Filed 2/18/15 P. v. Ward CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,

v.
ERIC WARD,
Defendant and Appellant. B251294
(Los Angeles County Super. Ct. No. PA072834)

APPEAL from a judgment of the Superi or Court of Los Angeles County, Cynthia L. Ulfig, Judge. Affirmed. William J. Capriola, under appointment by the Court of Appeal , for Defendant and Appellant. Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.2 A jury convicted defendant Eric Ward of one count of attempted premeditated murder (Pen. Code, 1 §§ 664/187) and one count of assau lt with a deadly weapon (§ 245, subd. (a)(1)) in connecti on with the January 3, 2011, stabbi ng of Oscar Orosco. The jury also found true for both counts allegations that defendant personally used a deadly weapon (§ 12022, subd. (b)(1)) a nd personally inflicted great bodily injury (§ 12022.7, subd. (a)). After the trial court found the prison priors (§ 667.5, subd. (b)) alleged against defendant to be true as well, it sentenced de fendant to life without parole plus six years on the attempted murder count, related a llegations, and prison priors. The court
sentenced defendant to a midterm sentence of three years on the assa ult count, plus an additional four years for the en hancements. The latter senten ce was stayed pursuant to section 654. Defendant has timely appealed on the sole ground that the court committed prejudicial error by declining to instruct the jury on self-defense. We disagree and affirm the judgment.

FACTUAL AND PROCED URAL BACKGROUND
A. Evidence Adduced at Trial On January 3, 2011, Oscar Orosco lived in a North Hills apartment with his girlfriend, Natalie Barragan, and their infant daughter. Orosco’s parents and brother also lived in the apartmen t, which was located within a multi-building complex. Defendant lived in the same ap artment complex, in a building across a courtyard from Orosco’s.
Defendant’s roommates included his girlfriend, Marlena; his friend, Sean Gordon; and Gordon’s girlfriend, Reina Patini.
Defendant and Orosco met one another at the apartment complex about six months to a year prior to January 3, 2011, and b ecame friends. They frequently hung out and

