People v. Trigeros, 2020 Cal. App. Unpub. LEXIS 1013 (CA Ct. App. 4th 2020)
Court of Appeal of California, Fourth Appellate District, Division Two
February 13, 2020, Opinion Filed
This case involves a series of physically violent confrontations between a couple who shared a child and lived together, each of whom used force on the other. The male in the relationship was ultimately charged with a variety of violent crimes, to which he raised the legal defense of self-defense. (He was also charged with certain weapons crimes, outside the scope of this summary.) The defendant was convicted and sentenced to 14 years in prison.
The appellant argues on appeal that the trial judge incorrectly instructed the jury as to his claim of self-defense. Specifically, he cites error in the court’s use of jury instruction CALCRIM 3472 Right to Self-Defense: May Not Be Contrived. In effect, that jury instruction deals with what California refers to as “contrived self-defense,” but which most states with similar provisions refer to as “provocation with intent” as distinguished from “initial aggressor.”
An initial aggressor is not privileged to claim self-defense as a justification for their use of force against another, unless they act to regain their innocence. They can regain their innocence by withdrawing from the fight and communicating their desire to stop fighting to the other party. If the other party then pursues and re-initiates the fight, the other party has become the initial aggressor in a second fight, and the party who regained innocence has regained self-defense for purposes of that second fight.
Many states distinguish the initial aggressor from a provoker, however, and California is among these states. In this model an initial aggressor is distinguished from a provoker. An initial aggressor is the first to threaten or use force. A provoker is not the first to threaten or use force. Rather a provoker is someone who provokes the other person into being the initial aggressor. “Go ahead, throw the first punch, I dare you!” A “provoker with intent” is someone who provokes such a confrontation for the specific purpose of then using force against the other person.
Whereas an initial aggressor can regain innocence by withdrawal and communication, as described, states that recognize the distinction between initial aggressor and provocation with intent do not allow the provoker with intent to regain their innocence in this manner. The provoker with intent owns that fight, period.
The only exception would be if the provoker with intent triggers a mere non-deadly force fight, but then the other party escalates to deadly force. In that circumstance the law sees two different fights, an initial non-deadly force fight and a second deadly force fight. The provoker with intent loses self-defense with respect to the first non-deadly force fight, but retains self-defense for the second deadly force fight.
The conviction of the Appellant is affirmed.
2020 Cal. App. Unpub. LEXIS 1013
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH BURT TRIGEROS, Defendant and Appellant.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall D. Einhorn and Elizabeth M. Kuchar, for Plaintiff and Respondent.
A jury convicted Joseph Burt Trigeros of one count of inflicting injury on the mother of his child (Pen. Code, 273.5, subd. (a)),  one count of criminal threats against his wife ( 422), and one count of being a felon in possession of ammunition ( 30305, subd. (a)). In a bifurcated proceeding, the trial court found true the sentencing enhancement allegations of one on-bail enhancement ( 12022.1), two prison priors ( 667.5, subd. (b)), and one prior serious felony conviction ( 667, subd. (a)). The court stayed the one-year sentences for the prison priors. Trigeros was sentenced to 14 years four months in state prison. 
On appeal, Trigeros contends that the trial court prejudicially erred by instructing the jury with CALCRIM No. 3472 on contrived self-defense, because the instruction misstates the law and was not supported by sufficient evidence. He further contends that the case should be remanded for resentencing under Senate Bill No. 1393 (2017-2018 Reg. Sess.) to permit the trial court to exercise its newly granted discretion to strike or dismiss the serious felony conviction enhancement. The parties agree that the two one-year prior prison term enhancements should be stricken in light of Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590). We agree about resentencing for the serious felony conviction enhancement and striking the prior prison term enhancements. We otherwise affirm.
A. January 2015 Incident with L.P.
In 2014 and 2015, L.P. and Trigeros were involved in a romantic relationship and lived together at Trigeros’s house.  They had a son together who was born sometime in January 2014. Trigeros became paranoid that L.P. was cheating on him and accused her of doing so on multiple occasions. Trigeros smashed several of L.P.’s phones.
On either January 15 or 18, 2015, Trigeros and L.P. got into an argument about whether L.P. was cheating on Trigeros.  Trigeros was standing on the bed removing clothing from a closet, and L.P. was sitting on the bed while holding her son. Trigeros wanted to see L.P.’s cell phone and accused L.P. of hiding the SIM card for the phone in her mouth. Trigeros demanded that L.P. open her mouth, but she refused. Trigeros stuck his finger into her mouth. L.P. intentionally bit the finger. She told Trigeros to stop and that she did not want his finger in her mouth. Trigeros yelled and cursed and had a little blood on his hand. Trigeros then punched L.P. in her left eye, causing L.P. to have a black eye.  Trigeros grabbed the child from L.P. and pushed her onto the floor. L.P. reached for her son and asked Trigeros to return the child to her.
