]f [wife] had a right to use force to defend [her daughter] . . . then defendant had no right of self-defense . . . .” (Watie, supra, 100 Cal.App.4th. at p. 878.) Thus, the court’s instructions on wife’s rights to defend another, in tandem with instructions on defendant’s right of self-defense, were proper; in order for the jury to have found that defendant acted in lawful self-defense, the jury was necessarily required to find that wife’s actions were unlawful. (Ibid.; 1 Witkin, Cal. Crim. Law (3d ed. 2000) Defenses, § 66(3), p. 401.) The jury apparently found otherwise. “Thus, the instructions given were a correct statement of the law. Further, the instructions were responsive to the evidence.” (People v. Fiu, supra, 165 Cal.App.4th at p. 372.)



Defendant contends the court’s instruction with CALJIC No. 5.54 misdirected the jury because defendant never initiated an assault on wife, the person against whom he was ostensibly defending himself. Moreover, he maintains that the instruction inferentially insinuated that defendant was the aggressor. Finally, defendant suggests the court erred in failing to give the bracketed language in CALJIC No. 5.54. We find no error.

First, arguably, defendant forfeited his challenge to CALJIC No. 5.54 as given. (People v. Lee (2011) 51 Cal.4th 620, 638 [failure to object or request modification or amplification of jury instruction forfeits any claim of error on appeal].) As discussed above, defendant’s only retort to the court’s indication that it would give the instruction was, “I don’t think self-defense by an aggressor applies, does it?” The court responded it was the People’s position that it did. Defense counsel replied, “Oh, okay, Got you. It doesn’t apply in my facts.” As the People note, defendant made no argument why CALJIC No. 5.54 should not be given. Moreover, defendant’s comments regarding the applicability of the instruction appear, at best, sardonic remarks, not legally quantifiable objections. Indeed, when the court noted it was striking the bracketed portion of CALJIC No. 5.54 permitting the initial aggressor to utilize self-defense without first withdrawing, so long as the victim’s assault was “sudden and deadly,” defendant’s counsel responded “I don’t know. That shoe could be deadly, your Honor.” The court responded with an acknowledgment of defense counsel’s mocking tone: “The Roman sandals or flip-flops. Okay. 5.54 will be given.” Finally, defense counsel acknowledged he had “no problem with the rest” of the instructions, insinuating acquiescence, if not assent, to the instructions proposed. Thus, defendant forfeited the issue by failing to raise it with specificity below.

Second, assuming arguendo that defendant preserved the issue, or that his contention is that the instruction was a misstatement of the law, we hold the court committed no error in instructing the jury with CALJIC No. 5.54. Contrary to defendant’s assertion, the instruction did not dictate to the jury a finding that defendant was the initial aggressor. As discussed above, we do not excerpt a single instruction or portion thereof in determining the validity of the trial court’s instructions to the jury. Rather, we look at the instructions as a whole. (People v. Jackson (2010) 190 Cal.App.4th 918, 923.) Likewise, we assume that the jury looked at them in the same manner. (Ibid.) Thus, again, we cannot assume the jury focused simply on this instruction in the manner proposed by defendant and ignored the remaining instructions. The jury was adequately instructed on the varying and competing claims of self-defense and defense of others. It was the jury’s province to determine whether defendant was either the initial aggressor or an aggressor at all. Again, the jury clearly found defendant was both. Thus, although the court’s instructions permitted such a determination, they did not dictate it. “The trial court was obligated to instruct on the basic principles of self-defense. It satisfied this duty by giving the standard CALJIC instructions on this topic. These instructions are legally correct . . . .” (People v. Garvin (2003) 110 Cal.App.4th 484, 489.)

Third, defendant’s argument that CALJIC No. 5.54 was improperly given because any aggression he may have initiated was not against wife (the person against whom he was asserting his privilege of self-defense) fails because, as discussed above, it ignores the nuanced interplay of all the instructions given on self-defense and defense of others. Here, it was undisputed that defendant was the initial aggressor against daughter. Even if all defendant did was flick daughter in the head and push her, and such aggression was determined by the jury to be legally permissible pursuant to the court’s instruction with CALJIC No. 4.80 (Parent’s Right to Discipline Child), wife could still have reasonably believed her intervention was necessary to prevent defendant from inflicting further bodily injury upon daughter. Indeed, wife testified that she heard daughter “screaming,” say “‘Stop it,'” and “‘Don’t hit me.'” She described the scenario as “heated” and “physical.” Thus, the jury could reasonably have determined that, from wife’s perspective, she had a privilege to intervene using reasonable force. Likewise, the threat of the use of a sandal in such an intervention would also appear imminently reasonable. Thus, again, “[i]f [wife] had a right to use force to defend [her daughter] . . . then defendant had no right of self-defense . . . .” (Watie, supra, 100 Cal.App.4th. at p. 878.) Instruction of the jury with the panoply of instructions on self-defense and defense of others is proper where there are competing claims of a right to self-defense between the defendant and the victim. (See Ibid.; see also §§ 692, 693, 694.) Thus, it is irrelevant whether wife was the individual against whom defendant directed his initial aggression, so long as defendant initiated the aggression that required wife’s intervention, and wife’s intervention was legally permissible. Therefore, the court’s instruction of the jury with CALJIC No. 5.54 was proper.

Finally, defendant’s insinuation the court erred by failing to give the bracketed language in CALJIC No. 5.54 fails because there was no evidence to support it. (People v. Garvin (2003) 110 Cal.App.4th 484, 488-489 [court only required to instruct jury sua sponte on general principles of law relevant to issues of case where substantial evidence supports the instructions].) The bracketed language reads: “[[2.] [if] [T][t]he victim of simple assault responds in a sudden and deadly counterassault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense.]” (CALJIC No. 5.54.) Defendant contends that without the bracketed language, he was essentially denied his defense because wife’s sudden attack upon him rendered impossible any fulfillment on his part of the three-pronged test for an initial aggressor to remove himself from the fight he created. We note, however, that if there was any “impossibility” in removing himself from the fight he created, that “impossibility” reflected on defendant’s actions on the date of the incident, not from any deficiency in the instruction. Moreover, here, daughter gave defendant ample opportunity to remove himself from the altercation; she screamed, told him to desist, and told him to stop hitting her. Despite this, defendant continued his assault upon daughter long enough that wife was able to make it upstairs and witness a portion of the assault prior to her intervention. Furthermore, there was evidence wife told defendant to stop before she initiated her “attack.” Although the evidence was certainly susceptible to a determination that wife’s “attack” upon defendant was “sudden,” there was simply no evidence it was “deadly.” Indeed, as noted above, the court and defense counsel apparently mocked such a construction. Thus, the court did not err in not instructing the jury sua sponte with the bracketed language of CALJIC No. 5.54. The court’s instruction of the jury was proper.



The judgment is affirmed.



We concur:






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