People v. Gregory, 2018 Cal. App. Unpub. LEXIS 6700

Court of Appeal of California, Third Appellate District

October 1, 2018, Opinion Filed


2018 Cal. App. Unpub. LEXIS 6700

THE PEOPLE, Plaintiff and Respondent, v. DAMON RAY GREGORY, Defendant and Appellant.


Defendant Damon Ray Gregory appeals a judgment entered after a jury found him guilty of assault with a deadly weapon, but not guilty of the allegation that he caused great bodily injury during the commission of the offense. He contends the trial court erred in denying his two motions to replace counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 and in instructing the jury with CALCRIM No. 3472 regarding contrived self-defense. We affirm.


What follows is a description of the testimony of the witnesses relevant to defendant’s claims on appeal.

The People’s Case

The victim Julian Matthes testified to living in the downstairs apartment diagonally below the upstairs apartment of defendant. The victim was socializing with his girlfriend, Kelsey, and a few of her friends (Jacob and Carly) at his apartment when, at about 10:00 p.m., a neighbor across the street texted and asked him to turn down the music. Defendant was also upset about the music. After the music stopped, defendant yelled at the victim’s girlfriend, who was on the phone on the porch of his apartment, stating, “Get off the fucking phone, you stupid [twat],” which the victim understood to mean calling her a “hoe.” This provoked the victim to come outside and tell defendant to either “call the cops or call the landlord.” A yelling match ensued between the victim, his girlfriend, and defendant. This argument lasted somewhere between five and 10 minutes. Defendant told the victim to come upstairs. In the exchange, the victim and his girlfriend also told defendant to come downstairs. The victim understood defendant’s physical demeanor and tone to mean that he wanted to fight. The victim did not see a weapon on defendant while he was arguing with him from downstairs.

The victim’s testimony continued that, at one point, defendant went inside his apartment. When defendant reemerged, the victim decided to go upstairs. Defendant continued telling the victim to come upstairs, and the victim responded, “I am right here. I am up here.” The victim was not armed, nor did he pretend to be, and did not threaten defendant. The victim climbed to a few steps above the middle of the stairs with his hands at his sides, and defendant cut him with a machete on the shoulder from the top landing. The victim ran down the stairs, and his girlfriend called 911.[1]

The victim’s girlfriend recorded part of the argument leading up to the assault with her cell phone. This video was played for the jury. The victim testified he believed the video showed defendant “wielding the machete . . . [and] . . . saying come here, come here.” He also thought the video showed defendant saying he was going to kill him, that he was going to die, and that had he not moved when defendant swung the machete, defendant would have killed him.

Carly testified she was with her friend Kelsey at the victim’s apartment. There was alcohol there, but she was not drinking. Defendant, from the apartment kitty-corner from them, was upset and saying nasty things to Carly and Kelsey.[2] Kelsey, the victim, and an individual identified as Jacob responded, and they yelled back and forth. The argument intensified and defendant told the victim to come upstairs, and “[w]e can solve it like men.” At one point, Carly saw defendant holding a long black knife and threatening that he could stab them and get away with it because he had good friends at the Roseville Police Department. Defendant was holding the weapon behind his back, but Carly could see the blade. Someone threatened to call the police, and defendant said to call them, that they were his friends, and that he was not scared. The victim climbed three or four steps, and defendant ran down, striking the victim’s shoulder with a machete. Afterwards, defendant yelled, “Come back here.” Carly did not see the victim touch defendant or hear him make any threats while climbing the stairs.

Officer Brian Albonetti with the Roseville Police Department testified to interviewing defendant in the back of his patrol car on the evening of the incident. This conversation was not recorded, but Officer Albonetti’s report directly quoted defendant when he said something pertinent to the investigation. Officer Albonetti Mirandized[3]defendant, who agreed to speak with him. Defendant relayed he had been having problems with the victim for a few weeks concerning loud music and marijuana, and on the night in question, again had these problems.

