Filed 1/28/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

VICTOR ESPUDO RAMIREZ, JR., et al.,

 Defendants and Appellants.

 G049935

 (Super. Ct. No. RIF148423)

 O P I N I O N

Appeal from a judgment of the Superior Court of Riverside County, 

Christian F. Thierbach, Judge. Reversed.

Leslie Conrad, under appointment by the Court of Appeal, for Defendant 

and Appellant Victor Ramirez.

Eric Multhaup, under appointment by the Court of Appeal, for Defendant 

and Appellant Armando Ramirez, Jr.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and 

Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
2

A jury convicted Victor Espudo Ramirez, Jr., and his brother Armando 

Apolinar Ramirez of first degree murder (Pen. Code, § 187, subd. (a); all further statutory 

references are to this code) and active participation in a criminal street gang (§ 186.22, 

subd. (a)). The jury found true a gang special circumstance allegation on the murder 

count (§ 190.2, subd. (a)(22)), and also found true a gang enhancement (§ 186.22, 

subd. (b)) and firearm enhancement (§ 12022.53, subds. (d), (e)) on that count. 

Defendants contend the trial court erroneously prevented the jury from 

considering their self-defense claim by instructing the jury categorically that “[a] person 

does not have the right to self-defense if he provokes a fight or quarrel with the intent to 

create an excuse to use force.” (CALCRIM No. 3472.) The prosecutor argued 

repeatedly based on the plain terms of this instruction that even if the jury believed 

defendants sought to provoke only a fistfight, their bare intent “to use force” as stated in 

the instruction — even nondeadly fisticuffs — meant they forfeited a claim of imperfect 

self-defense. We hold the instruction misstated the law. A person who contrives to start 

a fistfight or provoke a nondeadly quarrel does not thereby “forfeit[] his right to live.” 

(People v. Conkling (1896) 111 Cal. 616, 626 (Conkling). Instead, he may defend 

himself “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 

(Vasquez).) 

The trial court sentenced defendants to life in prison without the possibility 

of parole, plus a term of 25 years to life for the firearm use. Based on the instructional

error, we reverse the judgment.

I

FACTUAL BACKGROUND

In January 2009, defendants were members of the street gang known as La 

Sierra Brown Knights (La Sierra). Armando lived with his mother, her boyfriend, 

Armando’s sister, his fiancée, and his son. For several months, members of one of 
3

La Sierra’s rivals, the street gang known as Tiny Winos, would drive by Armando’s 

house, flashing gang signs and guns. On two occasions they shot at the house.

On January 27, 2009, Victor called his friend, Steven Arevalos, who was 

also a member of La Sierra, to try to put an end to the harassment. Arevalos agreed to 

accompany Victor and Armando, believing they were “just gonna go over there and just 

confront them and, if anything, we were just gonna fight.” Arevalos agreed to drive but 

vetoed Armando’s request to bring a gun, even though Arevalos believed their 

adversaries would be armed. Armando seemed to comply with Arevalos’s request, 

returning into his home to stash his .38-caliber handgun, but Armando thought better of 

leaving the gun behind because he knew firsthand the Tiny Winos gang carried weapons, 

having shot up his house. He put the gun in his sweatshirt pocket and returned to 

Arevalos’s car. He did not set out intending to shoot anyone. 

Armando and Victor hoped they could find Mario, a Tiny Winos member 

who earlier had interceded at Victor’s request to stop the harassment. At that time, 

Armando and Victor’s mother had been seeing Mario’s uncle, but the pair no longer 

dated.

Defendants and Arevalos drove to an apartment complex to look for Mario. 

Instead, they found Ruben Rivera and six or seven other Tiny Winos members in front of 

the building. Members of the group later acknowledged at trial that defendants asked to 

no avail for “Mario,” and that a Tiny Winos gang member may have thrown the first 

punch. 

Other testimony suggested Armando, Victor, and Arevalos confronted the 

group aggressively, demanding to know, “Do you have a problem with La Sierra,” and 

issuing the gang challenge, “Where you from?” A fistfight broke out “instaneous[ly].” 

The prosecution’s gang expert explained at trial that in a confrontation between members 

of rival gangs, “[W]hen they’re asking you where you’re from, they’re specifically asking 

you what gang you claim, and that’s the purpose of it.” The question is known as “hitting 
4

up” a rival. The expert testified that in his experience, “[M]ore often than not, when 

somebody gets hit up by a rival gang member, there’s generally going to be some kind of 

violence, at the minimum, a fistfight.”

Armando testified that as soon as the fight broke out, Arevalos and Victor

were each double-teamed by Tiny Winos assailants. “Two or three” guys were on Victor 

and Arevalos had “two or three guys on him.” Armando stepped back from the fighting 

as Rivera walked toward the group. Armando testified “it looked like [Rivera] had 

something black in his hand,” and as Rivera approached, he raised his hand, holding an 

object that “looked like a gun.” Armando pulled his gun from his sweatshirt pocket and 

fatally shot Rivera. The fighting stopped, and defendants and Arevalos sped away in 

their car. Other than Armando’s testimony, no evidence showed Rivera or the any of the 

other Tiny Winos members had a gun that night. Armando claimed he reacted in selfdefense and to defend his companions.

