P v. Eulian (2nd Dist., Div.5) Calcrim 3472 Correctly States the Law Unless There Is An Escalation to Deadly Force.

Mr. Eulian lived with his mom in his mom's 4-plex.  One Mrs. Stafford was the neighborhood "cat lady".  Stafford fed a clowder of neighborhood ferals in the alley behind Eulian's mom's house.  This unsurprisingly angered Eulian and his mom.  Eulian's mom's yard was a mess of feral cat crap.  Some cats died and decayed in the crawl space under the home.  Finally, Eulian's mother had an old, blind dog, that the stray cats would attack.

The pot came to a boil one night when Stafford was in the alley feeding the strays.  Eulian confronted Stafford.  Profanity gave way to the throwing of kibble and a mutual series of slaps.  Mom entered into the fray, exchanging slaps with Stafford.  The fracas culminated in Eulian pulling Stafford from her car and punching her unconscious.  Following a hung jury, a retrial ended in Eulian being convicted of felony assault and causing great bodily injury.  He appeals.

A Second District panel affirms.

The published portion of the opinion deals with Calcrim instruction number 3472 which states that a person has no right to self defense if he provokes a fight or quarrel with the intent to create an excuse to use force.  Eulian contends this instruction misstates the law.  His argument is based upon a case, P v. Ramirez, where some young gangsters intended to provoke a fistfight with a rival gang.  The rivals responded to this instigation with deadly force, which the instigators met with same.   The Ramirez court stated that Calcrim 3472 does not apply when the instigator intends to instigate a non-deadly fight and the rival responds by sudden escalation to deadly force.

The opinion finds that the facts here do not invoke the Ramirez exception to Calcrim 3472.  Thus the instruction correctly stated the law as it applied to Eulian's situation.  

Two brief comments.  First, I believe there is a typo in the first sentence of the second paragraph on page three.  Stafford was the "cat lady", not Fontaine (Eulian's mother).  Second, the instruction, and the opinion, do not appear to mirror the holding that formed the basis for the instruction.  The holding in P v. Enraca applies when the adversary's attack is legally justified.  The instruction uses the word "provoke" which is not coextensive with legal justification.  You can provoke fisticuffs using taunts and insults, but taunts and insults do not constitute legal justification for the use of force.  Based on this distinction Calcrim 3472 would appear to possibly be over broad.