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Filed 8/26/13 P. v. Plascencia CA3

NOT TO BE PUBLISHED

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

ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE PLASCENCIA,

Defendant and Appellant.

C068979

(Super. Ct. No. 09F06199)

Defendant Jose Plascencia, an inmate at New Folsom Prison, physically fought 

with Officer Wallace, Lieutenant Ventimiglia and Sergeant Quinn. He claimed he acted 

in self-defense in response to Wallace‟s “sudden aggression” and ensuing actions by 

other officers. The jury found defendant guilty of one count of battery by a prisoner of 

a non-confined person (Ventimiglia) and two counts of obstructing an officer in the 

performance of his duties (Ventimiglia and Quinn). It acquitted him of battery and 

obstruction of Wallace. 

Defendant appeals his conviction, contending the trial court failed to adequately 

instruct the jury on self-defense. He argues the court had a duty to instruct sua sponte 
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with CALCRIM No. 3470 (3470) and the failure to do so resulted in prejudicial error. 

As we explain, we disagree and shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Charges

The People charged defendant with two counts of battery by a prisoner on a nonconfined person (Pen. Code,1 § 4501.5) as against both Wallace (count one) and 

Ventimiglia (count two) and three counts of obstructing an officer in the performance of 

his duties as against Wallace (count four), Ventimiglia (count three) and Quinn (count 

five). (§ 69) They also alleged defendant had sustained three prior serious felony 

convictions. (§§ 1192.7, subd. (c), 667, subds. (b)-(i), 1170.12.)

People’s Case at Trial

Defendant was an inmate in the general population of New Folsom prison. In 

April 2009, defendant was in an interview room; Wallace and Ventimiglia were also in 

the room, while Quinn remained outside. 

The interview was going well; defendant was cooperative, no angry or harsh 

words were exchanged, and defendant was not handcuffed. At the end of the interview, 

defendant stood up, turned his back toward Wallace, and placed his hands behind his 

back to be handcuffed. He then suddenly spun toward Wallace, said “don‟t take this 

personal” and punched Wallace in the face. Wallace stumbled backwards. Defendant 

moved toward him and threw another punch. Wallace grabbed defendant‟s wrist and the 

men struggled as Ventimiglia came to assist Wallace. Ventimiglia grabbed defendant‟s 

shoulder and defendant hit him in the eye. Defendant continued to struggle with 

Ventimiglia and Wallace, punching at them and thrashing around to avoid being 

handcuffed. Quinn saw the men struggling and defendant swinging his closed fist at 

 

1 Further undesignated statutory references are to the Penal Code.
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Wallace. He forced the door open and defendant, Wallace and Ventimiglia fell to the 

ground. Quinn tried to restrain defendant in a bear hug and by grabbing his right hand 

and holding defendant against the wall. Defendant continued to resist, thrashing and 

swinging his arms. With the assistance of additional staff, defendant was ultimately 

subdued.

Defendant’s Case at Trial

Defendant admitted he struggled with the officers, but claimed he acted in selfdefense. He testified that as Wallace was placing him in handcuffs, Wallace asked if 

defendant had any information on misconduct by other inmates, to which defendant 

responded, “Fuck no.” Wallace then aggressively grabbed defendant‟s wrists, yanked his 

collar and hit the back of his head. Defendant then turned and hit Wallace. As Wallace 

was coming back at defendant, defendant tried to hit Wallace again and missed. 

Ventimiglia then came running toward defendant with his fist raised, looking as though 

he was going to hit defendant. Defendant was afraid he was going to be hurt by 

Ventimiglia, so defendant hit him. He thought the officers were going to beat him 

because he refused to provide information on other inmates. During the struggle, the 

officers “hit him all over.” Defendant denied ever saying it was not “personal.”

People’s Rebuttal Case

Wallace denied aggressively gabbing defendant‟s hands, the back of his collar or 

hitting him the head. He also denied asking defendant to inform on other inmates. 

Ventimiglia denied that either he or Wallace asked defendant to inform on other inmates 

and denied punching defendant in the face or hitting him in the head.

Instructions and Verdicts

The trial court instructed the jury that as an element of both battery and assault, the 

prosecution had to establish defendant did not act in self-defense. It also instructed that 

an officer is not lawfully performing his duties if using unreasonable or excessive force. 