1 All further statutory references are to th e Penal Code unless otherwise indicated.3 drank together and did not ha ve any problems or “bad bl ood” between them. At one point in 2010, Orosco even stayed at defe ndant’s apartment for a few days when he (Orosco) was having problems with his family. Orosco’s girlfriend, Barragan, did not like Orosco spending so much time hanging out and drinking with defendant. Barragan told Orosco she di d not want him “kicking it”
with defendant like he used to . She once slammed the door in defendant’s face when he came by to visit Orosco. Defend ant complained to Or osco that he did not get to “kick it”
with Orosco as much after Ba rragan began living with him. On January 3, 2011, the night of the inci dent, Orosco returned home from drinking with a friend and went behind the building to drink some more with defendant and defendant’s roommate, Gordon. While the trio was outside drinking, four or five of Orosco’s friends who used to live in the ap artment complex stopped by and visited with Orosco. After Orosco’s friends left, defe ndant started “tripping out” and asking who Orosco’s friends were and why they had come. Defendant re peatedly accused Orosco of trying to “set him up.” Defendant “didn’t wa nt to stop” making accusations even after Orosco explained that his friends were “regul ar friends that lived in the apartment” and were “not no gang bangers or nothing like that .” Defendant persisted in his allegations, and Orosco “kept telling him over and over that it’s not like that, that I wouldn’t do that to him because he was my friend.” Eventu ally Orosco became angry and defendant “looked really mad” as well.
Orosco returned to his apartment after the argument; by then it was about 11:00 p.m. Upon his return Barragan went to defe ndant’s apartment to visit Patini. She and Patini went upstairs to Patini and Gordon’s bedroom, where Gordon and defendant already were hanging out. According to Ba rragan, defendant was “basically screaming” that she and Orosco were trying to set him up. He was “just standing” in his striped collared shirt, gray thermal, and half-zippe d black jacket, “shaking his hands like mad,” and “saying it mad.” He also looked at Barr agan and said that he was “going to stab
these motherfuckers in the ba ck.” Although defendant did not mention names and she4 did not ask him for clarifica tion, Barragan knew defendan t was talking about her and Orosco because he was looking at her and ha d begun accusing her a nd Orosco of trying to “set him up” a couple of months earlier. He had never menti oned stabbing before,
however.
Patini told defendant to leave and he decamped to his bedroom next door. Barragan told Patini she was scared and wanted to go home. As Pati ni walked her to the front door, Barragan heard what sounded like defendant “socking” the walls and throwing things in his room. Barragan estim ated her visit lasted about five minutes. When Barragan returned home, Orosco asked his father, Manuel Orosco (“Manuel”), for a cigarette and went outside to smoke. Orosco testified that he did not remember anything beyond that.
Gordon also was outside in the courtyard smoking a ciga rette. He saw Orosco and the two began “shooting the breeze.” Defe ndant showed up about five minutes later.
Defendant walked over to Or osco and began talking with him. Gordon, who could not
recall whether defendant looked upset, stepped back about five feet to give defendant and Orosco some privacy. According to Gordon, th ere initially was “no animos ity” between defendant and Orosco. They spoke quietly for about one to two minute s before their conversation
turned heated. Gordon could not tell what they were saying , but he saw them standing about six inches apart and getting in each other’s faces a little bit. The verbal dispute turned physical when Orosco punch ed defendant in the face “with all his might.” Defendant immediately re sponded in kind with a punch to Orosco’s face, and then “[i]t was just back and forth punching, punching, punc hing, punching.” As far as Gordon could tell, it was a fistfight; he did not see any ty pe of weapon. Eventually, one of the men picked up the othe r and slammed him to the ground. Gordon thought defendant probably did the slamming, because he was bigger and heavier than Orosco, but he was not sure. Eventually de fendant ended up on top of Orosco and the two continued “punching back and forth.”5 “[L]ike 10, 15 seconds” after defendant and Orosco hit th e ground, Gordon noticed a lot of blood and stopped the fi ght by pulling defendant “off of” Orosco. Orosco’s face was “really bloo dy” and there was a “pretty bi g” hole in his neck. Blood was “pumping out” of the neck wound, and “t here was blood everywhere.” Gordon yelled for help and ran to alert Orosco’s pare nts. Gordon was not sure where defendant was, but remembered that he was not presen t when emergency resp onders arrived on the scene. Gordon remembered pr eviously listening to an audi o recording of himself telling
detectives that defendant ran into hi s apartment and then left the scene. 2 According to Manuel, he was eating dinn er on January 3, 2011, when Barragan told him that Orosco was calling for him. Manuel also heard Oros co yelling for help. Manuel went to the courtyard and saw Oros co kneeling there. Manuel saw defendant standing either on top of Orosco or to hi s side, punching him with his hands. Manuel did not see anything in defendant’s hands. Defe ndant ran away into his apartment building when Manuel approached. Ma nuel carried or assisted Or osco back to the family’s apartment. He testified that Orosco was bleeding from “the neck, from his stomach, from his gut.” Photographs of a blood trail in th e hallway of Orosco’s apartment building, a pool of blood on the doorstep , and a trail of blood leading into the apartment’s kitchen
were admitted into evidence. Orosco continued to bleed after being acc ompanied into the ap artment, so Manuel and Barragan carried Orosco back outside. Orosco collapsed on the way. Manuel ran to get his truck, which he then backed into the courtyard area. Before Manuel could do anything else, the police arrived and detained him and everyone else at the scene. Barragan testified that ab out five minutes after Orosco went outside with his cigarette, she heard him yelling “Dad, help.” Barragan told Manuel that Orosco was

