Filed 1/28/21 P. v. Aviles CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE AVILES,

Defendant and Appellant.

 D076393

 (Super. Ct. No. SCS304235)

APPEAL from a judgment of the Superior Court of San Diego County, 

Roderick Ward Shelton, Judge. Affirmed.

Bruce L. Kotler, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Xavier Becerra, Attorney General, Lance E. Winters and Julie L. 

Garland, Assistant Attorneys General, Charles C. Ragland and Marvin E. 

Mizell, Deputy Attorneys General, for Plaintiff and Respondent. 

A jury convicted Jose Aviles of assaulting C.K. with a deadly weapon 

(Pen. Code,1 § 245, subd. (a)(1); count 1) and assaulting J.M. by means likely 

1 Undesignated statutory references are to the Penal Code.
2

to produce great bodily injury (§ 245, subd. (a)(4); count 2). As to count 2, it

found true an allegation that Aviles personally inflicted great bodily injury on 

J.M., who was not an accomplice (§ 1192.7, subd. (c)(8)). The court suspended 

imposition of sentence and placed Aviles on formal probation for three years

on certain terms and conditions, including that he serve 270 days in the 

sheriff’s custody.

Aviles contends the court prejudicially erred by instructing the jury

with CALCRIM No. 3471 (“Right to Self-Defense: Mutual Combat or Initial 

Aggressor”) as modified, and CALCRIM No. 3472 (“Right to Self-Defense: 

May Not Be Contrived”) because the instructions prevented the jury from 

properly considering his self-defense claims. He alternatively contends his 

trial counsel provided ineffective assistance by failing to request modification

of those instructions. Aviles also contends that his probation conditions 

regarding the search of computers and recordable media, the imposition of a 

curfew, and requiring him to report his contacts with law enforcement are 

unconstitutionally overbroad. He contends the latter condition is additionally 

vague 

The People concede the court’s modification of CALCRIM No. 3471 was 

erroneous, but argue that the error was harmless beyond a reasonable doubt. 

We agree and affirm.

FACTUAL BACKGROUND

Prosecution Case

On September 16, 2018, M.M. went to a laundromat in Chula Vista, 

California. Her father, J.M., who was 62 years old and small in stature, 

parked his car nearby. While M.M. was parking her car, Aviles drove past 

her in his pickup truck and twice honked the loud airhorn he had installed on 

his vehicle. The horn scared M.M., and her son started crying. 
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M.M. was angry and walked over to Aviles’s truck to seek an apology.

But Aviles refused to lower his window and instead “flipped off” M.M. and 

stuck out his tongue. As M.M. was walking away, Aviles got out of his 

vehicle and walked in the same direction as M.M., yelling insults and 

profanities at her. Aviles called M.M. a “welfare bitch” and other insulting 

names, said he did not “give a fuck” about M.M. or her “fucking kid,” and that

he had his own washing machine at home and did not have to wash with her

kind of people.

J.M. yelled at Aviles, “You need to respect the ladies” and, “You think 

you are so bad because you have a big truck and a dumb horn?” Aviles yelled 

profanities at J.M. J.M. testified Aviles got “real mad” and walked quickly 

toward J.M.’s car. From about five feet away, Aviles ran towards J.M. J.M.

reached into his car and removed a steering wheel lock (“the club”) that was 

approximately two-feet long and weighed three and a half pounds. J.M.

raised the club to his face to protect himself. J.M. did not try to hit Aviles 

with the club. J.M. remembered that Aviles punched him in the face once; 

however, other witnesses testified Aviles punched J.M. more than once. One 

witness said Aviles managed “[d]efinitely three good hits” on J.M. Aviles also 

took the club from J.M.

C.K., a bystander who weighed approximately 330 pounds, broke up 

the fight by pushing Aviles, who weighed 200 pounds. Aviles hit C.K. in the 

head with the club. C.K. repeatedly told Aviles to drop the club, but he 

refused. M.M. finally removed the club from Aviles while C.K. held him.

Aviles screamed at C.K. to let him go. C.K. eventually let him go. Aviles

drove away. 

J.M. was taken to the hospital, as his dentures were broken and his 

nose and mouth were bleeding. Aviles had fractured J.M.’s left cheekbone.
4

Defense Case

Aviles testified he realized during the verbal altercation with J.M. that 

“these people are heated, and I didn’t want them hurting my truck”; 

therefore, he decided to return to his truck. Aviles noticed J.M. reaching into 

his car for what Aviles thought was a gun. Aviles became scared but elected

not to run away because he thought J.M. would shoot him in the back. 