Trigeros accused L.P. of trying to feed the baby hair or clothing. Trigeros also at some point accused L.P. of giving the child medication, which she denied doing. On two separate occasions around the same period of time that Trigeros punched L.P. in the face, Trigeros also pulled a knife on her. During one of those incidents, Trigeros’s brother was present.
On January 18, 2015, L.P. walked to a nearby police station and flagged down a police car outside of the station. L.P. appeared upset and told the police officer that she had been kicked out of the house. The officer noticed that L.P. had a black eye and a bruise on her leg and took photographs of those injuries. L.P. reported that Trigeros gave her the black eye three days before when she and Trigeros had gotten into an argument after Trigeros was removing clothing from a closet. Trigeros broke her cell phone because he was jealous of other guys with whom she was communicating. He then put his finger in her mouth searching for the SIM card to her cell phone that he thought she was hiding. L.P. “accidentally” bit his finger. Trigeros punched her while she was holding her son. L.P. denied giving her son medication or putting hair or children’s clothing into his mouth. L.P. also reported that Trigeros had pulled a knife out on her while his brother was present.
The officer investigated and spoke with Trigeros outside of Trigeros’s house.
Trigeros admitted to sticking his finger in L.P.’s mouth and to striking her in the eye after she bit his finger. He claimed that he struck her as a reflexive response to being bitten. Trigeros stuck his finger into L.P.’s mouth because he believed that she was hiding pieces of cloth, hair, or medication in her mouth that he thought she was feeding to their son.
B. August 2015 Incident with J.S.
Trigeros married J.S. in 1998, but they never lived together. Sometime in
July 2015, J.S. visited Trigeros at his house in Moreno Valley, California. Trigeros and J.S. had not seen or spoken to each other in approximately 15 years. J.S. traveled over three hours by bus with her three-year-old son. J.S. expected to stay with Trigeros for a couple of weeks. Trigeros paid for the bus tickets for J.S. and her son, and J.S. could not afford to buy return tickets. While J.S. was staying with Trigeros, Trigeros showed her five different handguns to impress her or to “show them off.”
Approximately one week before August 14, 2015, Trigeros started “acting weird” and “paranoid,” particularly when J.S. talked to others on her cell phone or Trigeros perceived that she “was doing something behind his back on [her] phone.” J.S. stopped using her cell phone in an attempt to appease him, but it did not help. By August 14, 2015, the mood between Trigeros and J.S. was “cold,” and they were not talking.
Early that morning, at approximately 1:00 a.m. or 2:00 a.m., Trigeros told J.S. to leave his house. J.S. was in the kitchen, and her son was awake and lying on the couch, where she could see him. J.S. and Trigeros had been fighting with one another throughout the previous day. J.S. could not remember how she responded to Trigeros’s request for her to leave at that moment. But she had previously responded to his requests for her to leave by saying that she would do so if he would buy the tickets, which he did not do. Trigeros went into the master bedroom and came out holding a pellet gun by his side. J.S. thought it was a firearm, because it looked like Trigeros’s other guns. J.S. described Trigeros as acting “more psycho” than usual, so she feared for her son’s safety.
When Trigeros had the gun, J.S. was sitting on the couch with her son.
Trigeros spoke somewhat incoherently, telling J.S. that the house was the “last resting place.” She understood him to mean that “everybody was going to die” in that house. Trigeros asked J.S. whom she wanted him to kill first-herself or her son. J.S. attempted to get Trigeros to calm down, but she did not feel as though anything she said made a difference.
About 20 to 25 minutes after Trigeros appeared with the gun, J.S. called 911. Trigeros was lying on the couch with his eyes closed, but he was awake. J.S. went into the garage to make the call. She told the 911 operator: “He’s threatening to shoot me and my 3-year-old.” She then provided the operator with Trigeros’s home address, said “[p]lease hurry,” and hung up the phone.
Riverside County Sheriff’s Deputies arrived five minutes later and pulled J.S. outside after she answered the door. Her son was sleeping inside. Trigeros was awake and standing up when J.S. went outside. Trigeros exited the house approximately five minutes later. Deputies searched the house for weapons and found a pellet gun on the kitchen counter and live ammunition in the master bedroom.
