Filed 5/26/21 P. v. Armas CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

GREGORY DANE ARMAS,

Defendant and Appellant.

 H045686

 (Santa Clara County

 Super. Ct. No. C1518801)

A jury convicted appellant Gregory Dane Armas of second degree murder, 

misdemeanor battery on a woman with whom he had a child, and misdemeanor violation 

of a protective order. The trial court sentenced Armas to 16 years to life in prison.

On appeal, Armas asserts the trial court erred in its instruction to the jury on selfdefense. He further contends the trial court erroneously at sentencing imposed a

protective order under Penal Code section 136.2 and we should remand this matter for a 

hearing regarding his youth under People v. Franklin (2016) 63 Cal.4th 261.

For the reasons explained below, we affirm the judgment without prejudice to 

Armas filing a motion in the trial court under Penal Code section 1203.01 for the purpose 

of making a record for a future youth offender parole hearing.
2

I. FACTS AND PROCEDURAL BACKGROUND

A. Procedural Background

In June 2016, the Santa Clara County District Attorney (district attorney) filed an 

information charging Armas with the murder of Ulises Omar Denova (Pen. Code, § 187;

1

count 1), inflicting corporal injury on a partner while having a prior domestic violence 

conviction within seven years2(§ 273.5, subds. (a), (f)(1); count 2), and misdemeanor 

contempt of court for violating a protective or stay-away order (§ 166, subd. (c)(1); count 

3). All the crimes allegedly occurred on or about July 30, 2015. In count 1, the 

information further alleged that Armas personally used a deadly or dangerous weapon (a 

knife) in the commission of the murder (§ 12022, subd. (b)(1)) and intentionally and 

personally inflicted great bodily injury (§ 1203.075). 

In December 2017, with respect to count 1, the jury found Armas not guilty of first 

degree murder but guilty of second degree murder and found true both allegations. As to

count 2, the jury found Armas not guilty of inflicting or attempting to inflict corporal 

injury but guilty of the lesser included offense of domestic violence battery (§ 243, subd. 

(e)). The jury also found Armas guilty as charged on count 3. 

In February 2018, the trial court sentenced Armas to 16 years to life in prison on

count 1 and one year and six months in county jail, respectively, for the misdemeanor 

convictions on counts 2 and 3. The court deemed the county jail terms served. In 

addition, under section 136.2, the court issued a 10-year, no-contact protective order 

protecting Pricilla G., as recommended by the probation officer. 

1 Unspecified statutory references are to the Penal Code.

2 To protect the privacy of the victim alleged in count 2, we refer to her as Pricilla 

G. or Pricilla. (Cal. Rules of Court, rule 8.90(b)(4).) Moreover, we refer to Pricilla and 

Armas’s child as A.A. (Cal. Rules of Court, rule 8.90(b)(10).) 
3

B. Evidence Presented at Trial

1. Prosecution Evidence

Armas and Pricilla G. started dating in 2012, when Armas was 18 years old and 

Pricilla was 17. They had an on-and-off relationship from 2012 to 2015 and sometimes

lived together. In November 2014, Pricilla gave birth to their daughter, A.A. 

During the relationship, Armas abused Pricilla verbally, calling her “a bitch, a 

whore, [and a] slut.” He also was jealous when Pricilla was around other men. In 

addition, Armas committed several acts of domestic violence against her. In August 

2012, Armas pushed Pricilla’s face against a fence and was subsequently convicted of 

inflicting corporal injury. In December 2013, Armas punched Pricilla to the ground and 

kicked her in the side, causing fractured ribs and a black eye and was convicted in June 

2014 of misdemeanor domestic violence battery. In March 2015, while Armas and 

Pricilla were living together, Armas hit Pricilla in the face with a coffee mug, causing a 

“really big bruise on [her] face,” a “black eye,” and a “slight concussion.” After this

incident, Pricilla moved out of the house she was sharing with Armas, his mother, and his 

sister. But Armas continued to have access to Pricilla’s private Snapchat account to see 

pictures of A.A. 

One night in April 2015, Pricilla let herself into Armas’s house to ask him where 

he had been earlier. Armas was recovering from shoulder surgery at the time, having 

broken his clavicle in an automobile accident a few weeks before. Armas became angry 

when Pricilla woke him. He began “shouting” and started “coming at” her. Pricilla hit

Armas on his injured shoulder because she was afraid that “he was going to hit [her].” 

In April or May 2015, Pricilla began dating Ulises Omar Denova (the murder 

victim). Their dating relationship was brief, lasting until the end of May or beginning of 

June 2015. Armas was aware of Pricilla’s relationship with Denova and had said he 

“d[id]n’t care” that Pricilla was seeing Denova.
4

Pricilla was friends with Esteban “Steven” Moreno Flores, whom she had met in 

2012. Flores was good friends with both Armas and Denova. Armas and Pricilla

socialized with Flores and his girlfriend, Michelle Banuelos, and Armas had been to 

Banuelos’s apartment in San Jose. Flores, however, did not hang out with Armas and 

Denova simultaneously, because there “was just [] tension between [Armas and Denova]

for no reason” that Flores could discern. That tension preceded Armas’s relationship 

with Pricilla. About one month before Denova’s death in July 2015, Armas ended his 

friendship with Flores because Armas mistakenly believed that Flores had “set [] up” the 

relationship between Pricilla and Denova.3 

On June 26, 2015,4 Pricilla and Armas signed a custody agreement arranged 

through the family court that called for mediation sessions concerning Armas’s visitation 

with A.A. The mediation procedure was a precondition for visitation, but Armas did not 

attend any of the mediation appointments. In addition, Pricilla sought and obtained a nocontact protective order for herself because she did not want further contact with Armas.

Armas subsequently contacted Pricilla, including to see her “romantically” and to talk 

about their relationship. At trial, Pricilla admitted she had sex with Armas about three 

weeks before Denova was killed. She also testified that, around that time, Armas 

threatened to beat up Denova. 

On July 29 (the day before Denova was killed), Pricilla planned to meet Flores and 

Banuelos at Banuelos’s apartment to go hiking. Pricilla’s father and stepmother agreed to 

babysit A.A. As Pricilla was leaving home to drive to Banuelos’s apartment, she spoke 

to Flores who told her that Denova was at the apartment. Flores asked if Denova could 

3 At trial, Flores testified that he still considered Armas to be a friend and did not 

want to testify against him. Flores also said he wanted Denova to get justice for what 

happened to him. 

4 Unless otherwise indicated, all dates were in 2015.
5

join in their plans; Pricilla did not object. Pricilla, Flores, Banuelos, and Denova (the 

group) visited two local parks that afternoon. They ate some food and drank beer. 

Throughout the day, Armas sent Pricilla text messages, which she ignored. Armas 

wanted to see A.A., but Pricilla did not want to have any issues with Armas. In some of 

the messages Armas sent that evening, he called Pricilla derogatory names like “bitch” 

and “whore.”

At some point between the late afternoon and sundown on July 29, the group 

bought more beer and returned to Banuelos’s apartment. They listened to loud music,

drank, and played a drinking game. At Flores’s invitation, Ruben Garcia arrived and also 

played the drinking game.5 They drank a lot of alcohol and were intoxicated.

At some point that evening, Denova took his shirt off, and he and Pricilla had sex,

leaving a used condom in the bathroom sink. In addition, Pricilla posted to her Snapchat 

account a picture of her kissing Denova that evening in the apartment.