Instead, he ran towards J.M., grabbed the club while J.M. held it in midswing, and punched J.M. once. Immediately afterwards, Aviles felt someone, 

later identified as C.K., grab his throat from behind, pick him up, and drag 

him. Aviles felt terrified and hit C.K. with the club. Mere seconds passed 

from the moment Aviles rushed J.M. until C.K. subdued Aviles.

Rebuttal

The People introduced a transcript of a police officer’s telephone call 

with Aviles while Aviles was driving away from the scene. In it, Aviles never 

mentioned that he thought J.M. had a gun.

Counsels’ Arguments

The prosecutor argued to the jury: “[The witnesses] are all consistent 

about an attack, that [Aviles] was an aggressor. He wasn’t someone who was 

reacting in self-defense to [J.M.] coming after him from behind his car door. 

[J.M.] was pinned back up against his door. Self-defense may not be 

contrived. You don’t get to start a fight. You don’t get to put someone in 

danger by attacking them and then claim self-defense because they are 

protecting themselves or they are fighting back. And when you think about 

the self-defense instruction, when you think about the elements that you are 

asked to look at, think about how those apply to [J.M.] Think of them how 

they apply to the man [J.M.] standing behind his door sticking up for his 

daughter while this other man [Aviles], angry, yelling, demeaning comes 
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running around the car at him ready to fight as [J.M.] said ‘I thought [Aviles] 

was going to attack me’ and he did. Self-defense applies to [J.M.] [J.M.] is 

pulling up the club to protect himself from this person who is coming at him, 

from this person who this didn’t even give a momentary pause. [Aviles] just 

kept punching and took it out of his hands.”

As to Aviles’s attack on C.K., the prosecutor argued in closing, “[Aviles] 

swung the club at [C.K.] for a reason. And when [Aviles] acted, he realized 

that he had the present ability to apply force with a deadly weapon. He knew 

he had it in his hand. He swung it. That is why he swung it. He knew he 

had the present ability. He knew he had that weapon in his hand. He knew 

what it was. He knew it was a weapon. He knew it was a heavy metal-like 

substantial object. He had it in his hand.” 

In rebuttal, the Prosecutor argued, “[Aviles] was the aggressor. He was 

the attacker. And once he attacked [J.M.], that is it. And when [C.K.] 

stepped in, it didn’t change the scenario so much that [Aviles] now gets to 

claim self-defense against [C.K.]. Just because someone goes to protect a 

smaller person doesn’t mean you get to hit that person when you started the 

fight, when you attacked someone.”

Defense counsel reiterated to the jury the portion of CALCRIM No. 

3471 that says, “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 stop 

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

the chance to stop fighting.” Defense counsel also argued: “The person that 

brought this [club] to the fight was [J.M.] He told you he pulled it out and we 
6

will describe in a bit how he did it and what he did with this. He brought 

this, not Mr. Aviles.”

Defense counsel argued that Aviles attacked C.K. in self-defense: “And 

all of a sudden a third man [C.K.], or a third person because [Aviles] didn't 

know who it was, with great force grabs [Aviles] and starts pulling him back. 

Well, what would the reaction be there? You don't even see it. And [Aviles] 

swings back and hits [C.K.] in the head. [Aviles] was scared. He was trying 

to defend himself, something he told you.”

DISCUSSION

I. Instructional Errors

The pattern version of CALCRIM No. 3471’s opening sentence states, 

“A person who (engages in mutual combat/ [or who] starts a fight) has a right 

to self-defense only if: . . . .” Here, the court’s modified instruction to the jury 

stated the correct title: CALCRIM No. 3471 [“Right to Self-Defense: Mutual 

Combat or Initial Aggressor”]; however, the court omitted the words, “or who 

starts a fight” from the body of the instruction. 

Aviles argues, “CALCRIM No. 3471 as modified by the court did not 

instruct on [his] right to self-defense in the face of sudden use of deadly force 

by [J.M.] if the jury found that [Aviles] was the initial aggressor using only 

non-deadly force.” (Emphasis omitted.) He concedes that “there was 

substantial evidence from the prosecution witnesses that [he] was the initial 

aggressor.” He also argues the court should not have given the portion of 

CALCRIM No. 3471 on mutual combat. 