The trial court further instructed the jury that a defendant is not guilty of resisting an
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officer who is lawfully performing his duties if the officer is using unreasonable or 

excessive force. It described and defined the lawful performance of a custodial officer‟s 

duties and a police officer‟s duties, each of which includes the provision that an officer is 

not lawfully performing his duties if using unreasonable or excessive force. Those 

instructions also specify that if an officer uses unreasonable or excessive force, a person 

may lawfully use reasonable force to defend himself. The trial court instructed the jury 

that a person‟s use of force to defend himself is reasonable if (1) it is the amount of force 

he actually believes is reasonably necessary to protect himself and (2) is no more force 

than a reasonable person in the same situation would believe is necessary. It did not read 

3470, regarding the general right to self-defense; neither party requested that instruction. 

The jury found defendant guilty of one count of battering Ventimiglia and 

obstructing Ventimiglia and Quinn. It acquitted him on all counts related to Wallace. 

In bifurcated proceedings, the jury found the prior conviction allegations true. The trial 

court struck one of the prior convictions and sentenced defendant to 25 years to life in 

prison.

DISCUSSION

I

Overview

Defendant contends the trial court prejudicially erred in failing to sua sponte 

instruct the jury on self-defense as set forth in 3470. As relevant to defendant‟s claims, 

3470 provides that:

“The defendant acted in lawful self-defense . . . if:

“1. The defendant reasonably believed that he was in imminent danger of 

suffering bodily injury or was in imminent danger of being touched unlawfully;

“2. The defendant reasonably believed that the immediate use of force was 

necessary to defend against that danger;

“AND
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“3. The defendant used no more force than was reasonably necessary to defend 

against that danger.

“[¶] . . . [¶]

“When deciding whether the defendant's beliefs were reasonable, consider all the 

circumstances as they were known to and appeared to the defendant and consider what a 

reasonable person in a similar situation with similar knowledge would have believed. If 

the defendant's beliefs were reasonable, the danger does not need to have actually existed.

“[¶] . . . [¶]

“[If you find that the defendant received a threat from someone else that [he] 

reasonably associated with [the victim], you may consider that threat in deciding whether 

the defendant was justified in acting in self-defense.]

“[¶] . . . [¶]

“The People have the burden of proving beyond a reasonable doubt that the 

defendant did not act in lawful self-defense. If the People have not met this burden, you 

must find the defendant not guilty of <insert crime(s) charged>.”

“It is well-settled that even in the absence of a request, the trial court must instruct 

the jury on the general principles of law relevant to the issues raised by the evidence 

(People v. Breverman (1998) 19 Cal.4th 142, 154) and on defendant's theory of defense 

where „“. . . it appears that the defendant is relying on such a defense, or if there is 

substantial evidence supportive of such a defense . . . .”‟ [Citations.]” (People v. Olguin

(1981) 119 Cal.App.3d 39, 46.) 

In this case, defendant was relying on a theory of self-defense and the failure to act

in self-defense is an element of the offense that the People must establish. Thus, some 

instruction on self defense was necessary. This does not mean, however, that the trial 

court erred in failing to include the language from the instructions that defendant now 

argues was required. As we explain post, there was no error.
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“Review of the adequacy of instructions is based on whether the trial court „fully 

and fairly instructed on the applicable law.‟ [Citation.]” (People v. Ramos (2008) 163 

Cal.App.4th 1082, 1088.) In examining the record for error in jury instructions, we 

consider the instructions as a whole and assume jurors are intelligent persons, capable of 

understanding and correlating all jury instructions which are given. (Ibid.) “„Instructions 

should be interpreted, if possible, so as to support the judgment rather than defeat it if 

they are reasonably susceptible to such interpretation.‟ [Citation.]” (Ibid.)

II

Specific Contentions

Defendant complains that “the lack of a [3470] instruction meant the jury was not 

directed to consider all the elements in the case which might be expected to operate on 

the mind of a person in [defendant‟s] circumstances, with respect to self-defense.” He 

adds that because 3470 was not given, the jury was not informed that: (1) if defendant‟s 

beliefs about the need to act in self-defense were reasonable, the perceived danger need 

not have actually existed; (2) the People had the burden of dispelling any reasonable 

doubts as to the existence of self-defense; and (3) a threat by one person, Wallace, could 

be interpreted to require self-defense against another person, such as Quinn and 

Ventimiglia. He observes that the absence of language on the need to avoid “imminent 

harmful or offensive” conduct contained in 3470 appeared to limit self-defense to a 

situation where the battery had already occurred. We address defendant‟s various 

contentions in the order we find most efficient.

A. Burden of Proof

Defendant first complains that by failing to give 3470, the trial court did not 

adequately inform the jury that the People bore the burden to dispel any reasonable doubt 

as to whether defendant‟s actions amounted to self-defense. We are not persuaded. 