Around midnight, Pricilla and Banuelos went to buy more beer using Pricilla’s car. 

When they returned, Banuelos’s designated parking space was occupied by another car. 

Pricilla parked behind the car and left a note on her car indicating Banuelos’s address. 

None of the tires on Pricilla’s car were deflated or slashed at the time she parked it. 

Around 2:00 a.m. on July 30, someone loudly banged on the door of Banuelos’s 

apartment. Flores looked out a window to see who was at the door and saw Armas. At 

trial, Flores said he “think[s]” Armas had one arm in a sling and “thought” Armas was 

holding a handgun in “the arm that was free.”

6 Flores told Denova and Garcia not to 

open the door because there was a man outside with a gun. 

5 Garcia was a close friend of Denova and had previously socialized with Flores 

and Denova. Garcia was not friends with Armas but had met him twice at parties. 

Garcia also was not close with Pricilla, but he knew that Pricilla and Armas had been a 

couple. 

6 An orthopedic surgeon who had operated on Armas’s shoulder in March and 

April testified that Armas “would have [had] almost all of his normal function back” by 
6

Around the same time, one of Banuelos’s neighbors, B. Macias, heard loud 

knocking and people arguing outside. He looked out his apartment window and “saw a 

man standing outside the neighbor’s door.” The man “was yelling at somebody inside, 

‘Come outside, fucking pussy. You don’t fucking know me, bro. I will fucking shoot on 

you.’ ” The neighbor also heard the man say, “ ‘I will fucking kill you.’ ” Two other 

neighbors heard similar yelling. 

Pricilla went to the door thinking that the person knocking was the driver of the 

car in Banuelos’s parking spot, a neighbor who was angry about the loud music, or the 

police. She ran past Flores, Garcia, and Denova and opened the door. Garcia testified 

that he thought it was the police pounding on the door and he went into the bathroom to 

urinate. Pricilla immediately recognized Armas when she opened the door. Armas had 

his T-shirt pulled up over his nose and his arm was not in a sling. Armas pushed Pricilla,

and she tried to push him out of the doorway. Armas punched Pricilla in the face, 

causing her to fall to the ground outside and “black[] out” briefly. Armas’s friend,

Alfonso Macias, was also outside the apartment.7 Alfonso helped Pricilla get back up

and “told [Armas] not to hit the females.” 

Armas entered the apartment. According to Flores, when Armas came in, Armas

was holding (in his left hand) a “silver” knife “with a black handle,” which “looked like a 

kitchen knife.” Flores testified that Denova pushed Flores behind him, and Garcia (in 

contrast to Garcia’s own testimony) stood behind Denova and watched. 

According to Banuelos, Armas “went straight to [Denova],” and Denova “took a 

step forward to confront [Armas].” Armas and Denova screamed at each other in the 

living room as Banuelos went outside to tell Alfonso to “get [Armas] out” of there.

July 30, and “usually by three months postop, a patient [who is young and healthy] will 

have regained 95 percent of their function.” 

7 Alfonso Macias was a boyfriend of Armas’s cousin. Alfonso Macias did not 

testify at trial. Because there is a trial witness with the same last name, we refer to 

Alfonso Macias by his first name.
7

Flores similarly testified that Armas and Denova “were talking over each other at the 

same time for like three seconds.” Garcia testified that he was in the bathroom at this 

time and, from there, he heard Denova say loudly, “ ‘chill, chill, chill,’ ” “ ‘Put the knife 

down. Let’s fight,’ ” and “ ‘Let’s throw hands.’ ” Garcia also heard female voices 

yelling, “ ‘Stop.’ ” 

According to Flores, Denova “tried blocking himself” by putting his hands up in 

front of him in “a defensive stance.” Armas “shoved the knife through [Denova’s] chest” 

with “one thrust” of his left hand. Flores testified that this happened “[r]eally, really 

fast.” Armas then exited the apartment. 

Garcia testified that, as he came out of the bathroom, he saw a person wearing a Tshirt run out of the apartment. According to Flores and Garcia, neither they nor Denova 

had a knife and none of them attacked Armas before he stabbed Denova. 

When Armas ran out of the apartment, he passed Pricilla, called her a “bitch,” and 

spat on her. Although Pricilla did not see any blood on Armas’s face or hands, Armas

left drops of his blood from the apartment to the inside of his vehicle.

8 Pricilla entered 

the apartment and saw Denova standing in the living room with a bleeding stab wound in

his chest. Pricilla did not see a knife on the floor or see anyone pick up a knife. 

Banuelos testified that the entire incident—from the banging on the door to when Armas 

ran out of the apartment—“happened in like ten minutes.”

Around 2:08 a.m. on July 30, Flores and Garcia each called 911. Pricilla told 

Flores to go get her car so they could drive Denova to the hospital, but Flores discovered 

the tires on Pricilla’s car were flat. Flores and Garcia attempted to assist Denova in the 

apartment, but he died before they could transport him to a hospital. 

8 Neighbor Macias testified that he saw the same person who had been yelling at 

the door run out of the apartment. Another neighbor heard “footsteps” running fast away 

from the apartment. A third neighbor testified that he saw a man wearing a white T-shirt 

running away and being chased by another man. 
8

Banuelos initially told a police officer at the scene that the assailant “was possibly 

somebody named Dane” (i.e., Armas’s middle name), but she later lied to detectives 

about her knowledge of the assailant. Pricilla initially lied to the police by saying that

she did not know the assailant’s identity. At trial, Pricilla testified that she lied because 

she was “scared” of Armas “hurting more people” and believed he might still have been

in the area. Pricilla also called her father around when the police arrived and told him

that she thought Armas had killed Denova. Later that day, Pricilla identified Armas

during a police interview.

9

Flores left the apartment after Denova died. The police stopped Flores nearby and 

took him into custody on an unrelated warrant. When the police interviewed Flores later 

that morning, he did not identify Armas as the assailant. The police did not locate the 

knife that had killed Denova.

A month later, on August 30, Armas attempted to flee from the police by jumping 

over a fence when they approached him outside a relative’s home in San Jose. A few 

weeks after Armas was arrested, Flores identified Armas to police as the person who had 

stabbed Denova. 

Forensic pathologist Dr. Michelle Jorden testified that Denova suffered an 

approximately three-inch-deep stab wound to his chest that punctured his heart and lung. 

Denova also had an abrasion next to the stab wound that most likely was caused by the 

handle of a knife. In addition, Denova had a one-and-one quarter inch stab wound in his 

lower left abdomen. Denova also suffered two superficial slash wounds on his lateral left 

chest and back. 

Denova had several fresh or recent abrasions, bruises, and contusions on his body, 

including on the right side of his nose, the back of his right arm, and the front and back of 

his left leg. Denova’s knuckles did not appear to have any bruising, and no defensive 

9 Richard Ferry, an expert in intimate partner violence, testified about the cycle of 

violence and behaviors that are often exhibited by victims of intimate partner violence.
9

wounds were identified. Denova’s blood alcohol content measured .178 percent, which 

indicated that he was intoxicated when he died. 

On cross-examination, Dr. Jorden said “[t]here could have been a struggle” that 

caused Denova’s injuries. On re-direct examination, Dr. Jorden explained that “it’s not 

uncommon to not see defensive wounds if it’s a blitz attack, meaning the victim never 

saw it coming.” But Dr. Jorden could not give a definitive answer about the significance 

of the lack of defensive wounds “without knowing more about the circumstances.”

