People v. Lopez CA2/6

Filed 11/19/13 P. v. Lopez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B243343 (Super. Ct. No. 2010030236) Plaintiff and Respondent, (Ventura County) v. EDUARDO CERVANTES LOPEZ, Defendant and Appellant.

Eduardo Cervantes Lopez appeals his conviction by jury of assault with a 1 deadly weapon (Pen. Code, § 245, subd. (a)(1)) with special findings that he personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)) and committed the assault for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)). Appellant admitted two prior prison term enhancements (§ 667.5, subd. (b)) and was sentenced to eight years state prison. Appellant contends that the trial court erred in not giving a Hecker instruction (People v. Hecker (1895) 109 Cal. 451) on the use of deadly force to repel a sudden and perilous threat by an opponent in a fist fight. We affirm. Facts and Procedural History On the afternoon of August 23, 2012, appellant confronted Bobby Dominquez as he worked on a car outside an Oxnard apartment. Appellant, an active member of the El 2 Rio Troublestreet gang, asked in an angry voice "Ey, where you from?" It was a gang term

1 All statutory references are to the Penal Code. 2 Appellant was 36 years old and went by the moniker Pleito which means "fight."

likely to lead to violence. Dominquez, a member of the Colonia Chiques street gang, answered "What's it to you" and resumed work. Appellant replied, "I'm asking you a fucking question, dog . . . . Where you from?" Rafael Gonzalez, Dominguez's friend, watched as Dominguez argued with appellant. At some point, appellant said "Fuck Colonia" and, taunting Gonzalez and Dominguez, said "What? Are you both going to jump me?" Gonzalez stepped back and said "No, it's one on one." Appellant said, "Let's take it to the alley" and exchanged punches with Dominquez. Dominguez punched appellant on the side of the head, causing appellant to fall down on one knee. Appellant drew a large kitchen knife from his pocket, said "Big bad El Rio," and stabbed Dominguez twice in the chest and once in the abdomen. Oxnard Police arrested appellant minutes later. Appellant had already changed his shoes, shirt and pants, and hid the knife. Officers searched appellant's bedroom and found drug paraphernalia, a glass smoking pipe, a metal box and notebook with the words "El Rio" printed on it, and a syringe commonly used to inject heroin. A kitchen knife was hidden under the couch cushion. Rafael Gonzales told the police that appellant provoked the fight when he challenged Dominguez and said, "Fuck Colonia." Gonzalez did not recall who threw the first punch but did see appellant stab Dominguez and run. This was corroborated by the neighbor, 14-year-old Cynthia G., who heard yelling and saw appellant stab Dominguez. No one saw Dominguez with a weapon. At trial, appellant claimed that Dominguez was the aggressor and took his shirt off and shouted "Colonia Chiques." Appellant was concerned because he was on Colonia Chiques gang turf and feared that Dominguez and Gonazalez would "beat me till I am dead or lose conscious[ness]." On cross-examination, appellant admitted that Dominguez did not have a weapon, that he did not know anything about Dominguez or Gonzalez, and that it was a one-on-one fight. The prosecution argued that mutual combat and self-defense were the only issues. Defense counsel told the jury that appellant had the right to stand his ground and the