Ramirez

— A jury convicted Victor Espudo Ramirez, Jr., and his brother Armando Apolinar Ramirez of first degree murder (Pen. Code, § 187, subd. (a); all further statutory references are to this code) and active participation in a criminal street gang (§ 186.22, subd. (a)). The jury found true a gang special-circumstance allegation on the murder count (§ 190.2, subd. (a)(22)), and also found true a gang enhancement (§ 186.22, subd. (b)) and firearm enhancement (§ 12022.53, subds. (d), (e)) on that count.

Defendants contend the trial court erroneously prevented the jury from considering their self-defense claim by instructing the jury categorically that “[a] person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force.” (CALCRIM No. 3472.) The prosecutor argued repeatedly based on the plain terms of this instruction that even if the jury believed defendants sought to provoke only a fistfight, their bare intent “to use force” as stated in the instruction — even nondeadly fisticuffs — meant they forfeited a claim of imperfect self-defense. We hold the instruction misstated the law. A person who contrives to start a…

Dissenting. — I respectfully dissent. The conviction of Armando Apolinar Ramirez (Armando) for the first degree murder of Ruben Rivera *954 should be affirmed. The jury was properly instructed, without objection by any party, on both perfect and imperfect self-defense based on legal principles affirmed by the California Supreme Court in People v. Enraca (2012) 53 Cal.4th 735, 761-762 [ 137 Cal.Rptr.3d 117 , 269 P.3d 543 ] (Enraca) and People v. Hinshaw (1924) 194 Cal. 1, 26 [ 227 P. 156 ] (Hinshaw). The jury thereafter found Armando shot and killed Rivera and was guilty of premeditated murder. There is no dispute substantial evidence supported the jury’s decision. In brief, the majority and I disagree on the answer to the basic question of what is California law on subjects covered by the instructions given in this case.

The majority opinion reverses Armando’s conviction on the ground the trial court erred by instructing the jury with an unmodified version of CALCRIM No. 3472. CALCRIM No. 3472 is entitled “Right to Self-Defense: May Not Be Contrived” and states: “A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an…

Filed 1/28/

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

G049935

Plaintiff and Respondent, (Super. Ct. No. RIF148423) v.

OPINION

VICTOR ESPUDO RAMIREZ, JR., et al.,

Defendants and Appellants.

Appeal from a judgment of the Superior Court of Riverside County, Christian F. Thierbach, Judge. Reversed.

Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant Victor Ramirez. Eric Multhaup, under appointment by the Court of Appeal, for Defendant and Appellant Armando Ramirez, Jr. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted Victor Espudo Ramirez, Jr., and his brother Armando Apolinar Ramirez of first degree murder (Pen. Code, § 187, subd. (a); all further statutory references are to this code) and active participation in a criminal street gang (§ 186.22, subd. (a)). The jury found true a gang special circumstance allegation on the murder count (§ 190.2, subd.…