A. Jury Instruction on Contrived Self-Defense
Trigeros argues that the trial court prejudicially erred by instructing the jury with CALCRIM No. 3472. He contends that CALCRIM No. 3472 misstates the law of self- defense and that there was not sufficient evidence to give the instruction. Both contentions lack merit. 
- Standard of Review
“A trial court must instruct the jury on every theory that is supported by substantial evidence, that is, evidence that would allow a reasonable jury to make a determination in accordance with the theory presented under the proper standard of proof. [Citation.] We review the trial court’s decision de novo. In so doing, we must determine whether there was indeed sufficient evidence to support the giving of [the] instruction.” (People v. Cole (2004) 33 Cal.4th 1158, 1206.)
We independently review whether a jury instruction correctly states the law. (People v. Lua (2017) 10 Cal.App.5th 1004, 1013.) “Review of the adequacy of instructions is based on whether the trial court ‘fully and fairly instructed on the applicable law.'” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
- CALCRIM No. 3472-Contrived Self-Defense
The trial court instructed the jury on contrived self-defense with CALCRIM No. 3472, which provides: “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 instruction was given over defense counsel’s objection that there was not sufficient evidence that Trigeros provoked a fight with L.P. with the intent to create an excuse to punch her in the face. Trigeros did not object that the instruction misstated the law.
Relying on People v. Ramirez (2015) 233 Cal.App.4th 940 (Ramirez), Trigeros contends that CALCRIM No. 3472 misstates the law on self-defense by “incorrectly suggest[ing] that a defendant forgoes the right to defend himself any time he intentionally incites a victim’s attack.” In Ramirez, the defendants contrived to start a fistfight-that is, a nondeadly quarrel-and their opponent responded with deadly force by allegedly pulling out a gun. (Ramirez, supra, at pp. 944-945.) Ramirez held that CALCRIM No. 3472 misstated the law in that situation by giving the jury the wrong impression that the person who intended to start a nondeadly fight could not defend himself against the responsive deadly force and thus “‘forfeit[ed] . . . his right to live.'” (Ramirez, at p. 943.)
Here, L.P. responded to Trigeros’s provocation by biting Trigeros’s finger. That response did not amount to deadly force. Ramirez, supra, 233 Cal.App.4th 940 is therefore inapplicable.
Trigeros urges us to extend the holding of Ramirez to a situation like this in which the adversary purportedly responds to a nondeadly attack with nondeadly but (allegedly) unlawful force. He contends that the jury could have concluded that L.P.’s use of force against Trigeros was unreasonable and therefore unlawful in response to Trigeros’s “simple battery” against her. We are not persuaded. There is no authority for extending Ramirez to situations in which the adversary responds to a nondeadly attack by using nondeadly but lawful force. Moreover, the language contained in CALCRIM No. 3472 is nearly identical to instructions approved by our Supreme Court in People v. Enraca (2012) 53 Cal.4th 735, 761 (Enraca) and People v. Hinshaw (1924) 194 Cal. 1, 26. Trigeros offers no basis for us to distinguish CALCRIM No. 3472 from those instructions. Nor do we see any. (People v. Eulian (2016) 247 Cal.App.4th 1324, 1333 [concluding that “CALCRIM No. 3472 is . . . generally a correct statement of law” because of its material similarity to the instruction approved in Enraca].)
For all of these reasons, we conclude that CALCRIM No. 3472 correctly stated the law on contrived self-defense in this case.
- Substantial Evidence Supported Giving CALCRIM No. 3472
Trigeros further contends that CALCRIM No. 3472 should not have been given because there was no evidence that Trigeros provoked a fight with L.P. with the intent to create an excuse to use force. We disagree.
Trigeros argues that the only evidence of his intent showed that he was searching for something in L.P.’s mouth-whether a SIM card, pieces of cloth, or hair. While there was substantial evidence that his intent was to search for some object allegedly hidden in
L.P.’s mouth, there also was substantial evidence supporting the theory that Trigeros stuck his finger into L.P.’s mouth to create an excuse to use additional force against her. From the evidence that Trigeros shoved his finger into L.P.’s mouth and refused to remove it upon her insistence, the jury could reasonably infer that Trigeros intended to incite L.P. to use force in response to Trigeros’s aggression so that he had an excuse to use additional force against her. Direct evidence of Trigeros’s intent to provoke a fight to create an excuse to use force was not needed. (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1380 [“Criminal intent will rarely be shown by direct evidence and must frequently be inferred from a defendant’s conduct”], superseded by statute on another ground as stated in People v. Levesque (1995) 35 Cal.App.4th 530, 536-537.) Because there was substantial evidence from which the jury could conclude that Trigeros provoked a fight with L.P. with the intent to create an excuse to use additional force, we conclude that there was a sufficient factual basis for the trial court to instruct the jury concerning contrived self-defense under CALCRIM No. 3472.
