1

Filed 9/20/24 P. v. Chavez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

PEDRO CHAVEZ,

Defendant and Appellant.

C099194

(Super. Ct. No. 19FE011573)

Defendant Pedro Chavez punched N.D. multiple times in the face, causing injuries

to her nose and mouth. N.D. testified that defendant had restrained her, raped her, and 

tried to suffocate her. When she bit him to get away, he punched her repeatedly. 

Defendant described a different version of events, saying he awoke to find N.D. on top of 

him. He tried to push her off, she bit his fingers, and he punched her.

A jury acquitted defendant of rape, assault with intent to commit rape, and false 

imprisonment, but convicted him of assault by means of force likely to produce great 

bodily injury. The jury found true an allegation that defendant inflicted great bodily 

injury during the assault, but it also found not true the allegation that the crime involved

great violence or other circumstances disclosing a high degree of cruelty, viciousness, or 

callousness. The trial court sentenced defendant to five years in state prison.
2

Defendant now contends (1) the trial court should have instructed the jury sua 

sponte on his right to stand his ground and not retreat from an assault, and also his right 

to use reasonable force to prevent the commission of a felony; and (2) the trial court 

abused its discretion in imposing the great bodily injury enhancement without being 

aware of its discretion to dismiss the enhancement, and in concluding that defendant was 

ineligible for probation without finding that he willfully inflicted great bodily injury.

Concluding that defendant’s contentions are forfeited or lack merit, we will affirm 

the judgment.

BACKGROUND

On the evening of May 27, 2019, defendant went to the house of his sisters

Daniela and Gabriela. Gabriela was staying at her boyfriend’s house that night, so 

defendant planned to sleep in her room. Earlier in the day, Daniela went to San Francisco 

with her boyfriend and others, including N.D., a friend she met at Sacramento City 

College. They returned to the house at around midnight. Defendant was in Gabriela’s 

room when they arrived.

When Daniela and her group got to the house, they started playing music, hanging 

out, and drinking beer. Defendant eventually emerged from Gabriela’s room and joined 

them in the living room. Defendant, who was 18 at the time, drank three or four beers 

and became intoxicated. N.D., who was 19 years old at the time, had a couple of beers.

At some point, Daniela and her boyfriend got into an argument and went outside. 

N.D. came outside and said she was going to sleep in Gabriela’s room with defendant. 

N.D. explained, “I’ll sleep by his feet so it’s not weird or anything.” Daniela went inside 

to check on defendant, who was “passed out” on the couch. She nudged him awake and 

asked if he was okay, and he asked her to get him a pillow. N.D. pulled on defendant’s 

leg and suggested they go to his sister’s room, saying she would take care of him. 

Defendant got up and accompanied N.D. to Gabriela’s room. Daniela followed them 
3

to the room and saw defendant lie down on the bed. N.D. told her, “I’ll take care of 

him.” Daniela went back outside.

Daniela, N.D. and defendant testified consistently regarding the foregoing events. 

But N.D. and defendant testified differently regarding what happened next in Gabriela’s 

bedroom.

According to N.D., she got on the bed with defendant and immediately fell asleep. 

When she woke up, defendant was on top of her with his pants down. He was choking 

her with one hand and taking her pants down with the other while pinning her to the bed. 

Defendant inserted his penis into her vagina as she told him to stop. N.D. then rolled off 

the bed and tried to leave, but defendant pinned her to a wall. N.D. tried to yell for help 

but defendant covered her mouth with his hand. N.D. bit his hand, and defendant 

responded by punching her in the nose and mouth, causing her to fall to the floor. N.D. 

tried to get up and run to the door, but defendant blocked her path and dragged her by the 

hair to the ground. He choked her with both hands, punched her several more times, and 

used a pillow or cloth to try to suffocate her.

In contrast to N.D.’s account of events, defendant testified that when he woke up, 

N.D. was on top of him. She was straddling him, his shorts and boxers were around his 

knees, and he felt her on top of his penis. Defendant told her to stop and tried to push her 

off of him, but N.D. said to wait because she was almost done. When defendant again 

tried to push her off of him, his hand pushed into her mouth, and N.D. bit his fingers. 

