Filed 8/26/26 P. v. Barney CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B342175
Plaintiff and Respondent, (Los Angeles County Super.
Ct. No. TA155861)
v.
LARRY BARNEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, John Lonergan, Jr., Judge. Affirmed.
Monique Hemli-Munoz, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill, and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
______________________
Larry Barney appeals from the judgment of conviction after a jury found him guilty of assault with a firearm. Barney contends the trial court prejudicially erred in giving an instruction to the jury on the mutual combat and initial aggressor limitations to the defense of self-defense without sufficient evidence to warrant the instruction. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Charges The People charged Barney with one count of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and alleged that, in committing the offense, he personally inflicted great bodily injury (id., § 12022.7, subd. (a)) and personally used a firearm (id., § 12022.5, subd. (a)).
B. The Prosecution Evidence In October 2021 Barney was living at the home of his girlfriend, Novella Allen, and her 18- and 16-year-old daughters. The older daughter’s boyfriend, Fernando Chavez, also stayed in the home sometimes. At the time, Barney and Allen’s relationship was “on the rocks.” Barney had recently pushed and choked Allen, an incident Allen’s older daughter witnessed and reported to Chavez. Thereafter, Barney and Allen did not sleep in the same room, but Allen allowed Barney to sleep in the home “to keep the peace.”
Barney became upset one morning that Allen was taking too long to come home when he wanted to use her car. When Allen returned, he grabbed her car keys from a lanyard around her neck and left in her car despite her protests. Allen reported the car as stolen. The police arrived and told her she could seek a
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restraining order but that there was nothing they could do because it was a “civil matter.”
A few minutes after the police left, Barney returned and was upset Allen had called the police on him. Barney again snatched Allen’s keys from around her neck and left in her car without her permission. Allen used a baseball bat to smash a window on Barney’s car that was in her driveway but had flat tires. She called the police but was again told they could not assist her.
Allen and her daughters started putting Barney’s belongings on the curb. When Barney returned and saw his belongings outside and the broken car window, he began arguing with Allen. Allen told her daughters to go inside the house and lock the door. Barney offered to leave if he could go inside and retrieve the rest of his belongings. Allen agreed.
Barney struggled to open the front door. Chavez, who was inside the house, heard Barney and Allen’s argument and banging on metal bars outside a bedroom window, which led him to assume the argument had gotten physical. Chavez saw Allen’s daughters holding the front door closed from inside the house. He also heard banging on the door and Barney saying he wanted to be let in.
Chavez opened the door to confront Barney. He pushed Barney in the chest hard enough to make Barney move back and told him “we don’t want you here.” Barney responded by punching Chavez in the eye. The two men exchanged punches for 30 to 40 seconds before Chavez pinned Barney against the outside of the house. Chavez testified he was taller and heavier than Barney but not stronger. He stated that, before this point,
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there was bad blood between them and they exchanged threats, but things had never become physical.
While Chavez had Barney pinned for a “minute or so,” he told Barney to stop and that he did not want to fight him. He further told Barney he needed to leave. Barney spat in Chavez’s face and called him a “bitch,” which made Chavez angry. The fighting restarted, with both men throwing punches, and moved into the living room, with Allen and her daughters present. Allen eventually broke up the fight and told everyone but Barney to go outside so he could retrieve his belongings.
Barney was bleeding heavily from his forehead and went into the bedroom he had been staying in. Everyone went outside except for Chavez, who followed Barney because he was worried Barney was going to trash the house or mess with Chavez’s bicycles that were inside. As Chavez followed Barney, he was telling Barney it was time for him to leave and to get out, and that no one liked him or wanted him there. When Barney entered the bedroom, Chavez stopped in the doorway. Chavez saw Barney reach for an object he believed to be a gun. As Barney started to raise the object so it was pointing at Chavez, Chavez tried to hit Barney’s hand. Chavez “heard a loud pop,” “felt a light breeze in between [his] sweats,” and “smelled something burning.” At the time, Chavez did not know if he had been shot and went to the bathroom to hide. Barney looked inside the bathroom, but not seeing Chavez, he walked toward the living room.
Allen heard the gunshot and entered the house. She saw Barney walking around holding a gun at his side. She believed he was looking for Chavez.