2. Defense Evidence

Armas testified in his own defense and was the sole defense witness. 

a. Armas’s Direct Testimony

Regarding the incident that occurred between Armas and Pricilla in March 2015,

Armas said (contrary to Pricilla’s testimony) that no coffee mug was involved and 

Pricilla had punched him in the face while he was holding A.A. Armas explained that,

earlier that day, Pricilla “had a little too much to drink” at a barbeque and she fell while 

on a backyard patio, injuring her face.

Regarding the incident that occurred at Armas’s home one night in April 2015, 

Armas said he “woke up to Pricilla punching [his] right shoulder.” Armas subsequently 

“[f]iled to press charges” against Pricilla. Thereafter, Armas and Pricilla made an 

arrangement that if Armas “didn’t press charges, she wouldn’t take [him] through 

mediation” for visitation with A.A. Later, on June 30 (Armas’s 22nd birthday), Pricilla 

texted Armas and offered him a visit with A.A. Armas accepted the offer and canceled 

his original birthday plans. 

On the evening of July 29 (the evening of the murder), Armas went to a barbeque 

at his cousin’s house. Alfonso was there; he was wearing a dark T-shirt. On Snapchat, 

Armas saw pictures of Pricilla in Banuelos’s bathroom and “in the living room with []

multiple people.” Armas could tell Pricilla had been drinking. He asked Pricilla where 

she was and if she had A.A. with her. Pricilla responded saying she was at her family’s 
10

house. Regarding A.A., Pricilla told Armas “it’s none of [his] business.” Armas had 

previously witnessed Pricilla intoxicated while with A.A. Armas discussed the situation 

with Alfonso, and Alfonso “mentioned that [they] should check to see if [A.A.] was [at 

Banuelos’s apartment].” 

Armas drove himself and Alfonso to Banuelos’s apartment in Armas’s mother’s 

SUV. Neither Armas nor Alfonso had a knife or gun. Armas drove into a parking lot 

behind the apartment and saw Pricilla’s car. Armas did not stop in the parking lot, and 

neither he nor Alfonso cut Pricilla’s tires. 

After parking on the street, Armas and Alfonso walked up to Banuelos’s 

apartment and heard loud music playing. Armas’s right (dominant) arm was in a sling, 

and he was wearing a gray sweater and jeans. Armas knocked on the door for “[a]bout 

30 seconds, probably less.” The door opened quickly, and Pricilla “charge[d] at” Armas

“in a rage” and pushed him “into the . . . front walkway.” Armas “slid[] [his] arm out of 

[his] sling,” tried “scooting [Pricilla] to the side,” and asked where A.A. was. Armas

denied that he hit Pricilla in her face. 

Armas then entered the apartment to see if A.A. was there. He had no intent to 

assault anyone at that time. Armas saw Flores and two men whom Armas did not then 

recognize.10 Armas asked Flores where A.A. was. Flores screamed and cursed at Armas, 

telling him to mind his own business and get out. Within about five seconds, Denova

“pick[ed] [Armas] up by the back of [his] knees,” causing Armas to fall on his back. 

Denova then “mount[ed] [Armas] with his knees over [] [Armas’s] waist and beg[an] to 

punch” Armas. At the same time, Garcia kicked Armas. Flores punched Armas with his 

right hand while holding a knife in his left hand. 

10 Armas testified that he had not previously met Denova. On cross-examination, 

Armas admitted he had once seen Denova at a skate park when Armas picked up Flores, 

but “[i]t was just a glance.” 
11

Eventually, Flores dropped the knife and hit Armas with both fists. Armas 

testified, “And at that point, I realized I’m getting beat really badly, and I picked up the 

knife.” He held the knife in his right hand by the hilt with the blade pointing upward.

When asked what he did with the knife, Armas said, “The knife was about . . . less than a 

foot away, and [I] picked it up and I started wielding it. I don’t recall, it all happened 

fairly quick.”11 Armas intended to “fend them off from beating [him].” At this point,

less than a minute had elapsed since Armas had entered the apartment, and Armas had 

been beaten for “probably about 30 seconds.” Denova, Flores, and Garcia then “backed 

up.” Armas dropped the knife where he was lying and exited the apartment. Armas 

testified that, during the incident, he did not suffer any cuts to his hand. But he bled from 

his nose and eyebrow and “maybe” “had a busted lip too.” 

Armas testified that he could not “recall if [he] spe[e]d-walked or . . . staggered”

away from the apartment. He then drove to Alfonso’s house, wiped the blood from his 

face with his gray sweater, went home, took a shower and pain medication, and went to 

sleep. At that point, Armas did not have any idea what, if any, injuries Denova had 

sustained. Later that morning, after conversations with a friend, Armas learned that 

Denova had died. Armas was in “[u]tter disbelief.” At his friend’s suggestion, Armas 

visited his father’s grave and then went to his uncle’s home “to be around family.”

Armas arranged to meet his mother at a hotel in downtown San Jose. During his 

trip downtown, Armas believed he was under surveillance. He got out of the car he was 

in and went to his uncle’s house by bus. Armas then drove his car to get some food. A

friend whom Armas had called (who was then living in Hollister) picked Armas up. The 

friend took Armas to a house in Hollister, where Armas stayed for about two weeks. The 

friend eventually drove Armas to his godmother’s house in San Jose, where Armas was 

11 In response to a question posed by the trial court, Armas said he believed the 

knife was a kitchen knife and that there “was a possibility it wasn’t even a kitchen knife.” 
12

arrested by the police. Armas saw the police running toward him, tried to jump over a 

fence, and cut his hand in the process. 

b. Cross-Examination

On cross-examination regarding the August 2012 incident that resulted in Armas’s 

first domestic violence conviction, Armas said he had been drinking at that time, but he 

denied that he had slapped Pricilla and shoved her face into a fence. Instead, he 

“believe[d] [he] stiff-armed” Pricilla, causing a bruise to her face. As for the incident 

that occurred in December 2013, Armas admitted that he had hit Pricilla down to the 

ground, but he denied kicking her. 

Regarding the current offense, Armas said that he did not intentionally kill 

Denova. Early in the prosecutor’s cross-examination, Armas agreed that he intentionally 

drove the knife into Denova’s upper torso while “trying to get whoever was on top of 

[himself] away from [him].” Later in the cross-examination, Armas said he “tried to 

defend [himself] by wielding [the knife]” and his “intention wasn’t to stab no one [sic].” 

Instead, he “was just trying to get them off [him].” Armas also testified, “I wasn’t 

intending to put [the knife] in [Denova]. It just -- it just happened. . . . I was trying to 

back up from being under his knees with him being mounted over me. I believe that’s 

when it happened.” 

Armas denied knowing that Pricilla and Denova were having sexual relations. 

Armas said he only knew—based on what Flores had told him—that Pricilla and Denova

were “ ‘talking’ ” or flirting. But Armas admitted thinking that sexual relations were “a 

possibility.” Armas testified that he was not jealous and “didn’t care” about Pricilla and 

Denova having a romantic relationship, “[a]s long as it didn’t involve [A.A.]” But 

Pricilla “was giving [Armas] mixed signals, because she was still seeing [him] intimately 

and things of that nature.” Armas said he was “hurt” that Pricilla was starting a 

relationship with someone else, but he too “was in a relationship of [his] own.” Armas 

denied that he ever threatened Denova during conversations with Pricilla. 
13

On July 26 (four days before Denova was killed), Armas sent several text 

messages to Pricilla, including one that read: “ ‘It’s so sad why you’re so quick to reply 

and jump for any other random ass guy.’ ” Pricilla did not reply to Armas’s texts that 

were not about A.A. 