II

DISCUSSION

Defendants contend the trial court’s instructions prevented the jury from 

considering their self-defense claim, an error the prosecutor compounded by repeated 

misstatement of the law reflected in those instructions. Under the facts of this case, we 

agree.

“‘“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.” [Citation.]’” (People v. Breverman

(1998) 19 Cal.4th 142, 154.) This instructional duty “prevents the ‘strategy, ignorance,

or mistakes’ of either party from presenting the jury with an ‘unwarranted all-or-nothing 

choice,’ encourages ‘a verdict . . . no harsher or more lenient than the evidence merits’ 
5

[citation], and thus protects the jury’s ‘truth ascertainment function’ [citation].” (Id. at 

p. 155, original italics.)

Here, defendants argue the trial court’s instruction on contrived selfdefense erroneously directed the jury to conclude a person has no right of self-defense 

against an adversary’s deadly attack, even if the defendant contrived to provoke a 

confrontation to use only nondeadly force against the adversary. The trial court 

instructed the jury with CALCRIM No. 3472, including its title, “Right to Self-Defense: 

May Not Be Contrived.” The instruction provided: “A person does not have the right to 

self-defense if he provokes a fight or quarrel with the intent to create an excuse to use 

force.” The instruction made no allowance for an intent to use only nondeadly force and 

an adversary’s sudden escalation to deadly violence.

The prosecutor highlighted the instruction in closing argument. The 

prosecutor argued it precluded any claim of self-defense even if defendants only 

instigated a fistfight. Indeed, the prosecutor acknowledged the evidence reflected a 

fistfight as defendants’ likely intent: “Nothing about the way that they approached, what 

they said, what they did, indicated anything but expecting and wanting a fight with the 

Tiny Winos. [¶] I am not saying expecting and wanting murder. I am saying expect[ing] 

and wanting a fight.” Invoking the contrived self-defense instruction, however, the 

prosecutor continued: “But remember, we are talking about are they entitled to selfdefense if they went there intending to provoke a fight and use force? And if you find 

that they did, they are not entitled to that protection.” (Italics added.) 

The prosecutor argued the instruction precluded a claim of self-defense in 

all possible circumstances under the evidence, i.e., whether “one, . . . Ruben Rivera 

actually had a gun; two, Armando thought Ruben had a gun; or three, the whole Rubenhad-a-gun theory is made up . . . .” The prosecutor acknowledged frankly that Rivera 

may have had a gun: “[T]o be quite honest, ladies and gentlemen, they [the Tiny Winos 

group] are gangsters. Can we really believe none of them had a gun?” Nevertheless, the 
6

prosecutor insisted under CALCRIM No. 3472 that it did not matter. “Was there a gun in 

Ruben’s hands? I am going to quickly go over the reasons for yes. I am going to quickly 

go over the reasons for no. But I want to stress, either way, it doesn’t matter. Because 

[CALCRIM No.] 3472 says a person does not have the right to self-defense if he 

provokes a fight or a quarrel with the intent to create an excuse to use force.” 

Relying on CALCRIM No. 3471, defense counsel argued in closing 

argument that the lesser charge of manslaughter might apply, but insisted Armando 

regained a right to defend himself against murder charges if he truly believed Rivera 

suddenly escalated the fistfight to a gunfight.1 The prosecutor, however, invoked 

CALCRIM No. 3472, arguing, “[Y]ou cannot have the princip[le] to mitigate from 

murder to voluntary manslaughter . . . when you are the one who created the 

circumstances to begin with. It makes sense. It’s fair. It’s just. More importantly, it’s 

the law.” The jury’s copy of the jury instructions reflects that in reaching its verdict, the 

jury circled CALCRIM No. 3472. 

CALCRIM No. 3472 under the facts before the jury did not accurately state 

governing law. The blanket rule articulated in CALCRIM No. 3472 and reiterated by the 

prosecutor effectively told the jury, “A person does not have [any] right to self-defense if 

he provokes a fight or quarrel with the intent to create an excuse to use [any] force.” In 

effect, the prosecutor and the trial court advised the jury that one who provokes a fistfight 

 

1 CALCRIM No. 3471 provides that a person who “engages in mutual 

combat” or “starts a fight” ordinarily has “a right to self-defense” only if three criteria are 

met: he actually and in good faith tried to stop fighting; communicated to his opponent 

“by word or conduct” this intent to cease fighting; and gave the opponent a chance to stop 

fighting. As defense counsel explained, these criteria need not be met where the 

opponent suddenly resorts to deadly force in response to a defendant’s nondeadly attack. 

CALCRIM No. 3471 provides: “[I]f 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 stop to the 

opponent, or give the opponent a chance to stop fighting.” 
7

forfeits the right of self-defense if the adversary resorts to deadly force. The adversary 

simply may stab or shoot a person who contrives what he thought would be a shoving 

match or fisticuffs. According to the prosecutor and the trial court’s instruction: “A 

person does not have the right to self-defense” in those circumstances. 

To the contrary, cases dating to 1896 invalidate jury instructions that 

wrongly suggest “the party first at fault — the one beginning the affray — absolutely 

forfeits to the other his right to live . . . .” (Conkling, supra, 111 Cal. at p. 626.) In other 

words, it is wrong to instruct the jury that: “Having committed the first wrongful act, the 

plea of self-defense is foreclosed to him, and his life is the penalty, no matter what turn 

the affray may subsequently take.” (Ibid.) Similarly, for example, imperfect self-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.” (Vasquez, supra, 136 Cal.App.4th at pp. 1179-1180.) 

