Filed 2/18/15 P. v. Ward CA2/4 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

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 Superior 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 assault with a deadly weapon (§ 245, 

subd. (a)(1)) in connection with the January 3, 2011, stabbing of Oscar Orosco. The jury 

also found true for both counts allegations that defendant personally used a deadly 

weapon (§ 12022, subd. (b)(1)) and 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 defendant to life without parole plus six years 

on the attempted murder count, related allegations, and prison priors. The court 

sentenced defendant to a midterm sentence of three years on the assault count, plus an 

additional four years for the enhancements. The latter sentence 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 PROCEDURAL 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 apartment, which was located within a multi-building complex. Defendant 

lived in the same apartment 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 became friends. They frequently hung out and 

 

1 All further statutory references are to the Penal Code unless otherwise indicated. 
3

drank together and did not have any problems or “bad blood” between them. At one 

point in 2010, Orosco even stayed at defendant’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 did 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. Defendant complained to Orosco that he did not get to “kick it” 

with Orosco as much after Barragan began living with him. 

 On January 3, 2011, the night of the incident, 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 apartment complex stopped by and visited with 

Orosco. After Orosco’s friends left, defendant started “tripping out” and asking who 

Orosco’s friends were and why they had come. Defendant repeatedly accused Orosco of 

trying to “set him up.” Defendant “didn’t want to stop” making accusations even after 

Orosco explained that his friends were “regular 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.” Eventually 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 defendant’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 Barragan, 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-zipped black jacket, “shaking his hands like mad,” 

and “saying it mad.” He also looked at Barragan and said that he was “going to stab 

these motherfuckers in the back.” Although defendant did not mention names and she 
4

did not ask him for clarification, Barragan knew defendant was talking about her and 

Orosco because he was looking at her and had begun accusing her and Orosco of trying 

to “set him up” a couple of months earlier. He had never mentioned 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 Patini walked her to the 

front door, Barragan heard what sounded like defendant “socking” the walls and 

throwing things in his room. Barragan estimated 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 cigarette. He saw Orosco and 

the two began “shooting the breeze.” Defendant showed up about five minutes later. 

Defendant walked over to Orosco 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, there initially was “no animosity” between defendant and 

Orosco. They spoke quietly for about one to two minutes 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 punched defendant in the face 

“with all his might.” Defendant immediately responded in kind with a punch to Orosco’s 

face, and then “[i]t was just back and forth punching, punching, punching, punching.” As 

far as Gordon could tell, it was a fistfight; he did not see any type of weapon. 

Eventually, one of the men picked up the other 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 defendant 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 the ground, Gordon 

noticed a lot of blood and stopped the fight by pulling defendant “off of” Orosco. 

Orosco’s face was “really bloody” and there was a “pretty big” hole in his neck. Blood 

was “pumping out” of the neck wound, and “there was blood everywhere.” Gordon 

yelled for help and ran to alert Orosco’s parents. Gordon was not sure where defendant 

was, but remembered that he was not present when emergency responders arrived on the 

scene. Gordon remembered previously listening to an audio recording of himself telling 

detectives that defendant ran into his apartment and then left the scene.2 

 According to Manuel, he was eating dinner on January 3, 2011, when Barragan 

told him that Orosco was calling for him. Manuel also heard Orosco yelling for help. 

Manuel went to the courtyard and saw Orosco kneeling there. Manuel saw defendant 

standing either on top of Orosco or to his side, punching him with his hands. Manuel did 

not see anything in defendant’s hands. Defendant ran away into his apartment building 

when Manuel approached. Manuel carried or assisted Orosco 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 the 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 accompanied into the apartment, 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 about 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 record when and under what circumstances 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 prosecuting 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 toward her. Blood was 

“jumping” from his neck into the air. Barragan asked him what happened and he said he 

didn’t know. 