The trial court described and defined the beyond a reasonable doubt standard 

(CALCRIM No. 220); it instructed the jury that each fact essential to establish guilt must 
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be proven beyond a reasonable doubt (CALCRIM No. 220); and it told the jury that the 

fact that defendant did not act in self-defense was a fact the People were required to 

prove as to battery by a prisoner on a non-prisoner, and the lesser included offenses of 

simple battery and simple assault. (§§ 4501.5, 242, 243, subd. (a); CALCRIM Nos. 

2723, 960, 915.) Thus, the jury was properly advised that the People bore the burden to 

dispel any reasonable doubts about whether defendant acted in self-defense.

B. Appropriateness of Unchallenged Instructions

Defendant next argues by failing to instruct with 3470, the trial court did not 

adequately advise the jury to consider “all the elements in the case which might be 

expected to operate on the mind of a person in [defendant‟s] circumstances.” Defendant 

does not complain that the instructions given were incorrect. Rather, he claims that they 

were incomplete in that they did not incorporate those portions of 3470 that instruct: (1) 

if defendant‟s beliefs about the need to act in self-defense were reasonable, the perceived 

danger need not have actually existed; (2) self-defense can apply when facing an 

imminent prospective application of force; and, (3) a threat by one person could be 

interpreted by defendant to require self-defense against another.

“„Generally, a party may not complain on appeal that an instruction correct in law 

and responsive to the evidence was too general or incomplete unless the party has 

requested appropriate clarifying or amplifying language.‟ [Citation.]” (People v. Hudson

(2006) 38 Cal.4th 1002, 1011-1012.) Defendant made no such request here. 

Accordingly, his claims of instructional error are forfeited.

In any event, the claims lack merit. The reasonableness of a defendant‟s beliefs 

and conduct are judged from the viewpoint of a reasonable person in the same position as 

defendant. (People v. McGee (1947) 31 Cal.2d 229, 238.) “To do this, [the jury] must 

consider all the „“„facts and circumstances . . . in determining whether the defendant 

acted in a manner in which a reasonable man would act in protecting his own life or 

bodily safety.‟”‟ [Citation.]” (People v. Jefferson (2004) 119 Cal.App.4th 508, 518, 
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original italics.) Here, the trial court appropriately instructed the jury that defendant was 

entitled to defend himself from unreasonable or excessive force by using the degree of 

force he actually believed was reasonably necessary to protect himself and use no more 

force than “a reasonable person in the same situation would believe is necessary for his 

or her protection.” (CALCRIM Nos. 2670, 2671, emphasis added.) The phrase “in the 

same situation” includes considering “all the elements which might be expected to 

operate on the mind of a person in defendant‟s circumstances.”

The trial court also clarified that the jury must decide all the facts based on the 

evidence admitted at trial. The failure to expressly reference specific evidence cannot 

reasonably be construed as a direction to the jury to exclude that evidence from its 

consideration. (People v. Spencer (1996) 51 Cal.App.4th 1208, 1220-1221.) Similarly, 

the court instructed the jury that it must follow the law as the court explained it and to 

follow the instructions to the facts as it found them. The court informed the jury that 

defendant had to actually and reasonably believe the use of force was reasonably 

necessary to protect himself. It is not reasonable to presume the jury added the 

nonexistent requirement that defendant be correct in his assessment of the danger he 

believed he faced. Thus, taken as a whole, the instructions adequately advised the jury to 

consider all the relevant circumstances in which defendant found himself. (Ibid.) 

While we agree that the instructions as given did not include an explanation that 

the person claiming self-defense must reasonably believe he is in imminent danger of 

being touched unlawfully or suffering bodily injury, this explanation does not apply to 

defendant‟s case. An inmate has a limited right of self-defense against an officer. 

(People v. Saavedra (2007) 156 Cal.App.4th 561, 569.) A correctional officer may 

lawfully use force on an inmate to restrain a person, to overcome resistance, to prevent 

escape, or in self-defense, but the use of force must be reasonably calculated to further 

the lawful purpose. (Pen. Code, § 835a; CALCRIM No. 2671; cf., Cal. Code Regs., tit. 

15, § 3268, subd. (a)(1).) The applicable statutes were fashioned to protect officers 
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“against violent interference with the performance of [their] duties” (People v. Buice

(1964) 230 Cal.App.2d 324, 336; see also People v. Martin (2005) 133 Cal.App.4th 776, 

782.) Thus, an inmate‟s right to self-defense against an officer applies only when the 

inmate is faced with an improper use of force by the officer, because that is what renders 

the officer‟s conduct unlawful. (See People v. Coleman (1978) 84 Cal.App.3d 1016, 

1023.) Thus, in this context, defendant did not have a right to use force to resist an 

officer unless that officer was actually using unreasonable or excessive force. 