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. (See, 

e.g., Fraguglia v. Sala (1936) 17 Cal.App.2d 738.) And when a defendant contrives a 

“deadly” assault (e.g., People v. Hinshaw (1924) 194 Cal. 1, 26 (Hinshaw)), there can be 

no incommensurate or unjustifiable response by the victim: he or she is fully entitled to 

use deadly force and the defendant has no right to claim self-defense against those deadly 

measures. 

For example, in People v. Enraca (2012) 53 Cal.4th 735 (Enraca), the 

evidence showed the defendant shot two victims at close range in the back of the head, 

execution-style. The defendant’s version of events established the victims were entitled 

to use deadly force to meet his deadly actions, and therefore the trial court did not err in 

instructing the jury with CALCRIM No. 3472’s antecedent that a defendant who 
8

contrives to use force may not claim self-defense. Specifically, the defendant told 

investigators the first victim (Hernandez) slapped at the defendant’s gun when the 

defendant pulled Hernandez’s head back, and the defendant shot Hernandez because he 

thought Hernandez was reaching for a gun in the other victim’s possession. Having shot 

Hernandez, the defendant also shot the other victim (Gobert) because he believed Gobert

was reaching for the same (nonexistent) gun as Hernandez. As the Supreme Court 

explained, there was nothing unreasonable or unpredictable in the victims’ supposed 

responses: “Hernandez responded to being pulled up by the hair by an armed assailant, 

and Gobert acted in resistance to Hernandez being killed.” (Enraca, supra, 53 Cal.4th at 

p. 760.) Thus, there was no possible error in the trial court’s instruction on contrived 

self-defense. Simply put, a defendant who assaults his victims with a gun may not set up 

a valid self-defense claim with evidence he believed the victims also reached for a gun, 

since they would be justified in meeting deadly force with deadly force. The evidence 

justified the contrived self-defense instruction there. (Id. at pp. 761-762.)

As noted, the trial court’s sua sponte duty to instruct the jury on the 

applicable principles of law derives from the facts before it. Here, defendants sought to 

invoke in other instructions the principle that one who provokes a nondeadly 

confrontation nevertheless may defend himself or herself against the victim’s unjustified 

use of deadly force. Both defense counsel in closing argument relied on instructions 

describing an initial aggressor or mutual combatant’s revived right of self-defense if an 

opponent in a nondeadly confrontation suddenly resorts to deadly force (CALCRIM 

No. 3471) and mitigation of murder to voluntary manslaughter where the defendant 

honestly but mistakenly believes the immediate use of deadly force is necessary to defend 

himself or others (CALCRIM No. 571). 

But the prosecutor in rebuttal emphasized the plain words of CALCRIM 

No. 3472 precluded these defenses. The prosecutor stated: “And with all due respect to 

[defense counsel], I completely disagree with how he read to you the law or explained to 
9

you the law. And that’s the beauty of it. It’s on paper. Okay. And you cannot have the 

principle of self-defense — you cannot have the principle to mitigate from murder to 

voluntary manslaughter, heat of passion or sudden quarrel when you are the one who 

created that circumstance to begin with.” (Italics added.) The prosecutor emphasized 

defense counsel “read to you only a certain portion, [CALCRIM No.] 3471[,] of [the law 

of] self-defense. But of course I read [CALCRIM No. 3472], which is the one after, and 

that is you can’t create the situation. Self-defense may not be contrived, actually; is the 

title of it. And we covered that.” (Italics added.) The prosecutor earlier had summarized 

her argument using CALCRIM No. 3472 categorically, as follows: “You can’t go 

looking for trouble and then complain about the trouble that you find. That’s what that 

instruction says.” 

As noted, she explained that whatever defendants claimed occurred, “it 

doesn’t matter because of that, of [CALCRIM No.] 3472.” Thus, whether “Rivera 

actually had a gun,” or Armando only “thought Ruben had a gun,” or “the whole Rubenhad-a-gun theory is made up,” the prosecutor stressed, “[I]t doesn’t matter.” “Because 

[CALCRIM No.] 3472 says a person does not have the right to self-defense if he 

provokes a fight or a quarrel with the intent to create an excuse to use force.” 

The Attorney General does not address the prosecutor’s misstatement of the 

law of self-defense, and indeed concedes defendants had a right to defend themselves if 

the facts were as they claimed. “[F]or example,” as the Attorney General notes, “if 

Armando instigated a fist fight, and Ruben suddenly responded with a firearm so that 

Armando could not withdraw from the fight, Armando had the right to defend himself 

with deadly force.” But “if Armando instigated the fist fight with the intent to create an 

excuse for him to shoot Ruben, self-defense did not apply.” (Italics added.) 