Defendant told Officer Albonetti that he had asked the victim to shut up, and the victim told him to fuck off; the two yelled at each other and provoked each other to fight. Defendant said he was in his apartment and saw the victim walking up the stairway. Defendant did not see anything in the victim’s hands or any weapons. He did not see the victim reach for anything or put his hands in his pockets. Defendant stated he retrieved his machete and exited the apartment. Defendant hit the victim with the machete from the landing outside his apartment. When asked why, defendant stated, “[W]ell, I could have killed him, but I didn’t want to do that. I just wanted him to shut up, so I whacked him.” The victim stumbled back and yelled that he was going to call the police. Defendant told him to do so and returned to the interior of his apartment. Officer Albonetti questioned defendant further and learned defendant was not sure whether the victim would hurt him, but that he could have a gun and probably had a weapon even though defendant did not see a gun and had not seen the victim with a weapon in the past. Defendant did not report the victim doing or saying anything that would cause him to fear for his life.

The Defense

Defendant was the only witness in his defense and initially testified that he was getting ready to take a shower and go to bed when he asked his neighbors, who were being too loud to “please quiet down.” Defendant later admitted he actually told the woman on the patio of the offending apartment to “to shut up.” In response, she told him to “fuck off.” An argument ensued, and defendant tried to explain it was after 10:00 p.m. and too late to be on the patio and that the city had a noise ordinance. They threatened to call the police, and defendant “said to get them here.” The argument stopped, and defendant stepped back into his doorway to wait for the police to arrive. The whole argument lasted “[a]bout a minute and a half.”

While defendant waited, he saw the victim ascending the stairs, which surprised and scared him. Defendant worried the victim could hurt him and might kill him. The victim was bigger than defendant and was wearing pants with pockets that puffed out, like he might have had a pistol holder in his front pocket. Defendant thought he might have a gun. The victim’s hands were at his sides near his pockets, and defendant thought “[h]is whole stature when he came up the stairs was he looked like he was ready to draw something on me.” The victim did not speak as he approached. Defendant hit the victim with the machete when the victim was still on the stairs and within reach because he feared for his life, and it looked like the victim had a pistol in his pocket. Defendant did not stay in his apartment and lock the door because the apartment “[wa]s a trap” and “[wa]s like a cage.”

On cross-examination, defendant said he was only “mirroring” the victim when defendant told him to come upstairs because the victim told him to come downstairs. Defendant did not actually want the victim to come upstairs and had no intention of going downstairs. Defendant had the machete with him as a precautionary measure when he originally told them to shut up. That machete was reflected in the video. Defendant’s front door was open when the victim started climbing the stairs. Defendant, who was standing in or near his doorway, had set the machete on a bag of peanuts inside his apartment and reached inside to retrieve it. Defendant had only seconds and was acting on instinct. He could not retreat into his apartment because he had to keep his eyes on the victim. The victim did not swing, kick, punch, or do anything like that in defendant’s direction. Nonetheless, defendant was concerned about being attacked and “was watching any shoulder movement to draw a gun because the pockets, they keyed me to him.” He never saw a gun, but did see an abnormal bulge that did not wrinkle, which he suspected was a gun. The victim also had a mean look on his face. Defendant denied aiming for the victim’s head, but agreed he aimed at the upper body region and could have killed him.

On redirect, defendant testified that he did not follow the victim or attempt to hit him again because he hoped the threat had been neutralized and “[i]f he turned around and shot me, that was a real opportunity, but he would have to do it with an injury.” The jury provided written questions, and after an off-the-record discussion, defendant testified in response to those questions that he never told the victim to stop, nor did he warn the victim that he was armed.


The People recalled Officer Albonetti in rebuttal, who testified defendant was very calm when contacted on the evening of the incident even though he had just used deadly force with a machete. Defendant did not mention anything about the victim’s pockets, and had defendant suggested that he thought he saw a gun, that would have been extremely important to the investigation and would have been investigated further. Defendant mentioned the victim may have had a gun and when asked whether he saw a gun, defendant did not suggest he saw anything that looked like a gun or mentioned the pockets.