The People concede the court erred by not instructing the jury that 

Aviles was the initial aggressor, but claim there was evidence of mutual 

combat and the error was harmless beyond a reasonable doubt under 

Chapman v. California (1967) 386 U.S. 18, 24. We need not address the 
7

mutual combat issue because even assuming without deciding that there was 

no mutual combat, that would not alter our analysis.

The Court’s Instructions

Without objection, the court instructed the jury with CALCRIM Nos. 

3470, 3471 and 3472. CALCRIM No. 3470 provides that “[t]he defendant 

acted in lawful self-defense if: one, the defendant reasonably believed that he 

was in imminent danger of suffering bodily injury or was in imminent danger 

of being touched unlawfully; two, the defendant reasonably believed that the 

immediate use of force was necessary to defend against that danger; and, 

three, the defendant used no more force than was reasonably necessary to 

defend against that danger.”

The court read the modified CALCRIM No. 3471 instruction as follows: 

“A person who engages in mutual combat has a right to self-defense only if: 

one, he actually and in good faith tried to stop fighting; two, he indicated by 

word or by conduct to his opponent in a way that a reasonable person would 

understand that he wanted to stop fighting and that he had stopped fighting; 

and, three, he gave his opponent a chance to stop fighting. If the defendant 

meets these requirements, he then had a right to self-defense if the opponent 

continued to fight. 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, [or] communicate the desire to the opponent or give the opponent a 

chance to stop fighting. A fight is mutual combat when it began or continued 

by mutual consent or agreement. That agreement may be expressly stated or 

implied and must occur before the claim to self-defense arose.”
8

The court instructed the jury 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.”

Applicable Law 

“ ‘ “It is settled that in criminal cases, even in the absence of a request, 

the trial court must instruct on the general principles of law relevant to the 

issues raised by the evidence. [Citations.] The general principles of law 

governing the case are those principles closely and openly connected with the 

facts before the court, and which are necessary for the jury’s understanding of 

the case.” ’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154.) 

We review the correctness of a jury instruction de novo. (People v. 

Posey (2004) 32 Cal.4th 193, 218; People v. Bates (2019) 35 Cal.App.5th 1, 9.) 

We review the instructions as a whole, and not just parts of a particular 

instruction. (People v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on 

other grounds in People v. Reyes (1998) 19 Cal.4th 743, 756; People v. Castillo 

(1997) 16 Cal.4th 1009, 1016 [reviewing court’s duty is to look at the 

instructions as a whole, not in isolation].) A trial court has a duty to instruct 

the jury sua sponte on general principles which are closely and openly 

connected with the facts of the case. (People v. Gutierrez (2009) 45 Cal.4th 

789, 824.) In that regard, a trial court has a sua sponte duty to give 

instructions on self-defense if there is substantial evidence to support that 

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

case. (Ibid.; People v. Elize (1999) 71 Cal.App.4th 605, 615.) Substantial 

evidence for this purpose means evidence that a reasonable jury could find 

persuasive. (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8; People v. Ross 

(2007) 155 Cal.App.4th 1033, 1049-1050.)
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Self-defense requires that the defendant actually and reasonably 

believed in the need to defend, which must be objectively reasonable. The 

jury must consider all relevant circumstances to determine whether a 

reasonable person in the defendant’s position would have believed in the need 

to defend. (People v. Jefferson (2004) 119 Cal.App.4th 508, 518.) In 

exercising self-defense, however, a person may only use that force which is 

necessary in view of the nature of the attack. (People v. Clark (1982) 130 

Cal.App.3d 371, 377.) If the defendant started the fight using non-deadly 

force and the opponent suddenly escalates to deadly force, the defendant may 

defend himself or herself using deadly force. (See People v. Quach (2004) 116 

Cal.App.4th 294, 301-302.) 

We cannot set aside a judgment on the basis of instructional error 

unless, after an examination of the entire record, we conclude that the error 

has resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.) “We also 

consider the instructions as a whole, the jury’s findings, and the closing 

arguments of counsel.” (People v. Larsen (2012) 205 Cal.App.4th 810, 831.) 

Analysis

Aviles’s claim is that “assuming [he] attacked [J.M.] without 

justification, [he] had the right to self-defense if [J.M.] used sudden deadly 

force by quickly arming himself with the club and swinging at [Aviles].” But 

he misreads the modified version of CALCRIM No. 3471 given by the trial 

court here when he argues that it somehow precluded his self-defense 

argument. The basic self-defense instructions are found in CALCRIM No. 

