People v. Moralez CA3

Filed 3/16/15 P. v. Moralez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C076091

Plaintiff and Respondent, (Super. Ct. No. 13F06775)

v.

FIDEL MORALEZ,

Defendant and Appellant.

A jury found defendant Fidel Moralez guilty of robbery and assault that occurred when defendant shoplifted from a Safeway grocery store in midtown Sacramento and then stabbed a loss prevention agent in the arm. Defendant appeals from his conviction, contending: (1) the court violated his right to due process in refusing his pinpoint instruction; (2) the court erred in granting the People’s request to instruct that the right to self-defense may not be contrived; (3) the alleged instructional errors together violated his right to due process; (4) the court erred

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in discharging a juror who was ill; and (5) the effect of all the alleged errors was prejudicial. Disagreeing, we affirm. FACTUAL AND PROCEDURAL BACKGROUND In October 2013, the Safeway store had on duty a uniformed security guard, Lance Brewer, and two plain clothes loss prevention agents, Chriss Grimble and Michael Nicholson. Around 5:00 p.m., Grimble saw defendant hide sandwiches, cough syrup, and bananas in his clothes. Grimble alerted Nicholson to what was going on, and Nicholson said he had seen it, too. Defendant left Safeway without paying. The agents followed defendant, and Grimble yelled to him, “ ‘Hey.’ ” “ ‘Hey, I am talking to you.’ ” Defendant turned around and looked at Grimble, who said, “ ‘We’re store security.’ ” Defendant “just stood there and looked at [the agents].” Grimble got in front of defendant, Nicholson came around the other side, and Grimble put his “hand out” and said, “ ‘Just hold on for a minute.’ ” Nicholson said, “ ‘Just come back inside, give us the items back.’ ” The agents went to grab defendant. Grimble “got a hold of [defendant.]” Defendant pulled a “big, solid knife” from his pocket and stabbed Nicholson in the arm, leaving him with a six-to-seven-inch scar and numbness and “pins and needles” in his fingers and hand. Security guard Lance Brewer saw the encounter. The two loss prevention agents were talking to defendant. Grimble was behind defendant and Nicholson was circling in front of defendant. Defendant then pulled out of a knife from his pocket. Once Nicholson saw the knife, he “reached for that hand the knife was in.”