The Marsden Motions

Defendant argues the trial court erred in denying his two Marsden motions by conducting inadequate Marsden inquiries and denying his requests to appoint new counsel. We disagree.



June 27, 2017

Defendant made his first Marsden motion on the first day of trial. He provided the court with several written documents outlining his complaints, which we fairly summarize as complaints concerning: his counsel’s violation of his right to a speedy trial by seeking a continuance, failure to review defendant’s documents provided to counsel to assist in his defense, a disagreement about admitting a cell phone video of the incident, a disagreement concerning whether defendant should testify that his counsel lied to him and failed to provide him complete discovery, counsel’s failure to take a full statement from him, and counsel’s discarding of important documents into a milk crate.

In response, defense counsel explained that he obtained defendant’s side of the story at their first meeting and visited defendant often in preparing his defense. Counsel collected, organized, and read defendant’s voluminous materials but could not recall everything in the couple hundred pages provided. Defendant’s quizzing counsel on that content complicated the representation. The referenced video was highly prejudicial and incriminating, necessitating its exclusion if possible. Counsel redacted police reports as required, but did not conceal anything from defendant, including a confidential investigation. Major difficulties in obtaining impeachment evidence for the People’s witnesses had necessitated the requested continuances over his client’s objections, but resulted in information that could be used in furtherance of defendant’s right to a fair trial. These efforts put defendant 30 to 45 days over the 60-day time limit for a speedy trial. Counsel attempted to visit defendant the day before trial, but defendant refused the visit.

Defendant, rather than respond to counsel’s explanation, discussed a previous incompetency finding and argued the merits of his claim of self-defense. Thereafter, the court recognized defendant’s absolute right to testify and that the continuances previously granted by a different judge had been fruitful. Counsel confirmed he could competently and effectively represent defendant, he was prepared to proceed, and he did not believe there was an irreconcilable conflict that would prevent effective representation.

Ultimately, the court denied the motion finding counsel had provided adequate representation and there was not an irreconcilable conflict between appointed counsel and defendant such that ineffective assistance or representation would be likely to result.

August 1, 2017

Defendant renewed his request for substitute counsel on the day of sentencing, noting his counsel “sandbagged” him, and he did not have a fair trial. Defendant complained an investigative report showed a witness who had, on another occasion, saw the victim with “a gun around 2:00 in the morning after asking for a cigarette.” Defendant further disparaged defense counsel’s performance at trial, including alleged deficiencies in counsel’s cross-examination of witnesses, complaints concerning the scope of counsel’s direct examination of defendant, and counsel’s jury selection. Defendant also repeated his complaint about counsel’s failure to read materials given to him.

In response, his counsel explained that he did review all of defendant’s materials, that many of defendant’s issues were really appellate issues, and that in anticipation of that, counsel had already prepared a notice of appeal for him. Counsel’s direct examination of defendant was intentionally narrow and targeted toward self-defense. Finally, the testimony of the would-be witness would not have been admissible at trial. Counsel professed his readiness to proceed with sentencing. Defendant responded that his counsel was not effective and had violated his right to a speedy trial, as well as his discovery rights.

The court denied the Marsden motion finding neither inadequate representation nor irreconcilable conflict.



As explained in People v. Streeter (2012) 54 Cal.4th 205, 230: ” ‘When a defendant seeks substitution of appointed counsel pursuant to People v. Marsden, supra, 2 Cal.3d 118, “the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” ‘ [Citation.] ‘A trial court should grant a defendant’s Marsden motion only when the defendant has made “a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation.” ‘ [Citation.] [¶] ‘We review the denial of a Marsden motion for abuse of discretion.’ [Citation.] ‘Denial is not an abuse of discretion “unless the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel.” ‘ ”

“A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. [Citation.] Tactical disagreements between the defendant and his attorney do not by themselves constitute an ‘irreconcilable conflict.’ ‘When a defendant chooses to be represented by professional counsel, that counsel is “captain of the ship” and can make all but a few fundamental decisions for the defendant.’ ” (People v. Welch (1999) 20 Cal.4th 701, 728-729.)