B. Prior Prison Term Enhancements
Effective January 1, 2020, while this appeal was pending, Senate Bill No. 136 amended section 667.5, subdivision (b), to restrict the circumstances under which a one-year sentence enhancement may be imposed for a prior prison term. Trigeros received two one-year prior prison term enhancements based on prison terms served for convictions for voluntary manslaughter and for being a felon in possession of a firearm. Those enhancements were both stayed. Section 667.5, subdivision (b), now allows for the imposition of a one-year prior prison term enhancement if the prior prison term was served for a sexually violent offense. The parties agree and this court has already held that Senate Bill No. 136 applies retroactively to those like Trigeros whose sentences were not final at the time that Senate Bill No. 136 became effective. (People v. Chubbuck
(2019) 43 Cal.App.5th 1, 13-14.) We therefore remand so that the trial court can strike the two one-year prior prison term enhancements in light of Senate Bill No. 136 and otherwise resentence Trigeros.
C. Discretion to Strike Prior Serious Felony Enhancement
“Senate Bill No. 1393 amended section 667, subdivision (a), and section 1385, subdivision (b), as of January 1, 2019, to allow a court to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, 2, eff. Jan. 1, 2019.)” (People v. Zamora (2019) 35 Cal.App.5th 200, 208 (Zamora).) At the time of Trigeros’s sentencing, the trial court did not have authority to strike prior serious felony convictions. (Ibid.) The parties agree, and this court has already held that this change in the law “applies retroactively to those like [Trigeros] whose sentences were not final when Senate Bill No. 1393 became effective.” (Ibid.; People v. Garcia (2018) 28 Cal.App.5th 961, 973.)
The People nevertheless oppose remand. They contend that “resentencing is unnecessary here because the record clearly indicates that the trial court would not have exercised its discretion to strike the prior serious felony enhancement in any event” based on the trial court’s denial of Trigeros’s motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and comments the judge made at both that hearing and the sentencing hearing.
In general, “when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228; People v. Metcalf (1996) 47 Cal.App.4th 248, 252 [“Since the trial court affirmatively indicated, and erroneously believed, that it had no discretion to strike a prior offense, we must ‘remand the case to the trial court to permit it to resentence defendant with an accurate view of its powers'”].) That is because “[d]efendants are entitled to sentencing decisions made in the exercise of the ‘informed discretion’ of the sentencing court.” (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.)
However, as the parties agree, a remand for resentencing is unnecessary “if the record shows that the sentencing court clearly indicated that it would not, in any event, have exercised its discretion” to reach a different result. Romero, supra, 13 Cal.4th at p. 530, fn. 13.) “The trial court need not have specifically stated at sentencing it would not strike the enhancement if it had the discretion to do so. Rather, we review the trial court’s statements and sentencing decisions to infer what its intent would have been.” (People v. Jones (2019) 32 Cal.App.5th 267, 273 (Jones).) We join the other appellate courts that have applied this rule to determining whether resentencing is necessary under Senate Bill No. 1393. (Jones, supra, at pp. 272-273; People v. Johnson (2019) 32 Cal.App.5th 26, 68-69; see also People v. McDaniels (2018) 22 Cal.App.5th 420, 424-427 [applying same standard to resentencing under Sen. Bill No. 620, which granted the trial court new discretion to strike firearm enhancements under 12022.5 & 12022.53]; People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [applying same standard to newly gained discretion to strike three strikes prior convictions per Romero].)
Here, the record does not clearly indicate that the trial court would have declined to exercise its discretion to strike the prior serious felony conviction. Denial of a Romero motion does not necessarily indicate how a trial court would exercise its discretion under section 1385, subdivision (b), to strike the prior serious felony conviction for sentencing purposes. In the present case, when the trial court denied the Romero motion, it concluded after weighing numerous factors that Trigeros fell “clearly within the spirit of the [T]hree [S]trikes law.” While that conclusion implies that the judge would not be sympathetic to imposing a shorter sentence by striking the prior serious felony conviction, we do not view that sentencing decision in isolation. Instead, we review the entirety of the trial court’s decisions in sentencing Trigeros to determine if those decisions clearly indicate that the trial court would not have exercised its discretion.
