People v. Ross
| Citation | 155 Cal.App.4th 1033,66 Cal.Rptr.3d 438 |
| Decision Date | 28 September 2007 |
| Docket Number | No. H030005.,H030005. |
| Court | California Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Leonard John ROSS II, Defendant and Appellant. |
David McNeil Morse under appointment by the Court of Appeal, Los Angeles, for Defendant and Appellant Leonard John Ross II.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Stan Helfman, Supervising Deputy Attorney General, Margo J. Yu, Deputy Attorney General, for Plaintiff and Respondent The People.
Maria Antonia Speiser and defendant Leonard John Ross II engaged in a hostile verbal exchange, at the culmination of which she slapped him. Defendant responded with a blow that fractured her cheekbone. We are called upon to consider whether the participants were engaged in "mutual combat" for purposes of the law of self-defense. Defendant was convicted of aggravated assault and battery after the trial court instructed the jury, over defense objection, that one charged with assault cannot successfully plead self-defense if he was engaged in "mutual combat" with the alleged victim. Further, the court refused the jury's request during deliberations for a legal definition of "mutual combat," telling jurors instead to rely on the ordinary meaning of those words. This left the jury free to suppose that any exchange of blows disqualifies both participants from claiming a right of self-defense. In fact the doctrine applies only to a violent confrontation conducted pursuant to prearrangement, mutual consent, or an express or implied agreement to fight. Since the evidence here was insufficient to establish any such arrangement or agreement, and there was a substantial basis for the jury to find that defendant may have acted in self-defense when he struck the blow on which the verdict was based, we find it reasonably probable that a properly instructed jury would have returned a verdict more favorable to defendant. We therefore reverse the judgment.
On a June morning in 2004, defendant visited his friend Henry Mestaz at the latter's home in a Morgan Hill trailer park. Also living at the trailer, and present that day, were Henry's then-girlfriend Amy Jonathans, whom he later married; Amy's four children, aged two to nine; and Amy's mother, Wendy Sue Burns. Toni Speiser, the alleged victim in this case, visited off and on during the day, as did her then-boyfriend Donny, and his two children.1
Around 3:30 that afternoon, defendant and Henry were sitting at a picnic table under an awning outside the trailer, in a porch or patio area. According to defendant, they had been playing dominos. Toni was sitting on a futon-couch near the table and against the side of the trailer. Amy was standing near a rose bush. As many as three children were present.
Amy was upset because Henry had invited defendant to move into the trailer. Amy felt there was not enough room. Also, she had three daughters in the house and did not like men staying there. Amy let defendant know that she wanted him to leave. According to defendant, however, Henry urged him to remain, and he did so.
Amy then began declaiming upon the undesirability of having strange men around young children. She asked Toni how she felt about it, and Toni concurred, saying that "you never know what's going to happen" when there are lots of men around a house with children. According to defendant, Toni's remarks culminated in the imprecation,
Defendant testified that he now told Toni, "`Hey, you need to watch your language.'" `"There's kids around.'" He professed not to approve of cursing around children, and some support for this assertion appears in Amy's testimony that defendant "very seldom ever cussed." Amy agreed that defendant told Toni to stop cussing and have some respect. She said that there probably was swearing going on, though she did not specifically recall it because she considered it normal.
Toni did not recall saying anything foul, but acknowledged that she might have done so. She testified that before this became an issue, defendant had interjected something into the conversation between the two women, whereupon Amy had "told him to stay out of it, because she wasn't talking to him; she was talking to me." Amy and Toni had then both told defendant to "`Mind your own business' or `Butt out of the conversation' or `We're not talking to you.'" According to Toni, this seemed to anger defendant, who only then started telling her she was cussing and using foul language in front of the children and should shut up.
A heated exchange ensued. According to Toni, defendant "started saying that I was using a lot of profanity and that—to stand up and go behind the trailer, that he was going to kick my ass." She told him to wait until her boyfriend Donny got back. Defendant testified that when he objected to Toni's language, she responded, " Defendant said that he responded in a playful, nonthreatening manner. Toni then said, "`I'll get somebody,' you know, `to kick your ass.'" Defendant said, This was uttered, he testified, not in a literal sense but in a "joking manner" as a way of "clown[ing]" with her.
According to Amy, the argument went back and forth for some minutes.2 Toni was saying that she would "have somebody" take care of defendant or would get someone to "kick [his] ass." Defendant responded to one such remark with the query, "[W]hy don't you do it?" He also said something like, "Let's go out back and take care of business." Amy acknowledged that this might have been said in a "humorous" vein. Toni, however, was not joking. Amy described her as "challenging" defendant in a manner Amy found shocking. The only specific challenge Amy attributed to Toni was that she would have somebody else "take care of defendant.
At some point defendant stood up. He testified that he did so because Henry was talking to him about getting some beer, and he wanted to check his pockets for his wallet. Amy felt that defendant might have been getting up to light a cigarette; in any event "it wasn't to go towards [Toni] or anything like that...." According to defendant and Amy, defendant now said to Toni, "`You sound like an old whore.'"3 According to Toni, defendant called her "a fucking whore." Whatever his exact words, they angered Toni. Upon hearing them, she rose and walked toward defendant with her right hand open, intending to hit him. She believed she had her glasses and cigarettes in her left hand. She did not remember anything after approaching defendant, and could not say whether she hit him hard or soft, with an open hand or a closed one. It was undisputed, however, that she struck him. Defendant described the blow at trial as a "punch," though Officer Ray testified that defendant told him Toni had "slapped" him twice. Amy testified somewhat tentatively that she thought Toni's hand was open. The blow did not seem to her to have been delivered with "a lot of force," but neither was it "light." It was audible.
It appeared to .Amy that defendant was not expecting the blow. He "took a couple steps back," she; thought more from "shock" than from the force of it. Defendant testified that, indeed, the blow took him by surprise. When it landed, he said, his attention was diverted to the child Donald, whom Toni had pushed out of the way. As Toni approached, defendant testified, he He testified that in response to the blow he may have closed his eyes. He lifted his arm and felt a second blow. In doing so, he testified, he believed he was going to be hit again. He believed his first punch either was or may have been part of a right-left combination, so that he "came over with a left," and perhaps a third blow. Toni fell back on the futon. By then Henry had stood from the table. In response to Amy's excited exclamations, he stepped between defendant and Toni, pushing them apart. At Henry's urging, defendant left.
Amy recalled defendant's response as more protracted. She testified that after Toni slapped defendant, he "just started hitting her." His first blow was a punch so hard it "shocked" Amy. He seemed to strike with all his might. Amy thought he hit Toni 10 to 15 times. He might have used both hands. Most of the blows were struck after Toni was "laid down on the futon...." Amy thought the later punches were thrown with force similar to the first. She could not be sure how many of them connected; she could only be sure of the one that caused Toni to fall back on the futon. Toni was screaming, and probably putting her hands up to block.
Throughout this time Amy was yelling at Henry to get defendant "out of here," "get him to stop," and "[g]et him off of her." Amy hit defendant over the head with a cordless telephone, but this appeared not to faze him. Eventually Henry grabbed defendant by the waist and pulled him off Toni. As he did so defendant was pulling Toni's hair. Defendant left, perhaps after standing around talking for a minute. Toni, still screaming, ran into the kitchen to get something to put on her...
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