1

Filed 3/29/22 P. v. Collins CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Butte)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

LOVALLE DAMON COLLINS,

Defendant and Appellant.

C093566

(Super. Ct. No. 20CF02015)

Defendant Lovalle Damon Collins and his girlfriend were visiting a resident at a 

senior living apartment complex in Oroville. At some point, their continued presence 

was no longer welcome and the onsite manager, G., asked them to leave. As G. escorted 

them off the property, in an admittedly annoying manner, defendant punched him once in 

the face, causing serious injuries to his jaw. 
2

Defendant was convicted by jury of one count of battery causing serious bodily 

injury. In a bifurcated proceeding, the trial court found defendant was previously 

convicted of a strike offense within the meaning of the three strikes law (Pen. Code, 

§§ 667, subds. (b)-(i), 1170.12)1 which also triggered the five-year prior serious felony 

enhancement (§ 667, subd. (a)(1)). Following a successful motion to strike defendant’s 

prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 

497, the trial court sentenced him to serve seven years in state prison.

On appeal, defendant asserts two claims of instructional error. He contends the 

trial court prejudicially erred and violated his constitutional right to present a defense by 

omitting a bracketed portion of CALCRIM No. 3470 that would have defined “unlawful 

touching” in connection with his self-defense claim, and also omitting a bracketed 

portion of CALCRIM No. 917 that would have informed the jury that it may consider 

whether G. “spoke or acted in a way that threatened [defendant] with immediate harm or 

an unlawful touching.” Because defense counsel did not object to the latter omission, 

defendant argues in the alternative that counsel’s failure in this regard amounted to 

ineffective assistance of counsel. Finally, defendant asserts the cumulative prejudice 

flowing from these instructional errors requires reversal. 

We need not decide the merits of these instructional error claims. Assuming, 

without deciding, that the trial court should have instructed the jury in the manner 

asserted in this appeal, we conclude defendant was not deprived of his constitutional right 

to present a defense. Moreover, viewing the assumed errors cumulatively, there is no 

reasonable likelihood of a more favorable result had the jury been so instructed. We 

therefore affirm the judgment. 

1 Undesignated statutory references are to the Penal Code. 
3

FACTS

On the morning of February 2, 2020, G. was at his apartment preparing snacks and 

getting ready to watch the game. He lived and worked at a senior living apartment 

complex as the onsite manager. One of his duties was to make sure people who were not 

welcome at the apartment complex left the property. Sometime before 11:00 a.m., G. 

was called over to a resident’s apartment to perform this duty. Defendant and his 

girlfriend were the unwelcome visitors.

Defendant testified that he and his girlfriend were visiting a friend at the apartment 

complex. According to defendant, he was unaware his visit was unwelcome until G. 

arrived and told him to leave. Defendant “was kind of mad” and told G. he was “a guest” 

and would not leave unless his host “wanted [him] to leave.” When the host confirmed 

she did not want him there, defendant grabbed his backpack and left the apartment with 

his girlfriend. 

G. followed them through the parking lot on foot to make sure they completely left 

the complex’s property. As G. described during his testimony, he was engaging in “kind 

of a yappy-dog routine,” following behind them at a distance of three or four steps with 

his hands in his pockets while repeating: “Please leave the property. Please leave the 

property.” G. acknowledged his goal was “to annoy them enough that they leave.” 

Defendant acknowledged he was “getting angry and annoyed” by G.’s conduct. 

Defendant’s girlfriend led the walk through the parking lot. Defendant followed 

her, but stopped at least twice to turn around and say something to G. According to G., 

these comments from defendant were “derogatory in nature.” Defendant testified that he 

simply told G.: “Get away from me. I’m leaving.” Each time defendant stopped, G. also 

stopped and repeated: “Please leave the property.” After defendant’s girlfriend reached 

the property line, defendant turned around a final time and punched G. in the face. 

According to G.’s testimony, he was still “a couple feet behind” when defendant 

turned around and punched him; G. “didn’t see it coming.” Defendant’s version was very 
4

different. He testified that G. took “a couple steps” to close the distance between them 

and was “right there in [defendant’s] face.” Defendant claimed he told G., “leave me 

alone,” but G. “just kept pressing the issue,” so defendant “hit him one time.” Asked 

why he hit G., Defendant answered: “Because when he was in my face, he started 

waiving [sic] his arms around yelling Get off the property. And I -- I didn’t know what 

he was doing. I got scared. And so I just hit him to back him up.” Defendant also 

testified that he felt threatened by G. and believed “he was potentially going to touch” 

defendant at the time he punched him. 