According to the Attorney General, when read together, CALCRIM 

Nos. 3471 and 3472 preserve this distinction between contriving to provoke a quarrel to 

use nondeadly force in a fistfight and contriving to provoke a quarrel to use deadly force. 
10

Alternatively, the Attorney General argues that any ambiguity in the intersection of 

CALCRIM Nos. 3471 and 3472 made it defendants’ burden to request a clarifying 

instruction, and failure to do so forfeits their challenge. (People v. Guiuan (1998) 

18 Cal.4th 558, 570.) 

The court may not, however, cast upon the parties its responsibility to 

instruct the jury accurately. It is the trial court’s statutory duty to instruct on the law 

applicable to the facts of the case (§§ 1093, subd. (f), 1127), including the defendant’s 

theory of defense (People v. Ponce (1996) 44 Cal.App.4th 1380, 1386.) The trial court 

has a sua sponte duty to instruct the jury on an affirmative defense “even in the absence 

of a request, ‘if it appears the defendant is relying on such a defense,’” as here, “‘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.’ [Citation.]” (People v. Boyer

(2006) 38 Cal.4th 412, 469.) Although no particular form of jury instructions is required, 

the court has a duty to ensure that the instructions provide a complete and accurate 

statement of the law. (People v. Fiu (2008) 165 Cal.App.4th 360, 370; People v. 

Martinez (1984) 157 Cal.App.3d 660, 667.) Where, as here, the trial court’s failure to 

properly instruct the jury affects the defendant’s substantial rights, the defendant’s failure 

to object does not bar the appeal. (§ 1259; People v. Brown (2003) 31 Cal.4th 518, 539, 

fn. 7; People v. Thomas (2013) 218 Cal.App.4th 630, 643.)

Here, as the prosecutor repeatedly emphasized to the jury, the plain words 

of CALCRIM No. 3472 do not support the Attorney General’s attempt to harmonize the

instruction with CALCRIM No. 3471. As the prosecutor observed, the discrepancy 

between the instructions is evident “on paper” in the black-and-white terms of 

CALCRIM No. 3472. That is, contriving to use any amount of “force” entirely precluded 

defendants’ self-defense claim, whether Rivera actually drew a gun to escalate the 

confrontation to deadly force or Armando only thought he did. Nothing in CALCRIM 

No. 3472 reflected that Armando had to intend to shoot Rivera or use other deadly force 
11

against him as a basis for precluding defendants from invoking perfect or imperfect selfdefense. Instead, under CALCRIM No. 3472’s plain terms, any “force” sufficed to 

preclude the defense. As the prosecutor repeatedly emphasized, under CALCRIM 

No. 3472’s command, “it doesn’t matter” whether under CALCRIM No. 3471 the 

original victim escalated a nondeadly conflict to deadly proportions. Rather, CALCRIM 

No. 3472 admits no exceptions in foreclosing self-defense where a defendant contrives to 

start a quarrel as a pretext to use “force,” whether deadly or nondeadly. The instruction 

misstates the law.

The Attorney General attempts to draw a vague, unspecified distinction in 

which CALCRIM Nos. 3471 and 3472 only “pertain to the complete defense of selfdefense, not the mitigating defense of imperfect self-defense.” But whatever the value in 

such a distinction, if any, it does not hold for several reasons. First, the Attorney General 

does not maintain the distinction, nor did the prosecutor. Specifically, the Attorney 

General suggests in her briefing that CALCRIM No. 3471 applies only to so-called 

“complete” defense requiring an acquittal “if Armando instigated a fist fight, and Ruben 

suddenly responded with a firearm.” But two pages later she describes the instruction as 

equally applicable to “imperfect self-defense if [defendants] provoked [Ruben’s group] 

with words or punches, and thereafter Ruben escalated from fisticuffs to deadly force 

. . . .” (Italics added.) As noted, the prosecutor in a different fashion did not maintain the 

distinction either: she erroneously argued CALCRIM No. 3472 obliterated all forms of 

self-defense — both perfect and imperfect self-defense alike — if the defendant contrives 

to use any force. 

Second, the Attorney General and the prosecutor are wrong. Contrary to 

the Attorney General’s attempt to make a distinction in which CALCRIM No. 3471 

applies only to complete self-defense, a defendant may claim imperfect self-defense when 

faced with the original victim’s sudden escalation to deadly force. (People v. Quach

(2004) 116 Cal.App.4th 294 (Quach); Vasquez, supra, 136 Cal.App.4th at pp. 1179-
12

1180.) Similarly, the prosecutor was wrong to suggest defendants were precluded from 

asserting a valid self-defense claim of any kind. Though a defendant “set[s] in motion

the chain of events that led the victim to attack the defendant,” he or she still may assert a 

claim of self-defense. (Vasquez, at pp. 1179-1180.) 

In Vasquez, a wheelchair-bound defendant who had a hidden gun provoked 

a confrontation with the victim in an alleyway to accuse the victim of molesting the 

defendant’s younger brother. The victim responded by lunging at the defendant and 

attempting to choke him, whereupon the defendant shot and killed him. The trial court 

denied the defendant’s request for an imperfect self-defense instruction, finding as a 

factual matter the defendant could not have feared for his life since he had a firearm. 

(Vasquez, supra, 136 Cal.App.4th at pp. 1179-1180.) 

Nothing in the record, however, “suggest[ed] appellant was pointing a gun, 

or that his gun was even visible, when Arechiga [the victim] lunged toward him.” 

