Filed 5/1/14 P. v. Williams CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,

v.
STEPHEN LAMONT WILLIAMS,
Defendant and Appellant. B243120
(Los Angeles County Super. Ct. No. TA122155)

APPEAL from a judgment of the Superior Court of Los Angeles County. Allen J. Webster, Judge. Affirmed. Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorn ey General, James Will iam Bilderback II and Alene M. Games, Deputy Attorneys Gene ral, for Plaintiff and Respondent.2 A jury found Stephen Williams guilty of one count of second degree burglary, two
counts of assault with a deadly weapon and found true one gr eat bodily injury
enhancement. Williams attacks the assau lt convictions and the sufficiency of the evidence to support the great bodily injury enhancement. We affirm the judgment.
FACTS AND PROC EEDINGS BELOW
In the still-dark hours of the morning on February 21, 2012, Viridiana Lopez
walked out of her house inte nding to go to work. She not iced that the dome light was
on inside her brother Raul’s truck and saw Williams sitting in the driver’s seat. She recognized Williams from havi ng seen him in the neighbor hood. Viridiana screamed, “Raul!” Williams pulled his hoodie over his h ead, got out of the truck and rode off on a bicycle. Hearing Viridiana’s screams, her husband Marvin and her brother Raul ran out of the house. Marvin got a qu ick look at the person who had been in the truck before he disappeared on the bicycle. It was too dark to see the person’s face but he could tell it was a male. No one called the police.
Ten or fifteen minutes later Viridiana drove to a gas station to buy coffee and
Marvin and Raul followed her in Raul’s tr uck. When the group pulled into the gas station Viridiana saw Williams walking down the sidewalk. She pointed to him and told Raul, “that’s him.” Marv in and Raul, in Raul’s truc k, drove along side Williams who began to run as soon as he saw them. As he ran, Willia ms spontaneously shouted: “I didn’t get inside your truck.” Marvin and Raul got out of the truc k and pursued Williams on foot. When Williams tripped and fell Raul “grabbed” him and Marvin ca me to assist. Together
Marvin and Raul tried to hold Williams dow n. Marvin pressed his knee into Williams’
stomach and he and Raul tried to seize Williams hands.
Viridiana arrived on the scene while the struggle was underway and told Raul and
Marvin that Williams wa s the man she saw in the truck that morning. Raul told Viridiana to call the police.3 While Viridiana was calling the police, W illiams escaped the grasp of Raul and Marvin and started swinging at them and Viri diana with screwdrivers he held in each
hand. Williams hit Viridiana with his fist and stabbed Marvin with a screwdriver on the right side of his face. At some point in th e scuffle Raul suffered a lacerated lip. Raul, Marvin and Viridiana managed to wrestle Williams to the ground. Viridiana stood
behind Williams holdi ng his hoodie with one hand and using her other hand to call the police on her cellphone. She and the two me n were able to detain Williams until the police arrived.
Williams testified in his own defense. He stated that he was walking from his home to a donut shop when he was “‘jump ed by some fuck’in Mexicans.’” A truck made a quick U-turn and stopped near him. Two men (later identified as Raul and Marvin) got out. Raul said: “Come here mother fucker.” Williams started to run because he thought the men might be members of a riva l gang. Raul and Marvin chased
Williams down the street. Wh en they caught up w ith him Raul accused him of “fuck’in with my truck.” Williams responded: “No man. It wasn’t me.” Raul and Marvin began “kicking” and “stomping” Williams. Later, Williams said, Viridian a joined Ma rvin and Raul and the three of them were “standing over me beating me, kicking me and hitting
me.” Williams testified that when he he ard Viridiana say she was going to call the police: “I started fighting back . . . becau se I was on the run from parole.” He also
testified that he took a screwdriver and an i ce pick with him everywhere he went because “I’m in a war zone, you know.” The jury found Williams guilty of one c ount of second degree burglary and two
counts of assault with a d eadly weapon. It found Williams personally inflicted great bodily injury upon Marvin.4 DISCUSSION
I. WILLIAMS FORFEITED ANY CO MPLAINT ABOUT ERRORS IN THE INSTRUCTIONS ON SELF-DEFENSE BY FAILING TO RAISE THEM IN THE TRIAL COURT.