 Barragan helped Orosco into the apartment, towards 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 tried 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 took Orosco to the hospital, where he 

remained in a coma for three weeks. The parties later stipulated 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 Barragan, 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 denied 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 January 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 Department found blood on defendant’s 

bedroom door. Inside the bedroom, they found 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 stained shirts to the lab for DNA analysis, 

along with some swabs containing 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 was included in other swab samples taken from the shirts. 

The blood from the courtyard matched Orosco’s DNA profile. 3 

B. Jury Instructions 

 The court held a jury instructions conference after both sides rested but prior to 

closing arguments. While reviewing CALCRIM No. 875 (Assault with Deadly Weapon 

or Force Likely to Produce Great Bodily Injury), the 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-defense theory, argued that the jury should be 

instructed on the self-defense element of CALCRIM No. 875 because “the only 

testimony we have regarding the actual incident 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 victim did punch him, then the two began to 

fight and exchange blows, and then the victim 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 analyzed, 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 self-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 the self-defense portion of CALCRIM No. 

875 in its oral or written instructions to the jury. No other CALCRIM 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 the 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: Self-Defense or Defense of Another) and 

3470 (Right to Self-Defense or Defense of Another (Non-Homicide)), and should have 

included the contested self-defense element in CALCRIM No. 875 (Assault with Deadly 

Weapon or Force Likely to Produce Great 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 and non-homicide crimes. (See § 197; § 693; 

CALCRIM No. 505 [Justifiable Homicide: Self-Defense or Defense of Another], 

CALCRIM No. 3470 [Right to Self-Defense or Defense of Another (Non-Homicide)].) 

“For self-defense, the defendant must actually and reasonably believe in the need to 

defend, the belief must be objectively reasonable, and the fear must be of imminent 

danger to life or great 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 reasonable 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, being assaulted with fists does 

not generally permit a person to respond with deadly 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 & Epstein, Cal. Criminal Law, supra, § 75, p. 517.) 

 It matters little for our purposes that defendant expressly requested 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 evidence [Citation]—evidence sufficient for a 

reasonable jury to find in favor of the defendant [Citation]—unless the defense is 

inconsistent with the defendant's theory 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, that is, evidence sufficient to deserve jury 

 

4

 In the context of homicide crimes, self-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 threat 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. Nevertheless, ‘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 malice and commits no greater offense than 

manslaughter.’ [Citation.]” (People v. Elmore (2014) 59 Cal.4th 121, 134.) 

“Unreasonable self-defense is ‘not a true defense; rather, it is a shorthand description of 

one form of voluntary manslaughter.’ [Citation.] Whenever there is substantial evidence 

that the defendant killed in unreasonable self-defense, the trial 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 accordingly 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 evidence, but only whether ‘there was evidence which, if 

believed by the jury, was sufficient to raise 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. Although Orosco initially swung at defendant’s 

face “with all his might,” defendant did not respond with deadly force 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 conviction of assault by means of force likely to 

produce great bodily injury.”]) Instead, defendant 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 testified 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 and Orosco hit the ground. 

 There was no evidence that Orosco pulled, threatened defendant with, or even 

possessed a weapon, or that defendant (reasonably 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 changed 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 circumstances, 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 defendant suddenly feared for his life or safety 
11

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 and perception of the victim’s 

behavior at the time he wielded 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 must 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 instructions on self-defense 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 beyond a reasonable doubt that the 

error did not contribute to the 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 allegation that defendant attempted to 

murder Orosco “willfully, deliberately and with premeditation within the meaning of 

Penal Code Section 664(a).” Ample evidence 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 and angrily threatened to “stab these motherfuckers in the 

back” minutes before the incident. Orosco testified that he and defendant had argued 

about defendant’s accusations earlier in the evening, 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 spent 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” the wall and throwing things. Defendant armed 

himself with a deadly cutting 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 arguing that Barragan was biased against 

defendant, impeaching her on several occasions, and getting Gordon to concede on crossexamination that he did not remember the alleged threats or loud noises coming from 

defendant’s room. However, the verdict necessarily reflects that the jury instead credited 

Barragan’s testimony and other uncontroverted 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 failure to instruct on selfdefense was prejudicial precisely because the 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 light 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.