3470, also given by the court. CALCRIM No. 3471 is a limitation on the 

otherwise applicable self-defense instruction. In its unmodified form, it tells 

the jury that a defendant cannot rely on general self-defense principles in two

situations: (1) when the defendant initiates the fight, and (2) when the fight 
10

is the result of mutual combat. In those two situations, special more limited 

rules (as explained in CALCRIM No. 3471) apply.

Here, the court should not have removed the “starts a fight” language 

from the version of CALCRIM No. 3471 that it read to the jury. There was 

abundant evidence that Aviles started the fight. But Aviles erroneously 

assumes that this omission deprived him of the opportunity to argue selfdefense if the jury found he initiated physical violence. To the contrary, 

however, if anything the omission worked to his advantage. The jury was 

never instructed that Aviles’s right to claim self-defense was limited if he 

started the fight. Without the omitted language in the CALCRIM No. 3471 

instruction, the only restriction on applying general self-defense principles 

was if the jury found that Aviles and J.M. engaged in mutual combat; there 

was no express limitation if Aviles was the aggressor. 

Of course, a reasonable jury could have recognized the incongruity of 

restricting self-defense in cases of “mutual” combat but not when the 

defendant initiated the combat. Had it done so, it may well have (correctly) 

applied CALCRIM No. 3471 to both situations. Either way, we see no way 

the improperly modified instruction prejudiced Aviles.2

In a variation on the same theme, Aviles relies on People v. Ramirez 

(2015) 233 Cal.App.4th 940 to argue the trial court erroneously instructed the 

jury with CALCRIM No. 3472 that one who provokes a fight with the intent 

2 We note that Aviles’s counsel was not deterred from arguing this theory 

to the jury: “And all the testimony is consistent. [Aviles] is walking fast, 

makes a wide turn, comes back and he rushes [J.M.] when he is at the end of 

the sidewalk. Those last four to five, six feet. The length of the car to where 

[J.M.] is.” When Aviles “rushed” toward J.M., he initiated the aggression. 

Based on the evidence and counsel’s argument, the jury was able to properly 

consider Aviles’s self-defense claim even assuming it found he started the 

fight. 
11

to create an excuse to use force does not have the right to self-defense. He 

asserts that this instruction, in concert with the prosecutor’s argument that 

Aviles had no right to self-defense because Aviles started the attack on J.M., 

prevented the jury from considering whether his use of force on J.M. and C.K. 

was justified.

In Ramirez, the court held in the context of an imperfect self-defense 

claim that on the facts presented, CALCRIM No. 3472 and the prosecution’s 

arguments erroneously required the jury to conclude that in contriving to use 

force, even to provoke only a fist fight, defendants entirely forfeited any right 

to self-defense. (Ramirez, supra, 233 Cal.App.4th at p. 953.) Aviles’s reliance 

on Ramirez is unavailing as that court also stated: “True, CALCRIM No. 

3472 states a correct rule of law in appropriate circumstances. Thus, a victim 

may respond to an attacker’s initial physical assault with a physical 

counterassault, and an attacker who provoked the fight may not in asserting 

he was injured in the fray claim self-defense against the victim’s lawful 

resistance.” (Ramirez, supra, at p. 947; People v. Eulian (2016) 247 Cal. App. 

4th 1324, 1334 [“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”].) 

Although Aviles’s own testimony that he yelled profanities and insults 

at M.M. and J.M., combined with the other witnesses’ testimony, might in 

other circumstances support an inference that he provoked the fight with the 

intent to create an excuse to use force, the undisputed evidence here 

demonstrated that he did much more. As his counsel conceded in closing 

argument, Aviles “rushed” at J.M. after J.M. reached inside his car for the 

club. This is either initiating a fight or acting in self-defense. It is not 
12

“provok[ing] a fight or quarrel with the intent to create an excuse to use 

force.” (CALCRIM No. 3472.) Even if CALCRIM No. 3472 requires 

modification in some instances, this was not one of them, and we can see no 

way Aviles was prejudiced by the giving of the instruction. Accordingly, we 

conclude the error was harmless beyond a reasonable doubt under Chapman.

Our conclusion that Aviles did not suffer prejudice from any 

instructional error disposes of Aviles’s ineffective assistance of counsel claim.