(Vasquez, supra, 136 Cal.App.4th at p. 1178, fn. 1.) As the reviewing court explained, 

“It was for the jury sitting as the trier of fact to decide whether appellant actually feared 

serious injury or death from being choked.” (Id. at p. 1179.) The Vasquez court 

observed: “That appellant had a gun to rebuff Arechiga’s attack does not mean appellant 

could not have believed his life was in peril — in fact, a defendant claiming imperfect 

self-defense will always have had the means to rebuff the victim’s attack, or else the 

homicide would not have occurred. In our holding it was the jury’s role to determine 

appellant’s state of mind, we do not ignore the plentiful evidence suggesting appellant’s 

criminal intent in the alley.” (Ibid.) The court noted that “a reasonable jury could have 

concluded that in creating the situation appellant intended to kill all along.” (Id. at 

p. 1179, fn. 2.) But “[a] reasonable jury could also have concluded that appellant only 

intended to confront Arechiga with the accusation of rape and it was only after Arechiga 

attacked him that appellant formed the intent to kill.” (Ibid.)
13

The Vasquez court explained the trial court and the Attorney General 

“interpreted imperfect self-defense too narrowly” in suggesting “the defense is not 

available to a defendant who ‘induces a quarrel that leads to an adversary’s attack.’” 

(Vasquez, supra, 136 Cal.App.4th at p. 1179, italics added.) These italicized words echo 

the words of CALCRIM No. 3472. But Vasquez explained: “Neither the court nor 

respondent is precisely correct. Imperfect self-defense does not apply if a defendant’s 

conduct creates circumstances where the victim is legally justified in resorting to selfdefense against the defendant.” (Ibid., original italics.) “But 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.” 

(Id. at pp. 1179-1180.) Accordingly, the Vasquez court reversed for a retrial.

The same result is required here. While the trial court instructed the jury 

that a claim of imperfect self-defense reduces murder to the lesser-included offense of 

voluntary manslaughter if the defendant honestly but mistakenly believed deadly force 

was necessary (CALCRIM No. 571), CALCRIM No. 3472 as given here and as argued 

by the prosecutor erroneously foreclosed defendants’ imperfect self-defense claim. On 

the prosecutor’s motion, the trial court instructed the jury with a modified version of the 

standard imperfect self-defense instruction, CALCRIM No. 571. This “Special 

Instruction Regarding Wrongful Conduct” told the jury: “The principle of imperfect selfdefense may not be invoked by a defendant who, through his own wrongful conduct (e.g., 

the invitation of a physical assault or the commission of a felony) has created 

circumstances under which his adversary’s attack or pursuit is legally justified.” 

This instruction did nothing to counteract CALCRIM No. 3472’s 

categorical terms or the prosecutor’s argument that purported to absolutely bar a 

defendant’s claim of self-defense if he or she contrived to use “force.” To the contrary, 

the instruction presented an additional reason to preclude the defendants’ self-defense 

claim if the victim used “legally justified” force, but without limiting what was “legally 
14

justified” in response to contrived force. Indeed, in light of CALCRIM No. 3472’s 

absolute terms barring a defendant’s claim of self-defense even if he or she contrived to 

use only nondeadly force, and given the prosecutor’s forceful argument that “it did not 

matter” whether Rivera was actually armed or Armando believed he or his companions 

were about to be shot, the jury was misled on the law of self-defense. Rivera was not 

legally entitled to use deadly force if the jury believed defendants’ claim they only 

intended to use nondeadly force and presented no deadly threat. 

The Attorney General argues Victor forfeited his challenge on appeal by 

requesting CALCRIM No. 3472. Victor’s trial counsel checked a box for “3472 rt. to 

self-defense” in his preprinted form request for jury instructions. Counsel did so 

apparently without realizing the instruction erroneously stated the law relevant to his 

defense, precluding his reliance on Armando’s self-defense and defense of others defense 

against the murder charge. On appeal, Victor correctly observes there is no conceivable 

tactical reason for requesting an instruction that eliminates one’s defense. Consequently, 

because he received ineffective assistance of counsel and we cannot say the jury would 

have rejected defendants’ defense if it had been properly instructed, Victor’s challenge is 

not forfeited. (Strickland v. Washington (1984) 466 U.S. 668, 684-687; People v. 

Mendoza Tello (1997) 15 Cal.4th 264, 266.) 

The Attorney General argues the instructional error was harmless given the 

jury’s true findings on the gang special circumstance (§ 190.2, subd. (a)(22)) and the 

gang enhancement (§ 186.22, subd. (b)). The Attorney General suggests that because the 

jury found defendants intended to kill Ruben to further and promote their gang, any 

notion of self-defense was explicitly rejected by the jury. The Attorney General’s 

argument fails, however, precisely because the jury was misled by CALCRIM No. 3472. 