On the evening of the murder (July 29-30), Armas drank alcohol at the barbeque. 

He was “buzzed” and had drunk approximately 10 beers by 2:00 a.m. on July 30. Armas 

was “irritated that [Pricilla] was beating around the bush and not telling [him] where [his]

daughter was.” Armas testified that A.A.’s wellbeing was his only concern that evening. 

Armas saw Pricilla’s “storyline” on Snapchat, but he did not see the photo of

Pricilla and Denova kissing in the apartment. Armas also did not see any pictures of 

A.A., and he knew that Pricilla usually dropped A.A. off at her mother’s house when she 

went out to socialize. Armas testified further that he did not know Denova was at 

Banuelos’s apartment that night, though he knew Denova and Flores were friends. 

Armas said he had “cut [Flores] out of [his] life” because Flores was “hanging out with 

her” and “contributing to Pricilla’s behavior” (i.e., her drinking).

At 9:30 p.m. on July 29, Armas sent a message to Pricilla saying: “ ‘I’m a fuck a 

bitch tonight for you.’ ” Just after midnight on July 30, Armas sent additional messages 

to Pricilla: “ ‘Watch, bitch, you stupid ass whore,’ ” and “ ‘Don’t hit me up for shit, you 

fucking groupie.’ ” Armas agreed that he was upset with Pricilla at that time, but he 

denied that it was because of what she was doing with Denova. Armas said he called 

Pricilla names like “whore” “because [he] felt that it wasn’t an appropriate time, her 

having the baby and going around doing the things she was doing.” 

At 12:20 a.m. on July 30, Armas sent more messages to Pricilla: “ ‘I seen [sic] 

your snap’ ” (i.e., a Snapchat post) and, “ ‘Just watch, bitch. Steven [Flores] and that 

bitch (Banuelos) think they’re sick. Just watch, you whore.’ ” At 12:55 a.m., Armas sent 

another message to Pricilla: “ ‘lying ass bitch at [Banuelos]’s. Just watch. I’m with my 

family. Like always with your whore ass. Just member [sic] me and [Flores] trained her 
14

there. Ha-ha, dumb bitch, LOL.’ ” Armas acknowledged that he was angry “[i]n a 

sense” when he sent this message, but he maintained that it “stem[med] from [him] not 

being [] able to see [A.A.]” A minute later, Armas sent another message: “ ‘She sucked 

my dick on that couch you’re sittin’ [sic] on, uh-uh.’ ” 

Armas denied that he was angry when he went to Banuelos’s apartment; rather he 

was “irritated” and only “[p]artially angry.” While at the front door, Armas “wanted to 

see if [A.A.] was in [the apartment]” and “wanted to ask [Pricilla about A.A.], but the 

way Pricilla went about charging [him]” he “never even got a chance to have a 

conversation with her because she became hysterical and tried clawing [him].” Armas 

denied that he or Alfonso said “ ‘Come outside, you fucking pussy. I’m going to kill 

you.’ ” Armas explained that “[w]hatever [the neighbors] feel they heard might have 

been said once the door was opened, but it wasn’t from me.” 

Armas testified that he and Alfonso did not go to the apartment with the 

“mentality” that there was “a beef or a fight.” When asked if he could explain why he 

“had [made] numerous phone calls to Alfonso Macias immediately before and 

immediately after Mr. Denova was killed,” Armas said “No,” and speculated “I could 

have went [sic] to the store.” Armas explained that Alfonso “wanted to go with [Armas] 

because [Alfonso] has a child of his own. He’s familiar with A.A. He cares for [Armas]. 

He just wanted to be there to support [Armas].” After the incident, Alfonso was not upset 

with Armas, rather “he was more worried.” Alfonso did not yell “ ‘I’m going to fucking 

kill you’ ” as they ran from the apartment. 

Armas coincidentally after Denova’s death left town to go to Hollister for a couple 

of weeks to stay with his friend, even though Armas knew he had stabbed Denova and 

was scared of being arrested. As for why Armas did not turn himself in, he said, “I was 

scared. I -- I don’t know. I can’t really explain why. I was just panicked. I was just 

scared of everything that happened.” 
15

II. DISCUSSION

Armas raises three claims of error. He contends the trial court erred by instructing 

the jury with CALCRIM No. 3472 (“Right to Self-Defense: May Not Be Contrived”). 

He further argues that the trial court erroneously imposed a protective order, under 

section 136.2, upon non-qualifying misdemeanor convictions. Finally, Armas asserts

that, if this court does not reverse his murder conviction, it should order a limited remand

for a hearing regarding his youth under People v. Franklin (2016) 63 Cal.4th 261

(Franklin). 

A. Instruction with CALCRIM No. 3472

Armas contends the trial court breached its sua sponte duty and violated his

constitutional rights to due process and to present a defense by instructing the jury with 

CALCRIM No. 3472 that he had no right to self-defense if he provoked a fight or quarrel 

to create an excuse to use force. Armas maintains the instruction “misstated the law on 

the facts of this case” because, “[i]f Armas’s intent was to use only non-deadly force, and 

the response was with deadly force, Armas regained the right to use self-defense to 

protect himself against such unlawful use of deadly force by those inside the apartment.” 

Armas asserts the error was prejudicial under any standard and this court should vacate 

his murder conviction and the attendant weapon-use enhancement. Alternatively, Armas 

argues that, if this court concludes his claim was forfeited by a lack of objection at trial, 

we should consider the merits of the claim as an exercise of our discretion or based upon 

ineffective assistance of counsel. 

The Attorney General counters that Armas forfeited his instructional error claim 

when he failed to request the “pinpoint modification” at issue in his claim. Further, the 

Attorney General contends that Armas has not demonstrated his trial counsel performed 

deficiently when he failed to request the pinpoint modification and, regardless, Armas has 

not shown he was prejudiced by any purported deficient performance. 
16

1. Additional Background

When the parties and the trial court discussed the jury instructions on the record

following the close of evidence, the court characterized the defense theory as self-defense 

and said “the defense is getting a self-defense instruction” (which it had requested).

12

 

The court said further that in its packet of proposed instructions, following CALCRIM 

No. 505 (self-defense for homicide), it “put in [CALCRIM No.] 3471, which is the 

generic instruction about mutual combat and starting a fight. [CALCRIM No.] 3472. 

And then the [CALCRIM No.] 510 instruction [regarding accidental killing] that we’ve 

just talked about. I don’t believe there was anything controversial about that that we 

haven’t already addressed.” The parties did not take issue with the trial court’s statement.

Ultimately, in accord with its prior statements, the trial court instructed the jury on 

count 1 regarding self-defense (using CALCRIM No. 505); the meaning of great bodily 

injury (using language from CALCRIM No. 3160); self-defense in the context of mutual 

combat or when the defendant starts a fight (using CALCRIM No. 3471); and that selfdefense is unavailable if contrived (using CALCRIM No. 3472). Furthermore, the court 

instructed the jury with various CALCRIM instructions regarding murder (including first 

degree murder under two theories, namely, a felony burglary/attempted burglary murder 

theory and a premeditation and deliberation theory), voluntary manslaughter (under two 

theories, heat of passion and imperfect self-defense), involuntary manslaughter, and 

voluntary intoxication. The burglary instruction for the felony murder theory stated that 

“[a] burglary was committed if the defendant entered with the intent to commit Domestic 

Violence with Injury upon [Pricilla G.] or intended to commit Assault with a Deadly 

Weapon upon Ulises Omar Denova.” 