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After he heard Allen enter the house, Chavez left the bathroom and hit Barney from behind in the back and neck attempting to disarm him. The two men fought for the gun, which went off again. Allen saw this second shot hit Chavez in the thigh. Chavez, Allen, and Barney continued to struggle for the gun in Barney’s hand. During the struggle, two or three more shots were fired.
Allen and Chavez eventually restrained Barney and brought him to the floor. Allen got on top of Barney and told Chavez to go outside. After exiting the house, Chavez realized he had been shot in his groin. Shortly after Allen went outside to assist Chavez, Barney exited the house, ran to his bicycle, and pedaled away from the scene. Barney did not appear to have been shot or to be in pain.
C. The Defense Evidence Barney testified at trial. On the day of the incident, he was struggling to open the front door of Allen’s house to get his belongings and leave after Allen demanded he do so. The door flew open, and Chavez immediately punched him four times in the face. Due to Chavez being so close to him, Barney was only able to land “little baby punches” on Chavez. Barney was also being punched and hit with a “giant mallet” by Allen’s daughters. Chavez put Barney into a chokehold, and the ensuing struggle moved everyone into the living room. Allen then told everyone to go outside so Barney could get his belongings.
Chavez followed Barney into the bedroom, telling him to leave and calling him names. Barney saw Chavez holding a gun and reached for it. The gun went off, and Barney felt a “lightning bolt” go through his foot and knew he had been shot. The shot hit his foot near his ankle.
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Barney struggled with Chavez for control of the gun.
Barney fired the gun while trying to wrestle it from Chavez. “The second shot somehow I got my finger on the trigger and I just ... I knew it wasn’t pointing at me so I shot.” At that point, Barney gained control of the gun, and Chavez exited the house, appearing injured. Barney gathered his belongings, threw the gun in the kitchen trash, and left the area on his bicycle.
A photograph purporting to depict the wound to Barney’s ankle was admitted into evidence. Barney did not go to the hospital because the wound was not bleeding and it did not hurt; “it just tingled.”
D. Applicable Jury Instructions, Closing Arguments, and the Jury’s Question The trial court instructed the jury with CALCRIM No. 3470 on the right to self-defense. The court thus instructed the jury that Barney acted in lawful self-defense if he reasonably believed that he was in imminent danger of suffering bodily injury, reasonably believed that the immediate use of force was necessary to defend against that danger, and used no more force than was reasonably necessary to defend against that danger.
The court, over Barney’s objection, also granted the People’s request to instruct the jury with CALCRIM No. 3471 (“Right to Self-Defense; Mutual Combat or Initial Aggressor”). That instruction provides: “A person who engages in mutual combat or who starts a fight has a right to self-defense only if: [¶] 1. He actually and in good faith tries to stop fighting; [¶] 2. He indicates, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wants to stop fighting and that he has stopped fighting; [¶] AND [¶] 3. He gives his opponent a chance to stop fighting. [¶] If a person meets these
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requirements, he then had a right to self-defense if the opponent continued to fight. [¶] However, if the defendant used only nondeadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting, communicate the desire to stop to the opponent, or give the opponent a chance to stop fighting. [¶] A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose.” The court determined the instruction should be given because it was “within the realm of the evidence that it can be argued whether or not Mr. Barney actually started the fight” or that there was mutual combat.
The trial court further instructed the jury with CALCRIM No. 200 that “[s]ome of these instructions may not apply depending on your findings about the facts of the case” and that the jury should first decide what the facts were and then “follow the instructions that do apply to the facts as you find them.”
During their closing arguments, both sides focused on whether Barney acted in self-defense. The prosecution argued Barney did not act in lawful self-defense because the fistfight between him and Chavez had ended by the time Barney went inside the house to retrieve his belongings; further, Barney used more force that was reasonably necessary to defend himself against Chavez’s punches when he retrieved the gun and shot at Chavez. The defense theory was that Chavez was the one who retrieved the gun and the one who shot Barney first, justifying Barney in defending himself with deadly force.
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During its deliberations the jury requested and was provided the testimony of both Barney and Chavez regarding the “beginning/start of the altercation involving the firearm.”