The jury cannot be said to have rejected defendants’ imperfect self-defense claim where 

the instructions erroneously required them to reject the claim.
15

In essence, the instructions and the prosecutor’s argument erroneously 

required the jury to conclude that in contriving to use force, even to provoke only a 

fistfight, defendants entirely forfeited any right to self-defense. The instructions and the 

prosecutor’s argument established as a matter of law that defendants were not entitled to 

imperfect 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. (Vasquez, supra, 

136 Cal.App.4th at p. 1179, fn. 2; Quach, supra, 116 Cal.App.4th at p. 304 [federal 

constitutional error in instructions where “[w]e cannot be convinced beyond a reasonable 

doubt that no jury could have adopted Quach’s version of the facts”].)2

 

2 Our dissenting colleague concludes CALCRIM No. 3472 as given correctly 

precludes CALCRIM No. 3471’s lethal escalation defense because a defendant is “not 

permitted to assert the right of self defense if [he] initially engaged in that activity for the 

purpose of contriving the opportunity to engage in further violence in response to [his] 

adversary’s reaction.” (Italics added.) According to the dissent, this forfeiture under 

CALCRIM No. 3472 applies “even if [the victim’s lethal escalation] requirements of 

CALCRIM No. 3471” are met. A mutual combatant therefore may end a fistfight with a 

knife or a bullet, and the defendant who intended only fisticuffs must lay down his life 

without defending it. The prosecutor adopted this position, but the Attorney General 

does not, conceding a defendant may defend himself in those circumstances. The 

dissent’s position is not the law. (Conkling, supra, 111 Cal. at p. 626 [“party first at 

fault” does not “absolutely forfeit[] to the other his right to live”].) As the dissent 

recognizes, Enraca is distinguishable because the defendant’s evidence showed only his 

deadly intent, not a nondeadly confrontation, and as we explained, Hinshaw similarly 

turned on the defendant’s intent to provoke a “deadly” quarrel. (Hinshaw, supra, 

194 Cal. at p. 26.) The dissent and CALCRIM No. 3472 make no distinction between 

deadly and nondeadly force, nor an opponent’s escalation to deadly force. The 

distinction makes all the difference. Defendants were entitled to have the jury consider 

their imperfect self-defense claim. 
16

III

DISPOSITION

The judgment is reversed. 

ARONSON, ACTING P. J.

I CONCUR:

THOMPSON, J. 
1

FYBEL, J., Dissenting.

I respectfully dissent. The conviction of Armando Apolinar Ramirez 

(Armando) for the first degree murder of Ruben Rivera should be affirmed. The jury was 

properly instructed, without objection by any party, on both perfect and imperfect 

self-defense based on legal principles affirmed by the California Supreme Court in 

People v. Enraca (2012) 53 Cal.4th 735, 761-762 (Enraca) and People v. Hinshaw

(1924) 194 Cal. 1, 26 (Hinshaw). The jury thereafter found Armando shot and killed 

Rivera and was guilty of premeditated murder. There is no dispute substantial evidence 

supported the jury’s decision. In brief, the majority and I disagree on the answer to the 

basic question of what is California law on subjects covered by the instructions given in 

this case.

The majority opinion reverses Armando’s conviction on the ground the trial 

court erred by instructing the jury with an unmodified version of CALCRIM No. 3472. 

CALCRIM No. 3472 is entitled “Right to Self-Defense: May Not Be Contrived” and 

states: “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.” By its express language, 

CALCRIM No. 3472 does not apply to every person who initiates a fight and 

subsequently claims self-defense. Instead, it applies to a subset of individuals who not 

only instigate a fight, but do so with the specific intent that they contrive the necessity for 

their acting thereafter in “self-defense,” and thus justify their further violent actions. In 

other words, this instruction applies, and the right to self-defense is lost, only if an initial 

aggressor commences combat for the intended purpose of provoking a violent reaction so 

that he or she can then retaliate with further violence, whether deadly force or nondeadly 

force, under the guise of self-defense. The defendant’s intent is measured at the time the 

fight or quarrel is provoked.

In Enraca, supra, 53 Cal.4th at page 761, the California Supreme Court 

held that CALJIC No. 5.55, the predecessor to CALCRIM No. 3472, correctly stated the 
2

law. CALJIC No. 5.55, approved in Enraca, provided: “‘The right of self-defense is not 

available to a person who seeks a quarrel with the intent to create a real or apparent 

necessity of exercising self-defense.’” (Enraca, supra, at p. 761.) CALCRIM No. 3472 

is more favorable to a defendant than CALJIC No. 5.55 because the former instruction 

specifically required that the defendant’s act of provoking a fight or quarrel be made with 

the intent to create an excuse to “use force” before the defendant would be precluded 

from asserting the right of self-defense. 

In People v. Hinshaw, supra, 194 Cal. at page 26, the California Supreme 

Court approved an instruction as “correctly stat[ing] the recognized principle of law ‘that 

self-defense is not available as a plea to a defendant who has sought a quarrel with the 

design to force a deadly issue and thus, through his fraud, contrivance or fault, to create a 

real or apparent necessity for making a felonious assault.’”

In my view, given the legal principles articulated in Enraca and Hinshaw, 

CALCRIM No. 3472 accurately states sound legal precedent. 

In Enraca, the Supreme Court also approved the use of CALJIC No. 5.17, 

through which “the jury was also instructed that the principle of imperfect self-defense ‘is 

not available, and malice aforethought is not negated, if the defendant[,] by his unlawful 

or wrongful conduct[,] created the circumstances which legally justified his adversary’s 

use of force.’” (Enraca, supra, 53 Cal.4th at p. 761, italics added.) In the instant case, 

the jury was given a special instruction containing the same substance as CALJIC 

No. 5.17; it stated: “The principle of imperfect self-defense may not be invoked by a 

defendant who, through his own wrongful conduct (e.g. the invitation of a physical 

assault or the commission of a felony) has created circumstances under which his 

adversary’s attack or pursuit is legally justified.” 

