[No. H030005. Sixth Dist. Sep. 28, 2007.]
THE PEOPLE, Plaintiff and Respondent, v. LEONARD JOHN ROSS II, Defendant and Appellant.
Superior Court of Santa Clara County, No. FF406975, Hugh F. Mullin, III, Judge.)
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.