Dissatisfaction or conflict arising from defendant’s own behavior or unfounded beliefs regarding counsel’s competency does not create irreconcilable conflict. (People v. Clark (2011) 52 Cal.4th 856, 918 [defendant cannot refuse to cooperate with otherwise competent counsel and demand substitution]; People v. Smith (1993) 6 Cal.4th 684, 688-689, 696-697 [conflict with, lack of confidence in, and not relating to counsel did not warrant substitution].) Further, to the extent there is a credibility determination between defendant’s complaints and counsel’s statements or explanations at a Marsden hearing, the trial court is ” ‘entitled to accept counsel’s explanation.’ ” (Smith, at p. 696.)

Here, the trial court did not abuse its discretion in denying both of defendant’s Marsden motions after providing defendant the opportunity to express his complaints on the record and entertaining counsel’s responses. Defendant’s counsel adequately addressed defendant’s complaints, which largely consisted of tactical disagreements and are thus not grounds for Marsden relief. (People v. Welch, supra, 20 Cal.4th at pp. 728-729.) Further, defendant has not demonstrated the trial court abused its discretion in accepting counsel’s explanation that the testimony of a witness who allegedly saw the victim with a gun on a different date would not have been admissible evidence at trial.

The trial court, having personally observed defense counsel’s performance, was in a better position to evaluate the effectiveness of counsel’s representation, and we see nothing demonstrating the trial court committed a “clear abuse of . . . discretion” in denying defendant’s motions. (People v. Smith, supra, 6 Cal.4th at p. 696 [same standard applies to Marsden motions at any stage].)


The Contrived Self-Defense Instruction

Defendant argues a myriad of errors related to the trial court’s use of CALCRIM No. 3472 contending: (1) the facts did not warrant the instruction; (2) if warranted, the standard instruction required modification; and (3) the instruction should have told the jury it was the People’s burden to prove contrivance.



Over defendant’s unspecified objection, the trial court instructed the jury with CALCRIM No. 3472, which states: “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.” The prosecutor highlighted this instruction in her closing argument, suggesting defendant wanted the victim to come upstairs so that he could teach him a lesson and had already armed himself with the machete when he was engaging in a verbal argument concerning noise. “You can’t say, hey, why don’t you come up to my apartment and then when someone does, say, now I am scared and now I am going to use deadly force on you. That is what this jury instruction is meant to prevent, someone creating a situation where they can use deadly force on somebody and claim self-defense.”

In response, defense counsel argued, “Now the prosecution wants you to believe that there was a setup here, that [defendant] somehow set up [the victim]. However, [the victim] escalated an argument to a physical fight when he went upstairs to that second floor. This is not a setup. [The victim] went up there out of his own volition, after an argument had ended.”

In rebuttal, the People asserted, the argument was not over. Defendant, who did not call the police, asked the victim to come upstairs, and rather than going inside to take a shower, he kept the fight going. “He stepped in his doorway, stayed right by his knife and left his door open. The defendant did not end this fight. The fight was not over.” The People reiterated that defendant set it up by challenging the victim to come upstairs and when the victim did as requested, attacked him with the machete.



Defendant first argues the facts of this case do not warrant the giving of CALCRIM No. 3472, and that if they do, the instruction should have been modified as contemplated by People v. Ramirez (2015) 233 Cal.App.4th 940 to recognize that provoking a nondeadly altercation does not forfeit the right to defend himself against deadly force. We disagree.