Defendant reacted by punching her several times in the face. N.D. fell off of the bed and 

hit the wall on her way to the floor. Defendant got up, stood there in shock for a moment, 

and then put his pants back on.

Daniela testified that she and her boyfriend went to bed in her room sometime 

between 4 and 5 a.m. Ten to 20 minutes later, Daniela heard a thump and went to her 

sister’s room to find out what it was. N.D. was on the ground in front of the bed. 
4

She had blood on her and defendant “looked confused, pale, scared, crying.” Daniela

told defendant to leave and he did so.

A physical examination of N.D. revealed a nasal bone fracture as well as facial 

bruising and abrasions. During a subsequent sexual assault examination, N.D. described 

a sexual assault. The nurse practitioner who performed the exam testified that certain 

injuries were consistent with being punched and also with possible strangulation. The 

nurse did not observe evidence of a sexual assault.

The jury convicted defendant of assault by means of force likely to produce great 

bodily injury, and found that he inflicted great bodily injury during the assault. The trial 

court sentenced defendant to five years in state prison.

DISCUSSION

I

Defendant claims the trial court should have instructed the jury, sua sponte, 

regarding (a) his right to stand his ground and not retreat from an assault, and (b) his right 

to use reasonable force to prevent the commission of a felony.

A

Defendant claims the trial court should have instructed sua sponte on his right to 

stand his ground and not retreat from an assault.

“A trial court must instruct on the general principles of law applicable 

to a case” and possesses a sua sponte duty to instruct “ ‘on any defense, including selfdefense, . . . when there is substantial evidence supporting the defense, and the defendant 

is either relying on the defense or the defense is not inconsistent with the defendant’s 

theory of the case. [Citation.]’ [Citation.]” (People v. Bates (2019) 35 Cal.App.5th 1, 9

(Bates).)

Here, with respect to the crime of assault by means of force likely to produce great 

bodily injury, defendant claimed self-defense, and the trial court instructed the jury with 

CALCRIM No. 3470 regarding self-defense. It also instructed the jury with CALCRIM 
5

No. 3472, that a person may not provoke a fight or quarrel with the intent to create an 

excuse to use force. In addition, the trial court instructed the jury with CALCRIM 

No. 3474, that the right to use force in self-defense exists only as long as the danger 

reasonably appears to exist.

Defendant does not assert on appeal that the foregoing self-defense instructions 

were incorrect. Instead, he claims the trial court should have supplemented them with the 

following bracketed portion of CALCRIM No. 3470: “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 retreating.” (CALCRIM No. 3470.)

But defendant did not request that the bracketed language be included in the 

instruction, or object when it was not included. “ ‘Generally, a party may not complain 

on appeal that an instruction correct in law and responsive to the evidence was too 

general or incomplete unless the party has requested appropriate clarifying or amplifying 

language.’ [Citation.]” (People v. Guiuan (1998) 18 Cal.4th 558, 570 (Guiuan); see

People v. Landry (2016) 2 Cal.5th 52, 99-100.) Defendant’s assertion that this optional 

bracketed language should have been included in the instruction given to the jury is 

therefore forfeited.

B

Defendant also argues the trial court had a sua sponte duty to instruct on his right 

to use reasonable force to prevent the commission of a felony. Specifically, he argues the 

trial court was required to supplement the standard self-defense instructions with 

CALCRIM No. 505, the pattern jury instruction on self-defense in a homicide case. 

(Bates, supra, 35 Cal.App.5th at p. 7.)

Defendant cites no authority holding that a trial court has a sua sponte duty to 

instruct with CALCRIM No. 505 in a non-homicide case like this one, and we know of 

no such duty. To the extent defendant argues the jury would have benefitted from certain 
6

language found in CALCRIM No. 505 and not in CALCRIM No. 3470, it was incumbent 

upon him to request such clarifying or amplifying language. (Guiuan, supra, 18 Cal.4th 

at p. 570.) He did not do so.

The claim of instructional error fails to the extent it assumed a sua sponte duty; it 

is otherwise forfeited.

II

Defendant further contends the trial court abused its discretion at sentencing 

by (a) imposing the great bodily injury enhancement without being aware of its discretion 

to dismiss the enhancement, and (b) concluding that defendant was ineligible for 

probation without finding that he willfully inflicted great bodily injury. These 

contentions are also forfeited.

