People v. Harper CA4/3

Filed 7/29/22 P. v. Harper CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G059843

v. (Super. Ct. No. 19NF0897)

DAVID LEE HARPER, JR., OPI NION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Jeannie M. Joseph, Judge. Affirmed with modifications. Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Seth Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

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David Lee Harper, Jr., appeals from a 28-years-to-life sentence following his convictions for battery and assault with force likely to cause great bodily injury. He contends his convictions must be reversed because the trial court improperly instructed the jury with CALCRIM Nos. 3471 and 3472, which address limitations of the right to self-defense. As discussed below, we conclude there was substantial evidence to support the giving of those instructions. Harper also contends the sentencing minute order and abstract of judgment do not conform with the oral pronouncement of judgment, and we conclude remand for resentencing is appropriate. The judgment is affirmed in all other respects. I FACTUAL AND PROCEDURAL BACKGROUND A. Harper’s Assault of the Victim At trial, K.S. testified that on the evening of January 23, 2019, she and her fiancée, John H., walked to a liquor store near their apartment. Inside the store, they encountered Harper and his companion. Harper asked K.S., “[d]o you want to make some cash?” She responded by telling Harper to speak with her fiancée John. Subsequently, Harper and John had a heated verbal altercation, which concluded with John telling Harper, “Let’s go outside.” Everyone walked outside and K.S. thought the two men were going to fight. Fortunately, the store’s clerk walked outside and defused the situation. Harper and his companion then left in a white Jaguar, while K.S. and John began walking home. K.S. saw the white Jaguar pass them on the other side of the street before making a U-turn. John told K.S., “They are going to come back and they are going to get out of the car right now. They are going to jump me.” As the Jaguar approached them, it slowed down and Harper’s companion jumped out from the passenger side. John walked towards the Jaguar, and began fighting with Harper’s companion. Harper exited the driver’s side of the Jaguar, and while John was focused on