12 The parties and court had previously discussed the jury instructions off the 

record, apparently for several hours. 
17

CALCRIM No. 3472, as given, read: “A person does not have the right to selfdefense if he or she provokes a fight or quarrel with the intent to create an excuse to use 

force.”

Similarly, the imperfect self-defense instruction for voluntary manslaughter (under 

CALCRIM No. 571) told the jury that “[i]mperfect self-defense does not apply when the 

defendant, through his own wrongful conduct, has created circumstances that justify his 

adversary’s use of force.” 

In addition, the instruction under CALCRIM No. 3471 provided that a defendant 

who engaged in mutual combat or started a fight had a right to self-defense if his 

opponent continued to fight after the defendant (1) “actually and in good faith tries to 

stop fighting,” (2) “indicates, by word or by conduct, to his opponent, in a way that a 

reasonable person would understand, that he wants to stop fighting and that he has 

stopped fighting,” and (3) “gives his opponent a chance to stop fighting.” “However, if 

the defendant used only non-deadly force, and the opponent responded with such sudden 

and deadly force that the defendant could not withdraw from the fight, then the defendant 

had the right to defend himself with deadly force and was not required to try to stop 

fighting, communicate the desire to stop to the opponent, or give the opponent a chance 

to stop fighting.” 

In his closing argument, the prosecutor contrasted felony murder with

premeditated and deliberate murder, telling the jury that “once you find [Armas] guilty 

under a felony murder theory, it’s first-degree murder. You don’t have to consider selfdefense whatsoever.”13 In the same vein regarding felony murder, the prosecutor argued, 

“if you show up at 2:00 a.m. and you’re banging on someone’s door, and you push your 

way in and you have the intent to knock your girlfriend around or if you have the intent to 

13 In accord with the prosecutor’s argument, the trial court instructed the jury:

“Provocation, heat of passion, and/or self-defense do not apply to a prosecution under a 

theory of felony murder.” 
18

feloniously assault someone inside and you enter with that intent in your head, guess 

what? You don’t get to claim self-defense. You don’t get to say: Oh, they attacked me, 

so I had to kill. I had to stab Mr. Denova in the chest. I didn’t have any choice. [¶] No. 

The law does not permit that.” The prosecutor acknowledged that “[u]nder other 

circumstances . . . there could be a self-defense claim,” but he reiterated “you are not 

allowed to use self-defense” in the context of felony murder. 

Later in his argument, the prosecutor directly addressed Armas’s claim of selfdefense and discussed Armas’s testimony. The prosecutor said, “I’m just going to flatout say [Armas’s testimony] was a complete lie. That’s what all of the other evidence 

tells us. This was a premeditated murder. He showed up with a knife and had the intent 

to kill.” 

Focusing the jurors’ attention on “the malice variety of murder,” the prosecutor 

quoted from the general self-defense instruction (CALCRIM No. 505) to assert: “Now, 

even assuming you give credit to the defendant’s testimony, which you shouldn’t, this 

instruction is included: ‘The defendant used no more force than was reasonably 

necessary.’ ” The prosecutor then maintained, “You don’t get to show up drunk at 

2:00 o’clock in the morning, force your way in when you’re looking to start trouble, 

you’re angry at your ex, and then say, ‘Oh, I -- I -- I had to use self-defense.’ No. You 

don’t get to bust your way into somebody else’s home, somebody else’s residence, . . . 

that’s their house.” The prosecutor argued further that “even crediting, for a moment, 

[Armas’s] version, . . . [t]hey see him throw Pricilla to the ground. . . . They had the right 

to use force on him. I don’t believe that happened for a minute. [¶] But just think about 

-- from their perspective -- think about what the defendant is saying. Well, he . . . pushed 

his way in after Pricilla opened the door, and then he had to stab Mr. Denova in the heart. 

[¶] And what a coincidence. . . . Oh, he’s getting attacked by these three guys. The one 

who ends up with a hole in his heart is the one who’s dating his girlfriend and [who] 

they’re both simultaneously having sex with. What a shock.” The prosecutor continued, 
19

“You don’t get to use self-defense if you provoke a fight. Basically, you don’t get to roll 

in all hot under the collar [] and bang on the door [] and with a head full of steam and 

provoke a fight with the intent to create an excuse to use force. ‘Oh, well, I had to stab 

him.’ ” 

In response, Armas’s trial counsel argued that the jurors “obviously . . . heard two 

totally different scenarios.” Counsel explained that the prosecution was using its version

of the incident to argue for felony murder and premeditated and deliberate murder. By 

contrast, the defense was arguing for “justifiable self-defense,” based on Armas’s 

testimony that he “loves his daughter and was very concerned about her environment and 

says he could not learn from Pricilla [A.A.]’s whereabouts. He and his . . . very good 

friend, Alfonso, decide to go over and find out.” Counsel emphasized that “[t]he whole 

prosecution in this case rests on [Armas] entering the apartment with a knife.” Counsel 

maintained that Flores had “no credibility” and was the only witness who “ever puts a 

knife in [Armas]’s hand.” Counsel further asserted that the group of friends “all lied.” 

Counsel argued, “It’s a big lie. It’s a serious lie. And they got together, and it was a 

cover story. And the whole motive behind it had nothing to do with fear [of Armas]. . . . 

[¶] They cooked it up to cover [for] [Flores]. And they had to cover [Flores] because 

he’s the one that brought the knife into the living room, which was the instrument that 

resulted in the death of [Denova].” 

Regarding self-defense, trial counsel said, “It all comes back to the word 

‘reasonable,’ as so much does in life, in both criminal and civil situations.” After reading 

a portion of the general self-defense instruction (CALCRIM No. 505), counsel remarked, 

“Defendant’s not required to retreat, but I don’t believe that is applicable here.” Counsel 

argued that there was no “serious question as to whether [Armas] received a beating of 

some sort in the apartment.” In addition, counsel asserted that Flores’s testimony about 

the stabbing (as compared to Armas’s testimony) was not consistent with Denova’s 

wounds and abrasions.
20

After describing the defense’s version of the incident, trial counsel returned to the 

concept of reasonableness for self-defense. Counsel asked rhetorically, “was it 

reasonable for [Armas] to pick up the knife and defend himself by lashing out with it, or 

should he have just accepted whatever was going to come?” Counsel “suggest[ed] most 

men, if assaulted by three drunk males, who are using fists and feet, would pick up the 

knife and defend themselves. And it’s very unfortunate what happened in this case. But 

the question is[,] is it reasonable to pick up the knife at that point.” 

On their second day of deliberations, the jurors found Armas not guilty of first 

degree murder but guilty of second degree murder. 

2. Legal Principles

“ ‘In criminal cases, even in the absence of a request, a trial court must instruct on 

general principles of law relevant to the issues raised by the evidence and necessary for 

the jury’s understanding of the case.’ [Citation.] That duty extends to instructions on the 

defendant’s theory of the case, ‘including instructions “as to defenses ‘ “that the 

defendant is relying on . . ., or if there is substantial evidence supportive of such a 

defense and the defense is not inconsistent with the defendant’s theory of the case.” ’ ” ’ ” 

(People v. Townsel (2016) 63 Cal.4th 25, 58 (Townsel).) Moreover, “[e]ven if the court 

has no sua sponte duty to instruct on a particular legal point, when it does choose to 

instruct, it must do so correctly.” (People v. Castillo (1997) 16 Cal.4th 1009, 1015; see 

also Townsel, at p. 58.)