At trial Williams claimed that he was not the person in Raul’s truck, did not know why Raul and Marvin jumped him and th at he fought them when they attacked him because he thought they we re rival gang members. The court instructed the jury on th e right of self-defense in general (CALCRIM No. 3470) 1 , the right to self-defense of one who engages in mutual

1 CALCRIM No. 3470 provides: “Self-defen se is a defense to Assault With A Deadly Weapon. The de fendant is not guilty of those crim es if he used force against the other person in lawful self-defense. The defendant acted in lawful self-defense if: 1. The defendant reasonably be lieved that he was in imminent danger of suffering bodily injury; 2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; AND 3. The defendant used no more force th an was reasonably necessary to defend against that danger. Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of bodily injury to himself. Defendant’s belief must have been reasonable and he must have acted because of that belief. The de fendant is only entitled to use th at amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defend ant did not act in lawful self-defense. When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were kn own to and appeared to the de fendant and consider what a reasonable person in a similar situation with similar knowledge wo uld have believed. If the defendant’s beliefs were reasonable, th e danger does not need to have actually existed. A defendant is not required to retreat. He or she is entitled to st and his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of bodily injury has passed. This is so even if safety could have been achieved by retreating. The People have the burden of proving beyo nd a reasonable doubt that the defendant did not act in lawful self-defense. If the Pe ople have not met this burden, you must find the defendant not guilty.”5 combat (CALCRIM No. 3471) that the right of self-defense does not apply if the defendant provokes a fight with the intent to create an excuse to use force (CALCRIM No. 3472) and that the right to use force in self-defense expires when the attacker withdraws or is no longer capa ble of inflicting inju ry (CALCRIM No. 3474). On appeal Williams contends that those instructions were insufficient. He argues that the court had a sua sponte duty to in struct the jury that a person performing a citizen’s arrest may use only that amount of restraint as is reasonable to detain the
arrestee until law enforcement officers arrive 2 and that the arrestee is privileged to “use
reasonable force to defend life and lim b against excessive force[.]” ( People v. Curtis (1969) 70 Cal.2d 347, 357; 4 Witkin, Cal. Crim inal Law (4th ed. 2012) Pretrial Procedure § 13, p. 248.) Williams forfeited this argument by not re questing the customized instruction he now claims should have been given. As a general rule courts will not consider alleged errors that could have been cured in the trial court had they been presented there. ( People v. Saunders (1993) 5 Cal.4th 580, 589-590.) In some instances, an appella nt may seek review of an instruction “even though no objection was made ther eto in the lower court” if the “substantial rights of the
defendant were affected thereb y.” (Pen. Code, § 1259.) But this exception to the usual rule of forfeiture only app lies to an instruction “given , refused or modified.” ( Ibid .) We agree with Williams that the trial court must instru ct sua sponte on the general principles of law relevant to the issues raised by the evidence. ( People v. Flannel (1979) 25 Cal.3d 668, 681.) This duty is met where the instructions correctly state the applicable law. The court does not have a duty create on its own additional or clarifying instructions. As our high court explained in People v. Lang (1989) 49 Cal.3d 991, 1024, “A party may not complain on ap peal that an instruction corr ect in law and responsive to

