People v. Narcisse CA1/4

Filed 10/18/13 P. v. Narcisse CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A137283 v. DJOLIBA NARCISSE, (Contra Costa County Super. Ct. No. 051208255) Defendant and Appellant.

A jury convicted defendant Djoliba Narcisse of mayhem (Pen. Code, § 203)1 and assault with a deadly weapon (§ 245, subd. (a)(1)) after he stabbed a female acquaintance outside a bar. The jury also found various enhancements to be true, and the trial court sentenced him to nine years in prison. On appeal, and for the first time, Narcisse contends that the trial court erred in instructing the jury that self-defense is unavailable to someone who provokes a fight with the intent to create an excuse to use force. He contends that the instruction was unsupported by the evidence and may have misled the jury. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND Narcisse stabbed a woman outside a Pinole bar in the early morning hours of November 11, 2011, cutting her from the middle of her forehead, through her left ear, and down to her neck behind her ear. The incision was life threatening. It caused a

1 All statutory references are to the Penal Code.

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significant loss of blood, required surgery, and left the victim with a visible scar and hearing problems. At trial, witnesses provided contrasting versions of exactly what happened. According to the victim, she first encountered Narcisse the previous summer at the same bar when she was there with her companion. On that occasion, Narcisse followed the victim and her companion out of the bar, asked the victim for her phone number, persisted in soliciting the number even after the victim refused to give it, and prevented the victim and her companion from getting into their car until someone who was with Narcisse persuaded him to give up. The victim stated that she saw Narcisse about two other times at the same bar, these times without incident, before the night of the stabbing. The victim testified that on the night of the stabbing, Narcisse bumped into her inside the bar “with force, pow” while she was standing still. The victim told him, “ „That‟s not how you say excuse me to somebody,‟ ” and Narcisse responded, “ „If you want to make it up out of here alive, I suggest you leave now.‟ ” The victim testified that she was somewhat upset by the encounter but did not take Narcisse seriously. She went outside to calm down, smoked a cigarette, then reentered the bar. The victim and her companion decided to leave the bar around 1:45 a.m., and they saw Narcisse holding a knife and arguing loudly in the parking lot with another woman. The victim told the woman with Narcisse that she “could do better.” Narcisse then said to the victim, “ „Shut up or I‟ll kill you, bitch,‟ ” and around that time, the victim‟s companion asked Narcisse (in a joking tone, according to the victim) what he planned to do with his knife. The victim and her companion then started to walk away toward the companion‟s car, when Narcisse stabbed the victim from behind. The victim tried to fight him off but fell to the ground, and Narcisse kneeled over her. The victim‟s companion screamed at Narcisse to get off the victim, hit him, and said she was going to call the police. Narcisse went toward the victim‟s companion with his knife, but he then ran away. Other witnesses provided different accounts of the night‟s events, and some of their testimony supported a theory that Narcisse may have acted in self-defense. The