A claim of instructional error is subject to our independent review. (People v. 

Posey (2004) 32 Cal.4th 193, 218.) “When an appellate court addresses a claim of jury 

misinstruction, it must assess the instructions as a whole, viewing the challenged 

instruction in context with other instructions, in order to determine if there was a 

reasonable likelihood the jury applied the challenged instruction in an impermissible 

manner.” (People v. Wilson (2008) 44 Cal.4th 758, 803; see People v. Jablonski (2006) 
21

37 Cal.4th 774, 831.) “We of course presume ‘that jurors understand and follow the 

court’s instructions.’ ” (Wilson, at p. 803.)

Regarding self-defense, “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 non-deadly confrontation and the victim responds with deadly force.” 

(People v. Eulian (2016) 247 Cal.App.4th 1324, 1334 (Eulian); see also id. at p. 1333

[citing People v. Enraca (2012) 53 Cal.4th 735, 761 (concluding that an analogous 

CALJIC instruction was supported by the evidence in the record)]; People v. Ramirez

(2015) 233 Cal.App.4th 940, 947 (Ramirez).)

Furthermore, “[t]he doctrine of imperfect self-defense cannot be invoked []. by a 

defendant whose own wrongful conduct (for example, a physical assault or commission 

of a felony) created the circumstances in which the adversary’s attack is legally justified.” 

(People v. Booker (2011) 51 Cal.4th 141, 182; see In re Christian S. (1994) 7 Cal.4th 

768, 773, fn. 1.) However, “the defense is available when the victim’s use of force 

against the defendant is unlawful, even when the defendant set in motion the chain of 

events that led the victim to attack the defendant.” (People v. Vasquez (2006) 136 

Cal.App.4th 1176, 1179–1180.)

3. Analysis

We begin our analysis of Armas’s claim by addressing the issue of forfeiture. 

Relying on Ramirez, supra, 233 Cal.App.4th at p. 949, Armas contends that we should 

consider his claim despite his lack of objection in the trial court to the giving of 

CALCRIM No. 3472. He argues that his appellate claim concerns “whether giving 

[CALCRIM No.] 3472 was accurate under the facts here” and affected his “substantial 

rights” under section 1259.14

14 Section 1259 provides, in relevant part, that an appellate court “may . . . review 

any instruction given, refused or modified, even though no objection was made thereto in 
22

The Attorney General disputes Armas’s contention and maintains that, 

notwithstanding the trial court’s sua sponte duty to instruct on a defendant’s theory of the 

case, Armas’s claim concerns a “proposed modification to CALCRIM No. 3472” that he 

was obligated to request. Further, the Attorney General asserts that Ramirez is inapposite 

because it is factually distinguishable from the present case. 

At trial, Armas did not object to any of the self-defense instructions provided to 

the jurors. On appeal, Armas contests only the instruction under CALCRIM No. 3472, 

which was provided without any modification to account for the facts presented to the 

jury. He does not challenge any of the other self-defense instructions, including the 

general self-defense instruction he requested (CALCRIM No. 505) or the instruction on 

mutual combat/initial aggression (CALCRIM No. 3471). 

“A trial court has no sua sponte duty to revise or improve upon an accurate 

statement of law without a request from counsel [citation], and 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; see also People v. Covarrubias

(2016) 1 Cal.5th 838, 873–874, 901; People v. Bolin (1998) 18 Cal.4th 297, 326.) Armas 

characterizes his claim as one challenging CALCRIM No. 3472 as an incorrect statement 

of law under the facts. We conclude, however, the claim is appropriately viewed as 

complaining about an instruction that was incomplete in light of the evidence and thus 

should have been modified. Accordingly, Armas’s failure to object to or request 

modification of an otherwise correct jury instruction forfeited his current claim of error.

Nevertheless, “[w]e may review defendant’s claim of instructional error, even 

absent objection, to the extent his substantial rights were affected.” (Townsel, supra, 63 

Cal.4th at pp. 59–60; § 1259; see also People v. Mitchell (2008) 164 Cal.App.4th 442, 

the lower court, if the substantial rights of the defendant were affected thereby.” 

(§ 1259.)
23

465 [“ ‘Substantial rights’ are equated with errors resulting in a miscarriage of justice 

under People v. Watson [(1956)] 46 Cal.2d 818.”]) In light of these principles and the 

centrality of self-defense to Armas’s case, we will consider his claim on its merits.

15 (See 

People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)

Regarding the merits, Armas relies on Ramirez to assert that CALCRIM No. 3472 

was not an accurate statement of the law on these facts.

16

 Armas argues that the 

“instruction made no exception for the scenario where the jury finds that Armas acted 

only with intent to use non-deadly force when Armas forced his way into Banuelos’s 

apartment, but Denova (the victim), Flores, and Garcia responded with deadly force by 

administering a group beating to Armas.” Armas maintains that this “is largely the 

version of the events Armas testified to at trial” and, although “Armas denied the intent to 

assault anyone when he entered the apartment, the jury was free to decide which parts of 

his testimony to believe” and the prosecutor advanced the theory that “Armas entered the 

apartment with the intent to assault [Pricilla].” Armas further asserts that the prosecutor’s 

argument and the imperfect self-defense instruction reinforced the flaw in CALCRIM 

No. 3472 as given. 

We are not persuaded by Armas’s argument that the trial court erred under 

Ramirez because that case is materially distinguishable. In Ramirez, a divided panel of 

the Fourth District Court of Appeal, Division Three addressed a challenge to CALCRIM 

No. 3472. In that case, the jury returned first-degree murder convictions against two 

brothers who were involved in a gang-related fight that culminated in the shooting death 

of a rival gang member. (Ramirez, supra, 233 Cal.App.4th at pp. 943–945.) The 

15 Because we address the merits of Armas’s instructional claim, we do not 

address Armas’s alternative claim of ineffective assistance of counsel.

16 We note that Armas does not assert that no substantial evidence supported the 

instruction or that the prosecutor committed any misconduct in argument. Instead, akin 

to Ramirez, Armas contends that, based on the evidence and argument, the instruction 

improperly foreclosed the jury from relying on his theories of self-defense or imperfect 

self-defense. 
24

defendants (Victor and Armando) and a third member of their gang (friend) drove to an 

apartment complex hoping to find a rival gang member with whom Victor and Armando

had a personal connection and who previously had interceded upon Victor’s request to 

stop the rival gang’s harassment of them. (Id. at p. 944.) The friend believed they “were 

just gonna fight,” and Armando brought a gun knowing the rival gang members carried 

weapons but he “did not set out intending to shoot anyone.” (Ibid.) At the apartment 

complex, the trio encountered about seven or eight members of the rival gang. A fight 

ensued during which Armando pulled out his gun and fatally shot one of the rival gang 

members. (Id. at pp. 944–945.)

