Not to be published in the official reports

The trial court instructed the jury as follows with CALCRIM No. 3472: "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 evidence supports the inference that appellants instigated the fistfight as a pretext for using a firearm. Salas told Octavio he wanted to set up a fistfight between a Colonia member and "Johnny" of DSK. He asked Alvino to provide "back up." Alvino took a TEC-9 and a Makarov when he and Alvino went to meet Salas. Alvino, Salas, and Lino gathered with other Colonia members in the alley for about 20 minutes before going to the Lopez building. Alvino gave the TEC 9 to Lino. He and Lino each wore a sweatshirt, and put a gun under it. Alvino testified that he thought Salas would fight a DSK member, with Alvino and Lino providing back up. However, Alvino and Lino walked in front of Salas as they walked toward the Lopez building, and Alvino did not know if Salas even entered the courtyard with them. Appellants also claim that "there is no evidence that Lino or Alvino knew that Gonzalez and Abraham would arm themselves." The record belies their claim. Alvino testified that he anticipated that DSK members would be armed.

The court did not err by instructing the jury with CALCRIM No. 3472. Even if the evidence had not supported the use of CALCRIM No. 3472, the associated error would be harmless under any standard of review. (CALCRIM No.200) The court also instructed the jury that some of the instructions might not apply under the facts of the case, and that the jury had to decide the facts, and follow the instructions that applied to the facts as it found them. If the evidence did not support CALCRIM No. 3472, the jury would simply have ignored it. (People v. Cross (2008) 45 Cal.4th 58, 67; People v. Watson, supra, 46 Cal.2d at p. 836; Chapman v. California, supra, 386 U.S. at p. 24.)

Lino, joined by Salas and Alvino, contends that the trial court committed reversible error and violated their federal constitutional rights by failing to instruct the jury sua sponte that "[a] defendant who provokes or aggresses with nonlethal violence and is met with lethal force regains the privilege of self defense." We disagree.

Appellants claim that the failure to instruct jurors that a defendant can regain the privilege of self defense where he is met with lethal force in response to provoking the victim with nonlethal violence was prejudicial. They assert that a reasonable juror could have found that the defendants entered the Lopez courtyard "to pursue the agreement to commit battery [but] were disqualified from asserting a self defense, as initiators and so they were guilty even if Gonzalez was the first to reach for a firearm." They further argue if the court had instructed the jurors that the "use of lethal force by the victim re-establishes a right of self-defense, the jury would have had to consider whether Gonzalez's act of reaching for a firearm was the sort of lethal force that re-established [appellants'] right of self defense."

Assuming without deciding that the trial court erred by failing to instruct the jury that a defendant could regain his right of self defense, the error was harmless under any standard of review. Using CALCRIM No. 505, the court instructed the jury that a defendant can act in lawful self-defense or defense of another if "[t]he defendant used no more force than was reasonably necessary to defend against that danger." It further instructed the jury that "[t]he defendant is only entitled to use that 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 killing or attempted kill[ing] was not justified," and that "[a]defendant is not required to retreat. He is entitled to stand his ground and defend himself and if reasonably necessary, to pursue an assailant until the danger of death or great bodily injury has passed. This is so even if safety could have been achieved by retreating." (CALCRIM No. 505.)

"The trial court's instructions assumed that defendant had not lost [the right of self defense]." (People v. Johnson (2009) 180 Cal.App.4th 702, 711.) The pivotal question for the jury, if they believed appellants acted in self defense (or imperfect self defense), was whether appellants exercised that right in a reasonable manner. We are convinced beyond a reasonable doubt that the jury would conclude appellants did not act in a reasonable manner. Appellants argued to the jury that Gonzalez reached for his gun and Octavio's body was blocking bullets intended for Gonzalez. However, Lino fired four bullets at Octavio from close range and inflicted the fatal wounds. Together, he and Alvino fired more than 20 rounds at armed and unarmed victims, and repeatedly pistol whipped and shot Abraham in the face as he lay helpless on the ground. The trial court instructed the jury to determine whether the appellants acted in reasonable self-defense, just as it would have done if the jury had decided that appellants had regained the right to defend themselves. It was thus unnecessary for the court to instruct them that appellants could regain the right of self defense where the victims used excessive force. (See People v. Johnson, supra, 180 Cal.App.4th at p. 711 [Where court instructed jury with CALCRIM Nos. 3472 and 505, it was unnecessary to instruct with CALCRIM No. 3471.)¹² For the same reasons, the court properly would have refused a request by defense counsel to give such an instruction. We therefore reject appellants' contention that trial counsel's failure to request the instruction constituted the ineffective assistance of counsel.

Substantial Evidence Supports Salas's Convictions

Salas contends that there is not sufficient evidence to support his second degree murder and his attempted murder convictions under the natural and probable consequences theory. We disagree. Salas bases this contention upon a premise that we rejected in considering appellants' attack on the natural and probable consequences jury instruction, i.e., there was not sufficient evidence murder would be the natural and probable consequence of the intended battery.

Sentencing

Alvino contends that the trial court cited improper factors to justify its imposition of consecutive sentences for the three attempted murders. We disagree. Alvino forfeited these claims by failing to raise them below. (People v. Scott (1994) 9 Cal.4th 331, 353, 356.) Waiver aside, it is not reasonably probable that appellant would obtain a more favorable sentence if the mater were remanded. (People v. Champion (1995) 9 Cal.4th 879, 934, overruled on other grounds in People v. Combs (2004) 34 Cal.4th 821, 860 [upholding admission of gang evidence].)

In sentencing Alvino, the trial court imposed a 9-year upper term for the count 6 attempted murder, with consecutive middle terms of 2 years 4 months for each of the count 7 and 8 attempted murders. The court cited the same justification in each case: the crimes were independent and involved separate acts of violence. It also cited additional factors as justifying a high-term sentence. Alvino contends that the factors cited by the court were improper because he did not "personally" commit multiple acts of violence. Even if that premise were valid, he actively aided and abetted Lino, and supplied the weapon and ammunition he used to fire more than 20 rounds at the victims. Alvino also challenges the consecutive sentences for all three crimes because, he claims, they were committed with the same intent and objective. That fact, if true, is not controlling. (People v. Valenzuela (1995) 40 Cal.App.4th 358, 366 [where a defendant's conduct results in multiple deaths, "[t]he trial court should have the discretion to make [the defendant] 'pay' for [multiple] deaths"].) Finally, he argues that the court made improper dual use of the fact that he used a gun. We disagree. The court did not cite gun use as an aggravating factor. Further, where a trial court cites an erroneous factor as supporting a sentencing choice, the error is harmless if a single valid factor in aggravation justifies the sentencing choice. (People v. Osband (1996) 13 Cal.4th 622, 730.) The multiple aggravating factors set forth in the California Rules of Court support the court's selection of consecutive terms for Alvino's crimes. For example, the crimes disclosed a high degree of cruelty, viciousness or callousness (rule 4.421, subd. (a)(1)); Alvino engaged in violent conduct that indicates a serious danger to society (rule 4.421, subd. (b)(1); he had served a prior prison term (rule 4.421, subd. (b)(3); and he was on parole when he committed the crimes (rule 4.421, subd. (b)(4).)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.

James P Cloninger, Judge
Superior Court County of Ventura
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Ralph H. Goldsen, under appointment by the Court of Appeal, for Defendant and Appellant Lino F. Hernandez.