2 It is unclear from the re cord when and under what ci rcumstances Gordon reviewed the audio tape. The record reflects only that Gordon agreed that he listened to the tape and reviewed the transcript in the presence of Richard Quinones, the deputy district attorney currently prosecuti ng the case, and “another D.A. Nathan Bartos.”6 calling for him, and Manuel went outside. According to Barragan, Manuel ran back inside, told Barragan that Orosco had been stabbed, and called an ambulance. Barragan exited the apartment and saw Orosco walking down the hallway towa rd her. Blood was “jumping” from his neck into th e air. Barragan asked him what happened and he said he
didn’t know. Barragan helped Orosco into the apartment, to wards the kitchen. Orosco fell to the floor and said he was not going to make it. He asked Manuel and Barragan to take him to the hospital. Manuel and Barragan tr ied to carry Orosco to Manuel’s truck but Orosco collapsed near the end of the hallway. The police had arrived by that point, so Barragan went to look for the paramedics. She saw an ambulance “just standing in the
middle of the street” and ran over to direct it to Orosco. Barragan testified that the ambulance to ok Orosco to the hospital, where he
remained in a coma for three w eeks. The parties later stipul ated that Orosco was in the hospital for eight days, from January 4, 2011, to January 12, 2011. Barragan testified that she visited Orosco in the hospital after he regained consciousness and asked him who had stabbed him. According to Ba rragan, he refused to tell her and said that he was not a
snitch. He also said he did not remember who stabbed him. When called by the defense, Orosco de nied telling Barragan that he was not a
snitch and maintained that he had no knowledge of who stabbed him – or of anything that happened after he went outside to smoke on Ja nuary 3, 2011. He also said, however, that
if he knew who stabbed him he would have identified the person because “that was my life right there.”
Orosco did remember that when he woke up in the hospital, his head and stomach were hurting and he had big bandages on the right side of his neck and around his
stomach. Orosco testified that he later had to have a total of approximately 20 surgical staples removed from wounds on his chin, the right side of his neck, his stomach, on his right side under his armpit just above his hip bone, and just above and on his buttocks. He did not have any of these wounds when he went out to smoke on January 3, 2011.7 Officers from the Los Angeles Police De partment found blood on defendant’s bedroom door. Inside the bedroom, they fou nd two garments that appeared to have blood on them: a striped collared shirt and a gray thermal or sweatshirt. They recovered a
steak knife from defendant’s closet. The police sent samples from the two stai ned shirts to the lab for DNA analysis, along with some swabs containi ng blood from the courtyard. The stained shirts both contained blood from a single source profile that matched Orosco’s DNA profile. Defendant’s DNA profile also wa s included in other swab samp les taken from the shirts. The blood from the courtyard matched Orosco’s DNA profile. 3 B. Jury Instructions The court held a jury inst ructions conference after bot h sides rested but prior to closing arguments. While reviewing CALC RIM No. 875 (Assault w ith Deadly Weapon or Force Likely to Produce Gr eat Bodily Injury), th e court noted the optional self-defense element and said, “[i]t also does not appear to the court there was any evidence of selfdefense or defense of another.” Defense counsel, who had not informed the court before resting that he wished to pursue a self-def ense theory, argued that the jury should be
instructed on the self-def ense element of CALCRIM No. 875 because “the only testimony we have regarding the actual inci dent itself was that Mr. Orosco initiated whatever conflict there was by hitting Mr. Ward and then actions took place subsequent to that. So I think one [ sic ] certainly could be argued that this was self-defense.” The prosecutor countered that “stabbing the victim multiple times went beyond self-defense. The testimony was that -- the testimony the vic tim did punch him, then the two began to fight and exchange blows, and then the vi ctim was body-slammed -- or someone was, presumably the victim, according to Mr. Gordon. But then the act of stabbing him, which is what this charge is about, assault with a deadly weapon , went beyond any act of selfdefense.”