As noted in People v. Eulian (2016) 247 Cal.App.4th 1324, 1333: “In People v. Enraca (2012) 53 Cal.4th 735, 761 [137 Cal.Rptr.3d 117, 269 P.3d 543] (Enraca) our Supreme Court explained that the self-defense doctrine ‘may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical attack or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified.’ In Enraca, ‘the trial court instructed the jury on the law as we have just explained it. It gave CALJIC No. 5.55: “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.” ‘ (Ibid.) While Enraca involved the CALJIC analog to CALCRIM No. 3472, the language of the two instructions is materially the same. CALCRIM No. 3472 is therefore generally a correct statement of law.”

In Ramirez, the court held, “[a] person who contrives to start a fistfight or provoke a nondeadly quarrel does not thereby ‘forfeit[] . . . this right to live.’ ” In so finding, it recognized a limited need to modify CALCRIM No. 3472 where an attacker’s nonlethal force is met with lethal force from which the defendant may lawfully defend himself. (People v. Ramirez, supra, 233 Cal.App.4th at pp. 943, 947, 952; but see id. at pp. 953-959 [lengthy dissent of Justice Fybel arguing there was no need for a modified instruction].)

Here, we find substantial evidence supports giving the contrived self-defense instruction because the jury could have rationally concluded that defendant provoked a conflict between himself and the victim for the purpose of allowing defendant to teach the victim a lesson with his machete. Defendant, who was angry about the victim’s loud music and drug use, armed himself with a machete and then engaged in a heated and vulgar argument with the victim and his houseguests wherein defendant repeatedly urged the victim to come upstairs and bragged he could stab the victim without consequences. The victim understood defendant to be inviting him to fight and went up the stairs, unarmed and without making any further verbal or physical threats of any kind. When the victim was still on the staircase, defendant swung a machete at the victim’s upper body, striking his shoulder. Defendant never saw a weapon, nor did he see the victim reach for a weapon, although defendant speculated that the victim could have been armed with a gun or other weapon based upon a suspicious bulge in his pocket.

If the jury believed that the victim yelled at and approached defendant in response to defendant’s initial aggressive conduct (including being armed with a machete), defendant did not have the right to use deadly force to settle the potentially deadly confrontation he created. (See People v. Eulian, supra, 247 Cal.App.4th at p. 1334 [defendant did not have the right to use physical force to settle a physical confrontation he arguably created regardless of whether the victim kicked defendant and his mother in response to that conduct]; People v. Ramirez, supra, 233 Cal.App.4th at p. 947 [no defense of deadly force against contrived deadly assault].)

Putting aside defendant being armed with a deadly weapon during the confrontation, the inappropriateness of a Ramirez modification in this case is underscored by the lack of evidence in the record that the victim used any physical force, much less deadly force that defendant could respond to. The unarmed victim was struck by defendant from the landing while he was still on the stairs, his hands were at his sides, and he was not verbally threatening defendant. This is not a situation where nonlethal force is met with deadly force for which a defendant may receive a Ramirez modification.

Finally, defendant challenges the use CALCRIM No. 3472 because it does not separately instruct the jury that the People must disprove the contrivance. We are unpersuaded. That the People bore the burden on this issue was implicit in the instructions given.

Immediately before instructing the jury on contrived self-defense, the court advised, “The People have the burden of proving beyond a reasonable doubt the defendant did not act in lawful self-defense. If the People have not met this burden, you must find the defendant not guilty of assault with personal use of a deadly weapon.” (Italics added.) This burden was acknowledged in both the People’s and defense’s closing arguments. If defendant’s actions were contrived, then his self-defense would not be lawful, and thus, the jury was instructed that the People bore the burden of proof on contrivance.


The judgment is affirmed.


Robie, J.

We concur:


Blease, Acting P. J.


Renner, J.

[1] An audio recording of this call was played for the jury, but not transcribed by the reporter.

[2] For clarity, this memo uses defendant in Carly’s testimony even though she originally described a “man.” That the man was defendant is demonstrated by her later identification of the “man” as Damon.

[3] Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].

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