There was evidence at trial that Victor and Armando had asked to no avail about

the rival gang member they knew, and there was conflicting evidence whether a rival 

gang member or the trio were the initial aggressors. (Ramirez, supra, 233 Cal.App.4th at 

p. 944.) Armando testified that, when the fight broke out, Victor and the friend were

“double-teamed” by rival gang members. (Id. at p. 945.) Armando saw the victim 

approach and raise his hand holding something black that looked like a gun. Armando

pulled out his gun and shot the victim. (Ibid.) Other than Armando’s testimony, no 

evidence showed the victim or any other rival gang member had a gun. Armando 

claimed he acted in self-defense and to defend his companions. (Ibid.) The defense was 

focused on Armando’s regained right of self-defense (as either an initial aggressor or 

mutual combatant) if he honestly believed the victim suddenly and unjustifiably escalated 

the fistfight to a gun fight. (Id. at pp. 946, 948.) 

The Court of Appeal in Ramirez acknowledged that CALCRIM No. 3472 “states a 

correct rule of law in appropriate circumstances.” (Ramirez, supra, 233 Cal.App.4th at 

p. 947.) But the court reversed the defendants’ convictions, concluding the instruction 

misstated the law on the facts of the case because “[t]he instructions and the prosecutor’s 

argument established as a matter of law that defendants were not entitled to imperfect 
25

self-defense if they contrived to use any force, even nondeadly force, but that was a 

question for the jury to decide on its own evaluation of the facts.” (Id. at p. 953.)

In the present case, by contrast to Ramirez, Armas claimed unequivocally that he 

went to and entered Banuelos’s apartment unarmed and only to locate his infant daughter. 

He testified that he had no intent to assault anyone at the apartment and, in fact, did not 

hit anyone. Rather, he simply picked up a knife after Flores dropped it and stabbed 

Denova after they violently attacked him. Further, consistent with Armas’s version of 

events, his trial counsel argued that “retreat” was inapplicable in this case, signifying that 

the incident was not one in which Armas had started a non-deadly fight or engaged in 

mutual combat. Trial counsel framed the case as involving “two totally different 

scenarios”: Armas’s version in which he acted reasonably in self-defense when he 

picked up the knife during a beating initiated by others, versus the prosecution’s scenario

in which Armas entered the apartment with a knife. Armas’s trial counsel challenged the 

latter scenario as faulty because it relied on uncredible witnesses who were motivated to 

lie about what had happened.

Trial counsel did not suggest in his closing argument that Armas provoked a 

nonlethal fight (as a pretext or otherwise) or that Denova, Flores, or Garcia unjustifiably 

escalated a fight using deadly force, thereby reviving Armas’s right to self-defense.

Instead, Armas’s defense rested on the assertion that Denova (joined by Flores and 

Garcia) initiated a potentially deadly confrontation and Armas reacted reasonably with 

deadly force intending only to “fend” off the beating. Moreover, although the prosecutor 

noted CALCRIM No. 3472 when arguing that self-defense does not “apply when you do 

things like the defendant did,” the prosecutor also urged the jurors to reject Armas’s 

version of events entirely, as a “complete lie,” and noted that for self-defense to apply,

Armas could not use more force than was reasonably necessary. 

Although the jury rejected the prosecution’s claim that Armas was guilty of first 

degree murder (which under the jury instructions required finding that Armas entered the 
26

apartment with the intent to commit domestic violence on Pricilla or to commit assault 

with a deadly weapon on Denova), the parties here principally staked positions that urged 

the jury to choose between two distinct scenarios: one in which Armas possessed a knife 

when he arrived at the apartment intending to use unprovoked lethal force, and another in 

which Armas did not possess a knife or attack anyone and only sought to check on his 

daughter’s wellbeing. According to the defense account, Armas picked up the knife only 

after Flores dropped it after attacking Armas in the first instance.

Simply put, no party contended that Armas intended to precipitate a non-deadly 

confrontation which escalated into deadly force due to the actions of the other 

participants. For these reasons, Ramirez is inapposite, and this was not “the rare case in 

which a defendant intended to provoke only a non-deadly confrontation and the victim 

responds with deadly force.” (Eulian, supra, 247 Cal.App.4th at p. 1334.) 

For these reasons, we conclude that the giving of CALCRIM No. 3472 under these 

facts was not error, and the jury instructions, taken as a whole, amply and properly 

addressed Armas’s self-defense claim. Therefore, Armas’s substantial rights were not 

affected by the challenged jury instruction.

B. No-Contact Protective Order

Armas asserts the trial court lacked authority to impose a protective order for

Pricilla G. at his sentencing. Armas contends that neither of his misdemeanor 

convictions—for violation of section 243, subdivision (e) (count 2) and section 166, 

subdivision (c)(1) (count 3)—is a qualifying crime for issuance of a protective order

under section 136.2, subdivision (i). Further, Armas maintains that erroneous imposition 

of a protective order amounts to an unauthorized sentence that this court can correct 

despite his lack of objection in the trial court. The Attorney General responds that 

Armas’s conviction for battery authorizes imposition of the protective order because 

Family Code section 6320 “expressly allows a court to enjoin the ‘battering’ of a 

protect[ed] party.”
27

We agree that Armas can raise his claim for the first time on appeal. (See People 

v. Robertson (2012) 208 Cal.App.4th 965, 995–996.) Nevertheless, Armas has not 

persuaded us that the trial court lacked authority to issue the protective order. 

Section 136.2, subdivision (i)(1), provides, in pertinent part, that when “a criminal 

defendant has been convicted of a crime involving domestic violence as defined . . . in 

Section 6211 of the Family Code, . . . the court, at the time of sentencing, shall consider 

issuing an order restraining the defendant from any contact with a victim of the crime.” 

In turn, Family Code section 6211 defines “[d]omestic violence” as “abuse perpetrated 

against” a “former cohabitant” or a “person with whom the respondent has had a child.” 

(Fam. Code, § 6211, subds. (b), (d).) Further, the term “abuse” in Family Code section 

6211 “means any of the following: [¶] (1) To intentionally or recklessly cause or attempt 

to cause bodily injury. [¶] (2) Sexual assault. [¶] (3) To place a person in reasonable 

apprehension of imminent serious bodily injury to that person or to another. [¶] (4) To 

engage in any behavior that has been or could be enjoined pursuant to Section 6320. [¶] 

(b) Abuse is not limited to the actual infliction of physical injury or assault.” (Fam. 

Code, § 6203.) Finally, Family Code section 6320, subdivision (a), provides, in pertinent 

part, that a court may “enjoin[] a party from . . . battering . . . the other party.” (Fam. 

Code, § 6320, subd. (a).)

On count 2, the jury convicted Armas under section 243, subdivision (e)(1), of 

misdemeanor battery on a person who is the parent of his child. Battery is defined in the 

Penal Code as “any willful and unlawful use of force or violence upon the person of 

another.” (§ 242.) The trial court instructed the jury, in relevant part, that the People had 

to prove that Armas “willfully and unlawfully touched Pricilla [] in a harmful or 

offensive manner” and “did not act in self-defense.” The court further instructed the jury 

that “[t]he slightest touching can be enough to commit a battery if it is done in a rude or 

angry way. . . . The touching does not have to cause pain or injury of any kind.” 
28

Armas argues that the term “battering” in Family Code section 6320, subdivision 

(a), does not encompass the conduct prohibited by the misdemeanor battery statute. 

Rather, he contends “ ‘battering’ ” should be interpreted based on its common dictionary 

meaning and “that term requires physical striking of someone with intent to cause injury 

or pain.” 

“Statutory interpretation is a question of law subject to de novo review. [Citation.] 