Prospective force by an officer does not trigger an inmate‟s right to defend himself as 

does actual use of improper force.

Defendant further claims that the trial court was required to tell the jury that if it 

found defendant had received a threat from Wallace that he reasonably associated with 

Quinn and Ventimiglia, it could consider that fact in assessing the reasonableness of 

defendant‟s actions. Instructions need only be given on issues supported by substantial 

evidence. (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1055.) “Substantial 

evidence is „evidence which is reasonable, credible, and of solid value[.]‟ [Citations.] On 

review, we determine independently whether substantial evidence to support a defense 

existed.” (Id. at pp. 1055-1056.) Thus, to meet that standard in this case, there would 

have to be substantial evidence that defendant received a threat from Wallace and that he 

reasonably associated that threat with Quinn and Ventimiglia. There is not substantial 

evidence for either claim. 

There was no evidence that Wallace ever threatened defendant; rather, defendant‟s 

claim was that in response to defendant‟s refusal to inform on other inmates, Wallace 

assaulted him. Thus there was no evidence defendant “received a threat from someone” 

such that this portion of the instruction would be merited. (CALCRIM No. 3470; 

(Compare with People v. Minifie (1996) 13 Cal.4th 1055, 1061-1062, 1065-1066 

(Minifie); People v. Pena (1984) 151 Cal.App.3d 462, 469-472.) 
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Further, even were we to construe Wallace‟s hitting defendant as a threat received

by defendant from Wallace, there is no evidence defendant reasonably associated that 

threat with Quinn and Ventimiglia.

2 A self-defense claim is viewed from the perspective 

of the defendant--threats from a family and its friends, a clan, a gang or another group 

“united against [defendant]” may reasonably affect defendant‟s state of mind, particularly 

when the group has a reputation for violence known to defendant. (Minifie, supra, 13 

Cal.4th at p. 1066.) Here, there is no evidence that Wallace, Quinn and Ventimiglia were 

members of a group united against defendant. Other than their status as officers, there 

was no evidence of any particular relationship or history between the officers or 

involvement in any group. There is no evidence of any pre-existing animosity between 

defendant and the officers, no evidence of a history of unified activity by the officers, and 

no evidence of a record of concerted violence committed by the officers. Nor is there any 

evidence the officers had a reputation for any such conduct. This leaves only their status 

as fellow officers to support the inference they would act in concert to beat defendant 

because of his refusal to inform on other inmates. Their status as officers alone cannot 

reasonably support such an inference. To the contrary, when there is a physical 

altercation between an officer and an inmate, the other officers are obligated to intervene 

and break up, or end, the fight. (Cal. Code Regs., tit. 15, § 3271, 3286, 3300; see also 

Furtado v. State Personnel Board (2013) 212 Cal.App.4th 729, 746-747.) This is true 

whether defendant or Wallace were the aggressor; it is true even if Wallace were using 

excessive force. (See O'Neill v. Krzeminski (2d Cir.1988) 839 F.2d 9, 11 [“A law 

 

2 To the extent defendant argues his acquittal of counts related to Wallace weakens his 

conviction of counts related to Quinn and Ventimiglia, we note only that it is well-settled 

that an acquittal on one charge does not change the strength of the evidence on another, 

which might have been due to lenity or other reasons. (See People v. Lewis (2001) 25 

Cal.4th 610, 655–656; People v. Brown (1985) 174 Cal.App.3d 762, 769; People v. Pahl

(1991) 226 Cal.App.3d 1651, 1656–1657.)
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enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose 

constitutional rights are being violated in his presence by other officers”].)

An inference is not reasonable if it is based only on speculation. (People v. 

Hughes (2002) 27 Cal.4th 287, 365.) On this record, the reasonable inference to be 

drawn from the evidence of Quinn and Ventimiglia joining in the fight between 

defendant and Wallace is that they were joining in order to end the fight--in other words, 

doing their duty. “The right of the accused to have the jury instructed upon every theory 

of his innocence of the crime charged does not extend to a claim of self-defense based 

upon purely imagined facts or upon inference that could not be drawn by rational minds.” 

(People v. Hudgins (1967) 252 Cal.App.2d 174, 179.) Since there was not substantial 

evidence to support this theory of defense, the court was not obligated to instruct on it. 

(People v. Joiner (2000) 84 Cal.App.4th 946, 972; see also People v. Breverman (1998) 

19 Cal.4th 142, 162.) 

DISPOSITION

The judgment is affirmed.

 DUARTE , J.

We concur:

 BLEASE , Acting P. J.

 MAURO , J.