Accordingly, both CALCRIM No. 3472 and CALJIC No. 5.55 contain a 

scienter requirement. Neither the special instruction, quoted ante, nor its counterpart 

CALJIC No. 5.17, ante, contains any scienter requirement. Instead, they both limit the 
3

loss of the right to claim imperfect self-defense to an adversary’s use of force that is 

legally justified, e.g., the adversary’s use of force in his or her own self-defense against 

the initial aggressor’s provocation. Hence, if the initial aggressor simply provokes a fight 

using nondeadly force—without an intent to create a larger conflict for the purpose of 

covering for him or her to engage in further violence in the name of self-defense—he or 

she is not precluded from claiming self-defense or imperfect self-defense in responding to 

the adversary’s response of deadly force.

Here, as in Enraca, supra, 53 Cal.4th 735, instructing the jury with 

CALCRIM No. 3472 was supported by the record because substantial evidence showed 

Armando, along with Victor Espudo Ramirez, Jr. (Victor), and Steven Arevalos, not only 

provoked the fight with rival gang members, but Armando, for his part, did so with the 

intent of creating a circumstance (a sudden fistfight between rival gang members) in 

which he might have the excuse of self-defense to use his gun against his adversaries. 

Specifically, substantial evidence showed (1) Armando, Victor, and Arevalos agreed to 

confront a rival gang whose members had repeatedly driven by Armando’s house, 

sometimes flashing gang signs and guns and even shooting at Armando’s house; 

(2) Armando initially brought a gun to take with him but agreed to leave it at home when 

Arevalos told him not to bring it; (3) Armando pretended he had put the gun back inside 

his house before they drove to confront rival gang members, but he actually had secreted 

it in his sweatshirt pocket; (4) during the drive, Victor told Armando, “[i]f you have a 

gun, you better use it and not be a bitch”; (5) Armando, Victor, and Arevalos located and 

then walked up to a group of rival gang members whom they “hit up” by asking, 

“[w]here you from”; (6) expert witness testimony explained that such “hit up[s]” usually 

result in some kind of violence “at the minimum, a fistfight”; (7) a fistfight broke out 

during which Armando fatally shot Rivera after, Armando claimed, he saw Rivera with 

what looked like a gun in his hand; and (8) no gun was found on or even near Rivera.
4

As noted by the majority, Armando testified that he did not set out that 

evening intending to shoot anyone. Accordingly, the evidence supported the trial court in 

the instant case instructing the jury with CALCRIM No. 3472 and also with CALCRIM 

No. 3471, which as discussed post, addresses self-defense in the context of mutual 

combat or initial aggressors. (The jury was also instructed on imperfect self-defense with 

CALCRIM No. 571 and the special instruction discussed ante). 

Having been so instructed, the jury was entitled to conclude, under 

CALCRIM No. 3472, that Armando did not have the right to claim self-defense in his 

killing of Rivera because Armando not only provoked the fistfight with the rival gang 

members, he specifically intended, through the provoked fistfight, to have the contrived 

opportunity to use further force in the ensuing fracas. The jury was further entitled to 

conclude that Armando took advantage of that opportunity and killed Rivera. Quite 

simply, under these circumstances, the jury was entitled to disbelieve Armando’s 

testimony that he did not set out that night intending to shoot anyone.

Given the correctness of the instructions and the evidence, it is justified and 

logical that the trial court, defense counsel, and the prosecutor all agreed the instructions 

could be given to the jury. Courts statewide often face the fact pattern of this case: an 

armed gang member travels to hit up a rival gang with the intent to use force, a gang 

member then shoots a rival gang member, and the shooter claims afterwards that he or 

she only shot because the shooter thought his or her adversary was reaching for a gun. 

The majority thus leaves trial courts in an untenable position: a CALCRIM instruction is 

proposed, no one objects, all counsel agree it can be given, the evidence supports the 

instruction, the California Supreme Court has twice approved essentially the same 

instruction, and yet it is reversible error to give the instruction. 

The majority opinion does not explain how CALCRIM No. 3472 might be 

modified for the majority to conclude the instruction accurately states the law as it would 

apply to the facts of this case. The majority opinion’s final paragraph begins: “In 
5

essence, the instructions and the prosecutor’s argument erroneously required the jury to 

conclude that in contriving to use force, even to provoke only a fistfight, defendants 

entirely forfeited any right to self-defense.” (Maj. opn., ante, at p. 14.) It appears the 

majority would modify CALCRIM No. 3472 to do no more than restate principles that 

were given to this jury in the form of CALCRIM No. 3471. 

Specifically, CALCRIM No. 3471 instructed the jury about the right to 

self-defense in the context of mutual combat or a conflict in which the defendant is the 

initial aggressor as follows: “A person who engages in mutual combat or who starts a 

fight has a right to self-defense only if: [¶] 1. He actually and in good faith tried to stop 

fighting; [¶] AND [¶] 2. 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 [¶] 3. 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 

stop 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.” (Italics added.) 