3 The steak knife was not analyz ed, even for fingerprints.8 The court ruled: “The only testimony that was brought out was from Mr. Gordon saying that he observed Mr. Orosco strike the defendant once and then, basically, the fight was on. I don’t think this rises to sel f-defense. It’s not a case of Mr. Orosco being armed with any type of weapon or anything else, the action resulted in, basically, a fight. And if the jury believes the testimony, Mr. Ward brought a knife or some other cutting instrument to the fight, there is no evidence that Mr. Orosco had any type of weapon. [¶] So the self-defense portion, the court does not find there is adequate information to give element no. 5 with respect to instruction 875.” The court accordingly did not include th e self-defense portion of CALCRIM No.
875 in its oral or written instructions to th e jury. No other CAL CRIM jury instructions pertaining to self-defense— namely Nos. 505 and 3470-3477—were discussed at the conference or given to the jury.
DISCUSSION
Defendant contends that th e trial court erred in failing to instruct the jury on principles of self-defense. Specifically, he argues that the trial court should have given CALCRIM Nos. 505 (Justifiable Homicide: Se lf-Defense or Defense of Another) and 3470 (Right to Self-Defense or Defense of Another (Non-Homici de)), and should have
included the contested self-defense element in CALCRIM No. 875 (A ssault with Deadly Weapon or Force Likely to Produce Grea t Bodily Injury). We disagree. The theory of self-defense offers a justification for acts that would otherwise be criminal. (1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Defenses, § 67, p. 507.)
The defense is available for both homicide a nd non-homicide crimes . (See § 197; § 693; CALCRIM No. 505 [Justifiable Homicide: Se lf-Defense or Defense of Another], CALCRIM No. 3470 [Right to Self-Defense or Defense of Another (Non-Homicide)].) “For self-defense, the defend ant must actually and reasonabl y believe in the need to defend, the belief must be objectively reasona ble, and the fear must be of imminent danger to life or gr eat bodily injury.” ( People v. Lee (2005) 131 Cal.App.4th 1413,9 1427; see CALCRIM Nos. 505 & 3470.) 4 The right of self-defense is limited to the use
of such force as is reasonabl e under the circumstances. ( People v. Minifie (1996) 13 Cal.4th 1055, 1065.) Although the test for reasonableness is an objective one, “reasonableness is determined from the point of view of a reasonable person in the defendant’s position.” ( Ibid. ) Notably for our purposes, be ing assaulted with fists does not generally permit a person to respond with dead ly force, unless the person reasonably believes that the assault is likely to inflict great bodily injury. ( People v. Enriquez (1977) 19 Cal.3d 221, 228, disapproved on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, fn.3; 1 Witkin & Ep stein, Cal. Criminal Law, supra , § 75, p. 517.) It matters little for our purposes that defe ndant expressly request ed only one of the instructions currently at issue. “It is well settled that a defendant has a right to have the trial court, on its own initiative, give a jury instruction on any affirmative defense for
which the record contains substantial ev idence [Citation]—evidence sufficient for a reasonable jury to find in favor of the defendant [Citation]—unless the defense is
inconsistent with the defendant's th eory of the case [Citation].” ( People v. Salas (2006) 37 Cal.4th 967, 982.) Similarly, “[a] trial court must give a requested instruction only if it is supported by substantial evidence, th at is, evidence suffici ent to deserve jury