A

We begin with the contention that the trial court imposed the great bodily injury 

enhancement without being aware of its discretion to dismiss the enhancement.

Effective January 1, 2022, Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate 

Bill 81) amended Penal Code1 section 1385 to provide that a trial court shall dismiss 

an enhancement if it is in the furtherance of justice to do so, except if dismissal is 

prohibited by an initiative statute. (§ 1385, subd. (c)(1), (2); People v. Mendoza (2023) 

88 Cal.App.5th 287, 295.) In exercising its discretion, the trial court shall give great 

weight to evidence offered by the defendant that enumerated mitigating circumstances 

are present. (Mendoza, at p. 295.) One such mitigating circumstance is that the 

current offense is connected to prior victimization or childhood trauma. (§ 1385, 

subd. (c)(2)(E).) Subdivision (c)(4) adds that the enumerated mitigating circumstances 

are not exclusive. (§ 1385, subd. (c)(4).)

1 Undesignated statutory references are to the Penal Code.
7

Defendant argues the probation report indicated he experienced childhood trauma 

related to being sexually assaulted by a female family member. He also cites his young 

age at the time of the offense, his status as a first-time offender, the jury’s finding that 

the crime did not involve great violence or a high degree of cruelty, viciousness, or 

callousness, and the fact that the three-year great bodily injury enhancement more 

than doubled defendant’s sentence because the trial court imposed the low term of 

two years for the assault. According to defendant, “[t]he sentencing 

transcript . . . reflect the trial court was unaware of any aspect of its authority” to 

dismiss the enhancement.

Defendant was sentenced on August 4, 2023, more than a year and a half after 

the effective date of Senate Bill 81. But his trial counsel did not object to the 

imposition of the enhancement or ask that it be dismissed under section 1385, 

subdivision (c). The failure to do so forfeited the contention on appeal. (People v. 

Carmony (2004) 33 Cal.4th 367, 373-374; People v. Scott (1994) 9 Cal.4th 331, 351-354

(Scott).)

B

We turn next to defendant’s contention that the trial court determined defendant 

was ineligible for probation without finding that he willfully inflicted great bodily injury.

“A defendant is presumptively ineligible for probation under section 1203, 

subdivision (e)(3), if he or she ‘willfully inflicted great bodily injury or torture in the 

perpetration of the crime.’ ” (People v. Lewis (2004) 120 Cal.App.4th 837, 852 (Lewis).) 

“[T]he word ‘willful’ requires the defendant’s intent to cause great bodily injury or 

torture, not merely that the crime resulted in great bodily injury or torture.” (Id. at p. 

853.)

Here, the jury determined that defendant inflicted great bodily injury. However, 

whether he intended to cause such injury, making him presumptively ineligible for 

probation, was a matter for the trial court to determine at the sentencing hearing. (Lewis,
8

supra, 120 Cal.App.4th at p. 854.) The probation officer and both parties appear to have 

assumed that section 1203, subdivision (e)(3) applied. The trial court specifically found 

“defendant is not eligible for probation, pursuant to Section 1203(e)(3) unless the Court 

finds unusual circumstances.” The trial court then cited rule 4.413(c) of the California 

Rules of Court, listing factors that may indicate an unusual case overcoming the 

presumption of ineligibility, and noted that “defendant is youthful and has no significant 

prior criminal history.” The trial court concluded “the nature and circumstances of this 

crime as compared with other instances of the same crime aggravate against a grant of 

probation,” citing N.D.’s significant injuries. The trial court denied probation.

Defendant argues the trial court abused its discretion by concluding he was 

presumptively ineligible for probation without making the required willfulness finding. 

However, his trial counsel did not object or point out that such a finding was required in 

order for section 1203, subdivision (e)(3) to apply. The failure to do so forfeited the 

contention on appeal. (See Scott, supra, 9 Cal.4th at pp. 351-354.)

DISPOSITION

The judgment is affirmed.

 /S/

MAURO, J.

We concur:

 /S/

ROBIE, Acting P. J.

 /S/

DUARTE, J.