II. Probation Conditions

Aviles challenges three of his probation conditions. During the 

pendency of this appeal, this court addressed similar challenges in a case 

dealing with mandatory supervision. We pointed out that such challenges 

“ordinarily must be raised in the trial court, and if they are not, appellate 

review of those conditions is forfeited. [Citation.] The one exception to this 

rule involves facial constitutional challenges. [Citation.] The forfeiture rule 

does not apply in such a case because a facial constitutional challenge 

‘ “present[s] [a] ‘pure question[ ] of law that can be resolved without reference 

to the particular sentencing record developed in the trial court’ ” ’ [citation]

and ‘does not require scrutiny of individual facts and circumstances but 

instead requires the review of abstract and generalized legal concepts—a 

task that is well suited to the role of an appellate court.’ ” (People v. Brand

(2021) ___ Cal.App.5th ___ [2021 WL 79614].) 

As defense counsel did not object to any of the probation conditions, the 

challenges are forfeited unless they are facial constitutional challenges that 

do not require scrutiny of the individual facts and circumstances of Aviles’s

case under the California Supreme Court’s case law set forth in In re Sheena 

K. (2007) 40 Cal.4th 875, 887-889.
13

Condition 6.n states that Aviles shall “[s]ubmit person, vehicle, 

residence, property, personal effects, computers, and recordable media, [and]

to search at any time with or without a warrant, and with or without 

reasonable cause, when required by [probation officer] or law enforcement 

officer.” With respect to this condition, Aviles challenges only the provisions 

relating to his electronic devices, namely, “computers, and recordable media.” 

Aviles’s constitutional challenge to the electronics search condition is 

based on an overbreadth theory: “This is a simple no-tech assault case. . . . 

Appellant’s crime has nothing to do with any use of computers; and, there is 

nothing in the record to suggest that there is a compelling state interest in 

being able to search appellant’s computers or recordable media in order to 

supervise him for assault.” This argument establishes Aviles’s challenge is 

not based on facial constitutional grounds, but instead depends on the facts of 

his case. The challenge is accordingly forfeited.

Condition 6.e states that Aviles shall “[c]omply with a curfew if so 

directed by the [probation officer].” Aviles argues that this condition is 

constitutionally overbroad. However, Aviles’s overbreadth argument focuses 

on the specific facts of his case: “The incident occurred in broad daylight.

And, there is nothing in the record indicating appellant is more prone to 

commit crimes at night, or that a curfew is required to supervise him.”

Because Aviles bases his constitutional challenge on the specific facts of his 

case, it is not a facial challenge, and therefore it is forfeited because Aviles 

did not raise it in the trial court. (In re Sheena K., supra, 40 Cal.4th at pp. 

887-889.)

Condition 6.k states that Aviles shall “[p]rovide true name, address, 

and date of birth if contacted by law enforcement. Report contact or arrest in 

writing to the [probation officer] within 7 days. Include the date of 
14

contact/arrest, charges, if any, and the name of the law enforcement agency.” 

Aviles argues that this condition is vague and overbroad because “[a]s 

written, the terms include any unqualified and undefined contact with law 

enforcement, imposing an undue burden on him. It might reasonably be seen 

as including insignificant and completely lawful conduct that should not be 

the source of a violation, including consensual encounters. Furthermore, the 

condition induces appellant to forego exercising his constitutional rights to 

free association and travel by avoiding innocent situations wherein he would

come into ‘contact’ with or be ‘contacted’ by law enforcement, thus triggering 

his obligation under the condition.” As the People concede, this challenge 

does not depend on the specific facts of Aviles’s case, and accordingly Aviles 

did not forfeit this facial constitutional challenge. (People v. Brand, supra,

___ Cal.App.5th ___ [2021 WL 79614, *3].)

In rejecting a similar challenge to this probation condition, this court in 

Brand concluded that “the report-contact condition, when read in its entirety, 

would indicate to a reasonable person that [defendant] is not required to 

report casual, random interactions with law enforcement officers. Instead, 

the type of law enforcement contacts that must be reported are those in 

which [defendant] is questioned by law enforcement officers and is required 

to give identifying information, such as when he has been a witness to a 

crime or is suspected of possible involvement in a crime. Accordingly, we 

reject [defendant’s] contention that the report-contact condition is 

unconstitutionally vague and overbroad.” (People v. Brand, supra, ___ 

Cal.App.5th ___ [2021 WL 79614, *6].) We adopt Brand’s reasoning to reject 

Aviles’s challenge in this case.
15

DISPOSITION

The judgment is affirmed.

O’ROURKE, Acting P. J.

WE CONCUR:

AARON, J.

DATO, J.