E. Verdict and Sentence The jury found Barney guilty of assault with a firearm and found true the great bodily injury and firearm allegations. In a bifurcated court trial, the court found true several aggravating factors (Cal. Rules of Court, rule 4.421(a)(1), (a)(2), (b)(1), (b)(2), (b)(3)). The court sentenced Barney to 17 years based on the upper term of four years, plus 10 years (the upper term) for the firearm enhancement and three years for the great bodily injury enhancement.
Barney timely appealed.
DISCUSSION
Barney argues the trial court prejudicially erred by instructing the jury with CALCRIM No. 3471, which describes limitations to the defense of self-defense where the defendant was the initial aggressor or there was mutual combat between the defendant and the victim. Barney contends no evidence suggested he was the initial aggressor, given Chavez initiated the first physical confrontation, and there was no express or implied agreement to engage in mutual combat with Chavez.
“ ‘It is error to give an instruction [that], while correctly stating a principle of law, has no application to the facts of the case.’ ” (People v. Debose (2014) 59 Cal.4th 177, 205.) “ ‘A trial court must give a requested instruction only if it is supported by substantial evidence, that is, evidence sufficient to deserve jury consideration.’ ” (People v. Leon (2020) 8 Cal.5th 831, 848.) We
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review the trial court’s decision to give a particular instruction de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1206.)
In this context, “mutual combat” is not merely a reciprocal exchange of blows but rather a fight that is “ ‘ “begun or continued by mutual consent or agreement, express or implied.” ’ ” (People v. Nguyen (2015) 61 Cal.4th 1015, 1050, italics omitted (Nguyen); accord, People v. Ross (2007) 155 Cal.App.4th 1033, 1045 (Ross).) “In other words, it is not merely the combat, but the preexisting intention to engage in it, that must be mutual.” (Nguyen, at p. 1050.) “[T]his common intention or desire must precede the first assaultive conduct, or at least the first conduct sufficient to trigger a right of self- defense in its target. If A triggers such a right in B by striking him, B does not forfeit that right merely because the blow makes him ‘want to fight.’ Hot blood may cause him to exercise the right unreasonably, and to that extent he will forfeit it. But his ‘want[ing] to fight’ does not make it a case of mutual combat.” (Ross, at p. 1045, fn. 14.) An agreement to fight does not need all the characteristics of a legally binding contract, “[b]ut there must be evidence from which the jury could reasonably find that both combatants actually consented or intended to fight before the claimed occasion for self-defense arose.” (Id. at p. 1047.)
“Generally, if one makes a felonious assault upon another, or has created appearances justifying the other to launch a deadly counterattack in self-defense, the original assailant cannot slay his adversary in self-defense unless he has first, in good faith, declined further combat, and has fairly notified him that he has abandoned the affray. [Citation.] However, when the victim of simple assault responds in a sudden and deadly counterassault the original aggressor need not attempt to
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withdraw and may use reasonably necessary force in self- defense.” (People v. Gleghorn (1987) 193 Cal.App.3d 196, 201; see People v. Trevino (1988) 200 Cal.App.3d 874, 879.)
Even assuming without deciding the trial court erred by instructing the jury with CALCRIM No. 3471 because there was insufficient evidence that Barney and Chavez engaged in mutual combat or that Barney was the initial aggressor, the error was harmless. When a court gives an instruction that correctly states the law but has no application to the facts of the case, reversal is required only if it is reasonably probable the result would have been more favorable to the defendant absent the error. (People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130 (Guiton); see People v. Watson (1956) 46 Cal.2d 818, 836; see also People v. Cross (2008) 45 Cal.4th 58, 67 [“giving an irrelevant or inapplicable instruction is generally ‘ “only a technical error which does not constitute ground for reversal” ’ ”].)