The trial court did not otherwise indicate that it was unwilling to impose a more lenient sentence than the maximum allowed. (Cf. Jones, supra, 32 Cal.App.5th at pp. 274-275 [“Besides not exercising its discretion for leniency when it could have, the trial court made clear its intention to impose the most stringent sentence it could justifiably impose”].) Rather, the trial court imposed the midterm sentence for all three offenses. In addition, the court expressly stated that it was staying the two one-year sentences for the prison priors under section 667.5, subdivision (b), because it did not have discretion to strike the five-year sentence for the prior serious felony conviction. In response to defense counsel’s request that the court stay the five-year sentence, the prosecutor stated: “I believe it’s my understanding that the nickel prior cannot be stricken pursuant to [section 1385, subdivision] (b). And then it needs to run consecutive subject to [section 667, subdivision] (a)(1).” The court responded: “What I’ll do is, I’ll-with respect to [section 667.5, subdivision] (b) priors. [¶] I’ll impose and permanently stay those pursuant to [section] 1385. [¶] But I will impose [as] required by law [section 667, subdivision] (a) prior which is five years consecutive.” That tradeoff certainly suggests that the trial court may have stricken the five-year sentence for the prior serious felony conviction if it could have. In any event, it does not clearly indicate that the trial court would not have exercised that discretion. We reject the People’s contention that the trial court would not have stricken the prior serious felony conviction given the opportunity because the trial court did not also stay the two-year on-bail enhancement under section 12022.1, subdivision (b), which it could have. (People v.Meloney (2003) 30 Cal.4th 1145, 1156.) But defense counsel did not argue that the on-bail enhancement should be stayed too and included in the prior prison enhancement tradeoff for the five-year prior serious felony conviction enhancement.
Regardless of the trial court’s failure to stay the two-year on-bail enhancement, given the trial court’s imposition of midterm sentences for all three offenses and its willingness to stay the prison prior enhancement because it could not stay the serious prior felony conviction enhancement, we cannot say that the record clearly indicates how the trial court would exercise its discretion to strike that enhancement for sentencing purposes. Moreover, the trial court can no longer stay the prison prior enhancements as a tradeoff for not striking the serious felony conviction enhancement. We therefore remand so that the trial court can exercise its newly gained discretion at sentencing as to whether to dismiss or strike the serious felony enhancement.
The sentence is vacated and the matter is remanded to the trial court to: (1) strike the two one-year prison prior enhancements under section 667.5, subdivision (b); and (2) exercise its discretion under section 667, subdivision (a), and section 1385, subdivision (b), to determine whether to dismiss or strike the serious felony conviction enhancement for sentencing purposes. Following resentencing, the court shall amend the abstract of judgment and forward the amended abstract to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
- Further undesignated statutory references are to the Penal Code.
- On the same day that Trigeros was sentenced in this case, he received a sentence of four years eight months in another case (People v. Trigeros (Super. Ct. San Diego County, 2018, No. RIF1501158)), to be served consecutively with the sentence imposed in this case. Trigeros was resentenced in People v. Trigeros, supra, No. RIF1501158 after we reversed his sentence in a prior appeal. (People v. Trigeros (June 20, 2017, E065345) [nonpub. opn.].) Trigeros does not raise any issues about the resentencing from that case, so we do not discuss it.
- At Trigeros’s request, the court held a hearing pursuant to Evidence Code section 701 to determine if L.P. was competent to act as a witness and concluded that she was. At that hearing, L.P. admitted to having a learning disability, which she said only impaired her ability to do math, but she then denied having any learning disability at trial.
L.P.’s aunt, R.J., testified at trial and described L.P. as being “mentally slow.” R.J. explained that L.P. often gets confused and has difficulty putting events into sequential order. But R.J. had never known L.P. to “make things up” that were not true.
- L.P. testified that the incident occurred on January 18, 2015. However, when she reported the incident to a police officer on that day, she told the officer that the incident occurred three days before. She also testified on cross-examination that she lied to the officer about the date of the incident.
- L.P. actually testified to two different sequences of these events-that Trigeros punched her first and then stuck his finger in her mouth and that he put his finger in her mouth first before he punched her. In addition, the parties stipulated that L.P. told the police officer that Trigeros punched her after she bit his finger and after he put his finger inside of her mouth.
- The People argue that Trigeros forfeited the claim that CALCRIM No. 3472 misstates the law by not objecting on that basis in the trial court and by not requesting a modification of the instruction. In general, a defendant “‘may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.'” (People v. Covarrubias (2016) 1 Cal.5th 838, 901.) However, that forfeiture rule does not apply when “the trial court gives an instruction that is an incorrect statement of the law.” (People v. Hudson (2006) 38 Cal.4th 1002, 1012.) Because we must determine the issue on appeal-that is, whether the instruction is a correct statement of the law-to determine whether the challenge was forfeited, we address the issue on the merits.