After punching G. in the face, defendant followed his girlfriend off of the property 

as G. pulled out his cell phone to call 911. Emergency medical personnel arrived and 

transported G. to the hospital. He was ultimately transported to a different hospital to see 

a neurosurgeon. While G.’s injuries did not require surgery, he was placed on a “broken 

jaw protocol” due to “several cracks to the cheekbone.” 

Defendant was contacted by a police officer a short distance from the apartment 

complex. As defendant acknowledged during his testimony at trial, he admitted punching 

G. in the face, but did not tell the officer that he was afraid of G. when he did so. 

DISCUSSION

Both of the instructional error claims asserted in this appeal relate to defendant’s 

defense at trial. As already indicated, defendant claimed he punched G. in self-defense. 

The jury was accurately instructed on this defense with CALCRIM No. 3470. As 

delivered to the jury in this case, this instruction provides:

“Self-defense is a defense to battery causing serious bodily injury, simple battery, 

and simple assault.

“The defendant is not guilty of those crimes if the defendant used force against the 

other person in lawful self-defense. The 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 
5

reasonably believed that the immediate use of force was necessary to defend against that 

danger; and three, the defendant used no more force than what was reasonably necessary 

to defend against that danger.

“Belief in future harm is not sufficient [n]o matter how great or how likely the 

harm is believed to be. The defendant must have believed there was imminent danger of 

bodily injury to himself or imminent danger that he would be touched unlawfully.

“The defendant’s belief must have been reasonable and he must have acted 

because of that belief. The defendant is only entitled to use that amount of force that a 

reasonable person would believe is necessary in the same situation.

“If the defendant used more force than was reasonable, the defendant did not act in 

lawful self-defense. When deciding whether the defendant’s beliefs were reasonable, 

consider all the . . . circumstances as they were known to and appeared to the defendant 

and consider what a reasonable person in a similar situation with similar knowledge 

would have believed.

“If the defendant’s beliefs were reasonable, the danger does not need to have 

actually existed.

“A defendant is not required to retreat. He or she is entitled to stand his or her 

ground and defend himself or herself and [if] reasonably necessary to pursue an assailant 

until the danger has passed. This is so even if safety could have been achieved by 

retr[eat]ing.

“The People have the burden of proving beyond a reasonable doubt that the 

defendant did not act in lawful self-defense. If the People have not met this burden, you 

must find the defendant not guilty of battery causing serious bodily injury.” 

The jury was also instructed with CALCRIM No. 3472: “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.” 
6

Finally, immediately before these standard self-defense instructions, the jury was 

instructed with the following portion of CALCRIM No. 917: “Words, no matter how 

offensive, and acts that are not threatening are not enough to justify an assault or battery.” 

Defendant contends the trial court prejudicially erred and violated his federal 

constitutional right to present a defense by declining to instruct the jury with the 

following bracketed portion of CALCRIM No. 3470: “The slightest touching can be 

unlawful if it is done in a rude or angry way. Making contact with another person, 

including through his or her clothing, is enough. The touching does not have to cause 

pain or injury of any kind.” (CALCRIM No. 3470.) The trial court denied defense 

counsel’s request to provide this bracketed portion of the instruction because “there was 

no evidence of any touching between the parties” prior to the punch that was thrown by 

defendant. Defendant argues there did not need to be any actual touching between the 

parties in order to provide this portion of the instruction, but rather, only a reasonable 

belief in defendant’s mind that an unlawful touching was imminent. According to 

defendant, he “was entitled to throw a single punch in self-defense if he was in 

reasonable fear of suffering an imminent unlawful touching, which he testified was the 

case.” 

As a preliminary matter, defendant’s argument goes too far. To be sure, if 

defendant reasonably believed an unlawful touching was imminent, he was entitled to use 

a reasonable amount of force to defend himself from that perceived imminent threat. He 

was not automatically entitled to “throw a single punch.” It was for the jury to decide 

whether the punch defendant threw in this case was a reasonable amount of force under 

the circumstances. The jury was so instructed. 

However, assuming the bracketed portion of CALCRIM No. 3470 should have 

been given, we cannot conclude such an omission deprived defendant of the right to 

present a defense. At most, it “adversely affected the defense, but it did not deprive 

[defendant] of the right to present one.” (People v. Humphrey (1996) 13 Cal.4th 1073, 
7

1089; see also People v. Spencer (1996) 51 Cal.App.4th 1208, 1221.) Indeed, the jury 

was already instructed with the definition of unlawful touching as part of CALCRIM No. 