4 In the context of homicide crimes, se lf-defense may be available even where a defendant acts unreasonably. “Self-defense, when based on a reasonable belief that killing is necessary to avert an imminent th reat of death or great bodily injury, is a complete justification, and such a killing is not a crime. [Citations .] A killing committed when that belief is unreasonable is not justifiable. Neve rtheless, ‘one who holds an honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury does not harbor ma lice and commits no greater offense than manslaughter.’ [Citation.]” ( People v. Elmore (2014) 59 Cal.4th 121, 134.) “Unreasonable self-defense is ‘not a true defe nse; rather, it is a s horthand description of one form of voluntary manslaught er.’ [Citation.] Whenever th ere is substantial evidence that the defendant killed in un reasonable self-defense, the tria l court must instruct on this theory of manslaughter. [Citation.].” ( Ibid. ) Defendant does not contend that he acted in unreasonable self-defense or that the trial court should have instructed the jury on attempted voluntary manslaughter. We according ly do not consider the impact, if any, of the absence of these instructions. (See People v. Grimes (2015) 60 Cal.4th 729, 757- 758.)10 consideration.” ( People v. Marshall (1997) 15 Cal.4th 1, 39-40.) “‘[U]nsupported theories should not be presented to the jury.’” ( Id. at p. 40.) “In determining whether the
evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evid ence, but only whether ‘there was evidence which, if believed by the jury, was sufficient to ra ise a reasonable doubt.’ [Citations.]” ( People v.
Salas
, supra , 37 Cal.4th at p. 983.) Here, there was no substantial evidence from which the jury could have concluded that defendant’s repeated stabbing of Orosco was a reasonable or necessary response under the circumstances of the fistfight. Alt hough Orosco initially swung at defendant’s face “with all his might,” defendant did not re spond with deadly fo rce to this powerful punch. ( Cf. In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161 [“The use of hands or fists alone may be sufficient to support a conv iction of assault by means of force likely to produce great bodily injury.”]) Instead, defe ndant responded in kind, and the two men fought for a period of time using only their fists. At some point, the fight moved to the ground, and defendant, whom Gordon testifie d was bigger and heavier than Orosco, was on top. Then, and only then, after he had the upper hand, did defendant stab Orosco; Gordon noticed blood “10, 15 seconds” after defendant a nd Orosco hit the ground.
There was no evidence that Orosco pulled, threatened defendant with, or even possessed a weapon, or that defendant (reason ably or unreasonably) expected him to do so at any time before or during the fight. Defendant’s fists had been sufficient to keep Orosco at bay throughout the altercation, and there was no evidence from which the jury
could have found that circumstances had cha nged such that weaponry or deadly force was required to fend off Orosco once he was on the ground beneath defendant. Defendant points out that Orosco continued to punch him “all the way through to the end of the fight,” but we are not persuaded that this continued resistance – alone or in
combination with the other relevant circumst ances, such as Orosco’s inebriation (see People v. Villanueva (2008) 169 Cal.App.4th 41, 52) and the parties’ previous verbal argument – gives rise to an inference that defe ndant suddenly feared for his life or safety11 such that he needed to escalate the fight. (See People v. Minifie
, supra , 13 Cal.4th at p. 1068-1069 [noting importance of defendant’s state of mind a nd perception of the victim’s
behavior at the time he wiel ded the force at issue].) Even if the jury believed that Orosco and/or Barragan had been trying to “set up” defendant (see People v. Minifie
, supra , 13 Cal.4th at p. 1069), there is no evidence supporting defendant’s sudden escalation of the fight. “There mu st be evidence the defendant feared imminent, not just future” – or past – harm. ( Id. at p. 1068.) That evidence simply was not present here. Even if it had been, the absence of instru ctions on self-defen se did not prejudice defendant, even assuming that the more stringent Chapman standard applies. ( Chapman v. California (1967) 386 U.S. 18, 24; People v. Salas
, supra , 37 Cal.4th at p. 984 [standard of prejudice for failure to instruct on affirmative defense not yet determined]; People v. Watt (2014) 229 Cal.App.4th 1215, 1219-1220 [same].) Under the Chapman standard, an error is harmless if the record establishes bey ond a reasonable doubt that the
error did not contribute to th e jury’s guilty verdict. ( Chapman v. California
, supra , 386 U.S. at p. 24.) 5 The record here meets this exacting standard. The jury specifically found true the People’s allegati on that defendant attempted to murder Orosco “willfully, deliberately and with premeditation with in the meaning of Penal Code Section 664(a).” Ample eviden ce supported this conclusion. Barragan testified that defendant, who had been accusing her and Orosco of trying to “set him up” for months, looked at her a nd angrily threatened to “sta b these motherfuckers in the
back” minutes before the incident. Orosco testified that he an d defendant had argued
about defendant’s accusations earlier in the ev ening, and defendant “looked really mad”
and would not listen to Orosco’s assurances that no “set up” was in the works. After these incidents, defendant spen t time in his room, where he stored at least one knife, and

5 Under the less stringent Watson standard, a defendant is prejudiced if it is reasonably probable the verdict would have been more favorable to him absent the alleged error. ( People v. Watson (1956) 46 Cal.2d 818, 836.)12 remained angry to the point of “socking” th e wall and throwing things. Defendant armed himself with a deadly cutti ng instrument prior to seeking out Orosco for further conversation, and stabbed Orosco numerous times in response to punches from the
smaller man. Defense counsel did an admirable job of trying to discredit Barragan’s crucial testimony on many of these points by argui ng that Barragan was biased against defendant, impeaching her on several occa sions, and getting Gordon to concede on crossexamination that he did not remember the al leged threats or loud noises coming from defendant’s room. However, the verdict necessar ily reflects that the jury instead credited Barragan’s testimony and other un controverted evidence to find that defendant acted with malice during the premeditated attack. This finding distinguishes this case from People v. Vasquez (2006) 136 Cal.App.4th 1176, 1180, in which the failu re to instruct on selfdefense was prejudicial precisely because th e jury acquitted defendant of first degree murder and “found appellant did not go to the alley with a willful, deliberate, and premeditated plan to kill his cousin.” In li ght of the strong evidence presented and the jury’s express finding of premeditation, we find no prejudice to defendant under any
standard.
DISPOSITION The judgment of the trial court is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.
We concur:

EPSTEIN, P. J.

MANELLA, J.