When construing a statute, we strive to ascertain and effectuate the Legislature’s intent.” 

(People v. Johnson (2020) 50 Cal.App.5th 620, 632.) “ ‘Because the statutory language 

is generally the most reliable indicator of that intent, we look first at the words 

themselves, giving them their usual and ordinary meaning.’ ” (People v. Ruiz (2018) 4 

Cal.5th 1100, 1105.) “In divining a term’s ‘ordinary meaning,’ courts regularly turn to 

general and legal dictionaries.” (De Vries v. Regents of University of California (2016) 6 

Cal.App.5th 574, 591.) Further, “[o]ne source for the usual, ordinary meaning of the 

term might be other statutes.” (Grayson Services, Inc. v. Wells Fargo Bank (2011) 199 

Cal.App.4th 563, 573.) “ ‘If the statutory language is unambiguous, then its plain 

meaning controls. If, however, the language supports more than one reasonable 

construction, then we may look to extrinsic aids, including the ostensible objects to be 

achieved and the legislative history.’ ” (Ruiz, at p. 1106.)

“Battering” in Family Code section 6320, subdivision (a), is a gerund, or -ing form 

of the verb, “batter.” Merriam-Webster defines “batter” (in law) as “to commit battery 

against another : to offensively touch or use force on a person without the person’s 

consent.” (Merriam-Webster Dict. Online (2021).)17 Similarly, in Black’s Law 

Dictionary, the definition of the noun “battery” notes the verb form “batter.” (Black’s 

Law Dict. (11th ed. 2019).) Battery is defined in Black’s Law Dictionary (for criminal 

law purposes) as “[t]he nonconsensual touching of, or use of force against, the body of 

17 <https://www.merriam-webster.com/dictionary/batter> [as of May 25, 2021], 

archived at: <https://perma.cc/YWH3-FNVT>.
29

another with the intent to cause harmful or offensive contact.” (Black’s Law Dict. (11th 

ed. 2019).) Further, for tort purposes, battery is defined as “[a] nonconsensual, 

intentional, and offensive touching of another without lawful justification, but not 

necessarily with the intent to do harm or offense as required in a criminal battery.” 

(Black’s Law Dict. (11th ed. 2019).) These definitions accord with our state’s 

misdemeanor battery statute. (See People v. Myers (1998) 61 Cal.App.4th 328, 335

[quoting People v. Rocha (1971) 3 Cal.3d 893, 899–900, fn. 12]; People v. Martinez

(1970) 3 Cal.App.3d 886, 889.)

Our task in the present case involves ascertaining and effectuating the 

Legislature’s intent with respect to enjoining a person from “battering,” and we must do 

so in view of the Legislature’s statement that “[a]buse is not limited to the actual 

infliction of physical injury or assault.” (Fam. Code, § 6203.) In our view, based on the 

text of Family Code section 6320, subdivision (a), the plain meaning of the term 

“battering” is unambiguous. Further, we conclude that “battering” is properly understood 

according to the common legal definitions of “batter” and “battery,” rather than the

ordinary nonlegal meaning. That is, under Family Code section 6320, subdivision (a),

when a court enjoins a person from “battering” another, the court precludes the person 

from willfully and unlawfully touching another person in, at least, “a rude or angry way.”

(See CALCRIM No. 960 [“Simple Battery”]; see also Phillips v. Campbell (2016) 2 

Cal.App.5th 844, 852.) Because Armas was convicted of such conduct in count 2, we 

conclude the trial court had the authority under section 136.2 to issue against Armas a 10-

year, no-contact criminal protective order protecting Pricilla.

C. Request for a Franklin Hearing

Armas was 22 years old when he murdered Denova. In February 2018, the trial 

court sentenced Armas to an indeterminate term of 16 years to life in prison. Hence, 

Armas will be entitled to a youth offender parole hearing during his 20th year of 

incarceration. (§ 3051, subd. (b)(2).)
30

In 2016, the California Supreme Court decided People v. Franklin, supra, 63 

Cal.4th 261. In Franklin, our high court “held that when a juvenile offender receives an 

indeterminate life sentence, the offender must be ‘given adequate opportunity at 

sentencing to make a record of mitigating evidence tied to his youth.’ [Citation.] The 

case was remanded to the trial court ‘for the limited purpose of determining whether [the 

offender] was afforded an adequate opportunity to make a record of information’ relevant 

to his eventual youth offender parole hearing.” (People v. Medrano (2019) 40 

Cal.App.5th 961, 967 (Medrano).)

Armas argues that we should remand his case under Franklin so that he can 

generate a record for his eventual youth offender parole hearing. Armas acknowledges 

that he did not request such a hearing at the time of his sentencing. Nevertheless, he 

contends the trial court had a sua sponte duty to hold such a hearing and the hearing 

could not be “waived through silence.” 

The Attorney General, relying on Medrano, contends that Armas’s failure to 

request a hearing at the time of his sentencing forfeited his current claim. The Attorney 

General further notes that, despite the forfeiture, Armas has an alternate remedy, in that 

“[h]e may still file a motion under section 1203.01 to make a record for a future youth 

offender parole hearing.” 

Armas fails to persuade us that Medrano should be rejected. In that case, the 

Court of Appeal decided, when “[t]he record does not indicate that [the offender’s] 

opportunity to exercise th[e] right [to present mitigating youth-related evidence at 

sentencing] was inadequate in any respect,” (Medrano, supra, 40 Cal.App.5th at p. 967)

the appropriate remedy is to “affirm without prejudice to [the offender’s] filing a motion 

‘for a Franklin proceeding under the authority of section 1203.01’ and [In re Cook (2019) 

7 Cal.5th 439 (Cook)].” (Medrano, at p. 968.)

In the present case, after the jury reached its verdict, the trial court referred the 

matter to the probation department “for a full report.” But Armas declined to be 
31

interviewed by the probation officer, and the probation report lacks any mitigating 

information relating to Armas’s youth. (See §§ 3051, 4801.) In addition, at Armas’s 

sentencing hearing, his trial counsel submitted no sentencing memorandum or any other 

information or testimony relevant to a future youth offender parole hearing. Such a 

hearing was never mentioned. 

As in Medrano, the record does not indicate that Armas “was not given an 

adequate opportunity to make a record of mitigating youth-related evidence as 

contemplated in Franklin.” (Medrano, supra, 40 Cal.App.5th at p. 967.) “Rather, it 

appears that he merely failed—whether by choice or by inadvertence—to exercise it.” 

(Ibid.) We agree with the Medrano analysis that “given the availability of the motion 

hearing described in Cook,” there is “no basis to order the same relief that was granted in 

Franklin.” (Id. at p. 968.) We further reject Armas’s argument that the trial court had a 

sua sponte duty to hold a Franklin hearing. Accordingly, we will not remand this matter 

and instead decide that Armas, if he so chooses, may seek a Franklin hearing in the trial 

court under section 1203.01. (See Medrano, at p. 968.)

III. DISPOSITION

The judgment is affirmed without prejudice to Armas’s filing a motion in the trial 

court for a Franklin proceeding under Penal Code section 1203.01. (See People v. 

Medrano (2019) 40 Cal.App.5th 961, 968; In re Cook (2019) 7 Cal.5th 439, 458–460.)
______________________________________

Danner, J.

WE CONCUR:

____________________________________

Greenwood, P.J.

____________________________________

Grover, J.

H045686

People v. Armas