960’s definition of simple battery: “The slightest touching can be enough to commit a 

battery if it is done in a rude or angry way. Making contact with another person, 

including through his or her clothing, is enough. The touching does not have to cause 

pain or injury of any kind.” Repeating this definition in connection with the self-defense 

instruction would have been helpful to the defense, but we presume the jury is fully 

capable of correlating instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) And 

defense counsel’s closing argument to the jury made the very argument of which 

defendant now claims he was deprived, i.e., that defendant reasonably believed he was in 

imminent danger of being touched unlawfully by G., a “substantially larger,” “taller, 

heavier” man, who was following closely behind defendant with his hands in his pockets, 

and who ultimately got very close to defendant, causing him to reasonably believe an 

unlawful touching was imminent. Accordingly, we conclude any assumed error in 

omitting the bracketed portion of the instruction must be assessed for prejudice under the 

standard of People v. Watson (1956) 46 Cal.2d 818. 

The same is true with respect to defendant’s second assertion of instructional

error. Defendant argues the trial court should have instructed the jury with a bracketed 

portion of CALCRIM No. 917 that would have informed the jury that it may consider 

whether G. “spoke or acted in a way that threatened [defendant] with immediate harm or 

an unlawful touching.” As already indicated, defense counsel did not object to this 

omission. “Failure to object to instructional error forfeits the issue on appeal unless the 

error affects defendant’s substantial rights. [Citations.] The question is whether the error 

resulted in a miscarriage of justice under [Watson]. [Citation.]” (People v. Anderson

(2007) 152 Cal.App.4th 919, 927; see also People v. Battle (2011) 198 Cal.App.4th 50, 

64-65.) But even without the failure to object, as with defendant’s first instructional error 
8

claim, we cannot conclude such an omission deprived defendant of the right to present a 

defense. Thus, Watson would be the appropriate standard in any event. 

Assuming, without deciding, that both of defendant’s instructional error claims 

have merit, and viewing these assumed errors cumulatively, we conclude there is no 

reasonable likelihood of a more favorable result had the jury been instructed with the 

bracketed portions of CALCRIM Nos. 3470 and 917. 

First, the trial in this case was largely a credibility contest between defendant and 

G. The jury appears to have believed G.’s account of events. That version of the 

interaction in the parking lot does not support a self-defense claim. 

Second, even if the jury believed defendant’s account of events, specifically, that 

G. closed the distance between them and was waving his arms and yelling in defendant’s 

face immediately before defendant threw the punch, this does not mean that punch was 

thrown in self-defense. If those facts were believed, the jury might well have concluded 

defendant reasonably believed unlawful contact was imminent. However, as we have 

explained, the jury was already informed that unlawful contact could mean “[t]he 

slightest touching . . . if it is done in a rude or angry way,” and that such contact could 

occur “through . . . clothing” and did not need to “cause pain or injury of any kind.” So 

the jury already had what it needed to make this assessment. This lends some support to 

the conclusion that the jury simply did not believe defendant’s version of events. But 

even assuming the jury would have concluded defendant reasonably believed an unlawful 

touching was imminent had this language been repeated in CALCRIM No. 3470, we 

cannot conclude there is a reasonable probability the jury would have reached the 

separate and equally important conclusion that punching G. in the face was a reasonable 

amount of force to use in these circumstances. 

Finally, while the bracketed portion of CALCRIM No. 917 would have told the 

jury to specifically consider whether G. “spoke or acted in a way that threatened 

[defendant] with immediate harm or an unlawful touching,” the jury was already told to 
9

“consider all the . . . circumstances as they were known to and appeared to the defendant

. . . .” (Italics added.) These circumstances included G.’s words and actions in the 

parking lot. Nor does the remainder of CALCRIM No. 917 suggest otherwise. It simply

states: “Words, no matter how offensive, and acts that are not threatening, are not 

enough to justify an assault or battery.” This is an accurate statement of the law. And it 

does not suggest that the jury should not consider G.’s words or actions, as part of the 

totality of circumstances, in determining whether defendant acted in self-defense. We 

therefore presume the jury considered G.’s words and actions in the parking lot and 

concluded they either did not support a reasonable belief in the need to use force in selfdefense, or if they did, the amount of force used by defendant was not reasonable under 

the circumstances. 

Because the claimed instructional errors did not prejudice defendant, either 

individually or cumulatively, we must affirm the judgment entered against him in this 

case. 

DISPOSITION

The judgment is affirmed. 

 /s/

HOCH, Acting P. J.

We concur:

 /s/

KRAUSE, J.

 /s/

EARL, J.