The trial court fully instructed the jury on the right to self-
defense with CALCRIM No. 3470, and nothing in the mutual combat/initial aggressor instruction prevented the jury from evaluating the evidence of Barney’s self-defense claim pursuant to the self-defense instruction. As noted, the trial court also instructed the jury that “[s]ome of these instructions may not apply, depending on your findings about the facts of the case” and that the jury should first decide what the facts were and then “follow the instructions that do apply to the facts as you find them.” We presume the jury followed these instructions and ignored any inapplicable instructions. (See People v. Holloway (2004) 33 Cal.4th 96, 152-153; see also Guiton, supra, 4 Cal.4th at p. 1131 [“The jurors’ ‘own intelligence and expertise will save them from’ the error of giving them ‘the option of relying upon a
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factually inadequate theory.’ ”].) Accordingly, if the jury found no facts supporting a theory that Barney and Chavez had mutually consented, intended, or agreed to engage in combat, or that Barney was the initial aggressor, we presume the jury would have simply disregarded CALCRIM No. 3471.
Barney’s reliance on Ross, supra, 155 Cal.App.4th 1033 is unavailing. The defendant in Ross got into an argument with a woman who eventually slapped him, and the “[d]efendant responded with a blow that fractured her cheekbone.” (Id. at p. 1036.) At that time, the pattern jury instruction did not define the term “mutual combat.” (Id. at p. 1042, fn. 9.) When the deliberating jury requested the term’s legal definition, the trial court informed the jurors there was none and instructed them to rely on the “common, everyday meaning of those words or that phrase.” (Id. at pp. 1042-1043.)
The appellate court reversed for instructional error, concluding that, without being given a definition of “mutual combat,” the jury could have inaccurately determined the term in this context “describe[d] any violent struggle between two or more people, however it came into being.” (Ross, supra, 155 Cal.App.4th at p. 1044.) The court determined “the evidence showed an exchange of belligerent comments culminating in an impulsive and unexpected blow by [the woman] to which defendant responded with a combination, flurry, or barrage of blows. There is simply not enough evidence for a reasonable juror to conclude beyond a reasonable doubt that when these blows were exchanged, both parties had formed the intent to engage in a fight.” (Id. at p. 1052.) As for prejudice, the court explained, “[a] properly instructed jury would not find ‘mutual combat’ on the present facts, and would therefore presumably
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ignore the instruction. But the jury here was not properly instructed. It was left to suppose that the instruction might apply to any exchange of blows. Moreover the record affirmatively shows that jurors did not ignore the instruction. They petitioned the court in vain to clarify it.” (Id. at pp. 1056- 1058.)
Barney argues that, just as the jury in Ross demonstrated it was focused on the mutual combat instruction because it asked the court for a definition, here there is evidence the jury focused on the mutual combat instruction because it asked to rehear testimony regarding the beginning of the incident involving the firearm. While “the questions the jurors ask and the areas in which they focus their deliberations can be revealing” (People v. Carrillo (2004) 119 Cal.App.4th 94, 104), the jury’s request here does not necessarily show the focus on mutual combat that Barney suggests. The jury needed to consider the events during that time period to assess his self-defense theory. Moreover, neither party ever referenced the notion there was mutual combat or that Barney was the initial aggressor during the trial or in their closing arguments. (Cf. Guiton, supra, 4 Cal.4th at p. 1129 [suggesting prejudice might be found where invalid factual theory was presented to jury and “the district attorney stressed only the invalid ground in the jury argument, and the jury asked the court questions during deliberations directed solely to the invalid ground”].)
Further, unlike in Ross, the trial court accurately instructed the jury on the legal meaning of the term “mutual combat.” Thus, if the jury determined there was no evidence to support a mutual combat finding, we presume the jurors followed the court’s direction to simply ignore that portion of its
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instructions. (See People v. Holloway, supra, 33 Cal.4th at p. 152 [“we cannot assume … that the jurors failed to follow the court’s standard admonition … that they were to disregard any instruction inapplicable to the facts as they found them”]; see also People v. Forrest (2017) 7 Cal.App.5th 1074, 1083 [“In the absence of any evidence of confusion on the part of the jury, ‘[j]urors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions.’ ”], italics added.)
In sum, even if there was instructional error, reversal is not necessary because it is not reasonably probable the result would have been more favorable to Barney absent the error. (Guiton, supra, 4 Cal.4th at p. 1130.)
DISPOSITION
The judgment is affirmed.
STONE, J.
We concur:
MARTINEZ, P. J.
FEUER, J.