2 Penal Code section 835 states in releva nt part: “The person arrested may be subjected to such restraint as is re asonable for his arre st and detention.”6 the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.” Here the c ourt instructed the jury on the general right
to use force in self-defense . If the jurors had believed Williams’ contention that Raul,
Marvin and Viridiana attacked him for no valid reason and that he fought back only to protect his “life and limb” against imminent dang er of bodily injury and that he used no more force than was reasonably necessary to defend against th at danger the jurors would have acquitted him of the burglary and the assa ult charges. Instruct ions on the privilege to use force in resisting detention or arrest would have been surplusage. Williams argues, however, that instructions on citizens’ arrests and resisting arrest were necessary because the pros ecutor introduced that issue in to the case in her closing argument to the jury. The prosecutor told th e jury: “[I]f you believe the testimony of the witnesses, [Williams] doesn’t have a right to self-defense. He does not. They were trying to detain a fleeing suspect until the pol ice came. They have a right to do that.
There is no law in those instructions te lling you that they acted unlawfully unless you believe [Williams] is the wrong person who had no idea what was going on and really felt that he was being chased by gang member s.” Williams was not prejudiced by this argument because it conceded the legal basis of his defense: he was not guilty of assault if he reasonably believed that he was being pursued and atta cked by gang members. In any case, defense counsel did not object to the prosecutor’s argument and so the issue cannot be addressed in this appeal. ( People v. Harris (2013) 57 Cal.4th 804, 852.) Finally, Williams maintains that his trial counsel provided ineffective assistance in failing to request an instruction on the privile ge to use self-defense in resisting an unreasonable detention and failing to object to the prosecutor’s argument that a fleeing felon has no right to self-defense. We disagr ee. An instruction on th e privilege to resist
excessive force in a detenti on would only make se nse if Williams was willing to concede
there was evidence that would allow the jury to find he bur glarized Juan’s truck. Otherwise, as we discussed above, the in struction would add no thing to the general
instruction on self-defense that the court gave. Defense counsel could reasonably7 conclude that as a tactical matter it would be better to stick with the SODDI 3 defense rather than present the ju ry with two conflicting defenses.
II. SUFFICIENT EVIDENCE SUPP ORTED THE ENHANCEMENT FOR GREAT BODILY INJURY TO MARVIN. Penal Code section 12022.7, subdivi sion (f) defines “great bodily injury” as “a significant or substantial physical injury.” This standard is commonly established by “evidence of the severity of the victim’s physical injury, the resulting pain, or the medical care required to treat or repair the injury.” ( People v. Cross (2008) 45 Cal.4th 58, 66.) The jury, instructed in th e language of Penal Code section 12022.7, subdi vision (f), found that Williams in flicted great bodily injury
on Marvin based on th e following evidence. In his attempt to detain Williams, Marv in received a laceration on the right side of his face. An officer who responde d to the scene testifie d that the cut was a quarter inch long. Paramedics applied a Band-Aid to the cut and Marvin went to work. Later that day, however, blood so aked through the Band-Aid and after work Marvin went to the hospital where a doc tor cleaned the wound and applied six
stitches. When Marvin testified at trial f our months after the in cident he exhibited a scar which the prosecutor estimated as be tween two-thirds and three-fourths inch in length. Williams argues on appeal that a quarter inch cut that required six
stitches does not meet the standard of a “s ignificant or substantial” injury as a matter of law. The evidence showed, however, that while the cut appeared superficial at first it contin ued to bleed throughout the day and had to be sutured at a hospital suggesting that the wound was a deep puncture, not a shallow

3 In the jargon of criminal law attorn eys the acronym SODDI stands for “Some Other Dude Did It.” (Uleman, Conditiona l Relevance and the Admission of Party Admissions (2008) 36 Sw.U . L.Rev. 657, 668.)8 scratch. Moreover, the cut left a scar betwee n two-thirds and three-fourths of an inch on
the side of Marvin’s face. Here, the court instructed the jury on wh at constitutes a “great” bodily injury and the jury, applying contemporary community norms , found that Marvin’s injury met that standard. We cannot say as a matte r of law that the jury erred.
DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED.

ROTHSCHILD, Acting P. J. We concur:

CHANEY, J.

JOHNSON, J.