CALCRIM No. 3472 instructs that even if initial aggressors or mutual 

combatants satisfy the requirements of CALCRIM No. 3471, they are not permitted to 

assert the right to self-defense if they initially engaged in that activity for the purpose of 

contriving the opportunity to engage in further violence in response to their adversary’s 

reaction. The majority does not give CALCRIM No. 3472’s phrase, “with the intent to 

create an excuse to use force,” any meaning or weight in its analysis of whether 
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CALCRIM No. 3472 accurately states the law when it is that very phrase that 

distinguishes it in substance and purpose from CALCRIM No. 3471.

The majority opinion quotes extensively from the prosecutor’s closing 

argument and rebuttal argument, asserting the prosecutor compounded the impact of the 

claimed error contained in CALCRIM No. 3472 by reiterating the instruction’s 

misstatement of the law. (Maj. opn., ante, at pp. 5-6, 8-9.) For the reasons I have 

explained, CALCRIM No. 3472 contains a proper statement of the law as confirmed by 

Enraca and Hinshaw. The majority does not assert that the prosecutor made any 

objectionable statements that were inconsistent with CALCRIM No. 3472. Because there

was no instructional error, analysis of the prosecutor’s statements is unnecessary to 

evaluate prejudice. Armando and Victor did not argue prosecutorial misconduct in this 

appeal.

The majority’s reliance on People v. Vasquez (2006) 136 Cal.App.4th 1176 

(Vasquez) is misplaced as that case did not involve contrived self-defense as set forth in 

CALCRIM No. 3472 or otherwise. The appellate court in Vasquez held the trial court 

erred by refusing to instruct the jury on imperfect self-defense, explaining in part, “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.” (Vasquez, supra, at pp. 1179-1180.) (The jury in the instant case was 

instructed on imperfect self-defense with both CALCRIM No. 571 and the special 

instruction discussed ante.) 

In Vasquez, the trial court refused to instruct the jury on imperfect 

self-defense, in part, because the court concluded the defendant had “created the need to 

defend himself by luring [his victim] to the alley to confront him.” (Vasquez, supra, 136 

Cal.App.4th at p. 1179.) Vasquez did not address whether the defendant set up the 

confrontation with his adversary “with the intent to create an excuse to use force” 

(CALCRIM No. 3472) because it was simply not at issue. The majority opinion states 
7

that language in Vasquez, criticizing an interpretation of self-defense as unavailable to a 

defendant “who ‘induces a quarrel that leads to an adversary’s attack’” (Vasquez, supra, 

at p. 1179), has “echo[ed] the words of CALCRIM No. 3472” (maj. opn., ante, at 

pp. 12-13). Not so. CALCRIM No. 3472 has an additional scienter requirement, namely, 

an “intent to create an excuse to use force.” (Italics added.) It does not simply focus on 

whether inducement of a quarrel leads to an adversary’s attack.

By relying on the holding of Vasquez, the majority appears to conflate two 

different issues: first, a defendant “set[ting] in motion the chain of events” (Vasquez, 

supra, 136 Cal.App.4th at p. 1180) that led to his or her adversary’s violent reaction, and 

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

to use force” (CALCRIM No. 3472). These two actions are not the same. The 

California Supreme Court’s decision in People v. Conkling (1896) 111 Cal. 616, 626, 

simply addresses the first issue; consequently, the court rejected the legal principle that 

“the party first at fault—the one beginning the affray—absolutely forfeits to the other his 

right to live, to the extent at least of the difficulty which he has created.” (Italics added.)

Unlike Vasquez, in our case, the jury was instructed on imperfect 

self-defense in the form of CALCRIM No. 571 and the special instruction quoted ante. 

The appellate court in Vasquez did not address whether the defendant was precluded from 

the right to self-defense because he provoked a fight or quarrel with the intent to create an 

excuse to use force.

The majority’s reliance on factual differences between our case and Enraca

is without moment. In Enraca, the Supreme Court held the jury was properly instructed 

with CALJIC No. 5.55 in the context of the evidence that the defendant participated in a 

gang fight during which he grabbed one victim by the hair, pulled his head back, and 

asked where he was from. (Enraca, supra, 53 Cal.4th at p. 744.) After the victim hit the 

defendant’s hand, the defendant fatally shot him; the defendant explained he was afraid 

the victim was about to shoot him with a gun the defendant had not seen. (Ibid.) The 
8

defendant thereafter shot a second victim because he feared that victim was about to grab 

the same gun he had not seen. (Ibid.) Nothing in Enraca supports the majority’s 

intimation that CALCRIM No. 3472 is inapplicable unless the defendant provokes a fight 

or quarrel with the use of deadly force. Neither Enraca, nor any legal authority I have 

found, supports such a limitation of CALCRIM No. 3472. Notwithstanding Enraca’s 

disparate facts, the legal principles affirmed therein still control in our case. (Auto Equity 

Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) 

I would also reject Armando’s other instructional and evidentiary 

challenges raised in this appeal, and affirm his conviction. Following the opinion of the 

California Supreme Court in People v. Chiu (2014) 59 Cal.4th 155, I would reverse 

Victor’s first degree murder conviction and remand with the same disposition in Chiu. In 

Chiu, the court held that “an aider and abettor may not be convicted of first degree 

premeditated murder under the natural and probable consequences doctrine. Rather, his 

or her liability for that crime must be based on direct aiding and abetting principles.” (Id.

at pp. 158-159.) 

FYBEL, J.