CALCRIM No. 3472 (contrived self-defense), misstates the law by directing the conclusion that a defendant who provokes a fight intending to use only non-deadly force, has no right of self-defense against an adversary’s deadly attack. Ramirez and his brother were convicted of special circumstance murder, gun use, and participating in a gang, after a confrontation with several rival gang members devolved from a fistfight to use of deadly force. Defendants claimed on appeal the jury was erroneously precluded from considering their self-defense claim because of the instruction on contrived self-defense. Held: Reversed. The jury was given CALCRIM No. 3472 (“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.”). The prosecutor repeatedly relied on this instruction to counter defendants’ claim they only intended to provoke a fistfight, but believed an adversary had pulled a gun, so fired in self-defense. The instruction misstated the law under the circumstances of this case because it made no allowance for a situation where a defendant intends to engage in a fistfight and his adversary suddenly escalates the encounter to a gunfight. To the contrary, cases have long held a person does not forfeit all right of self-defense just because he committed the first wrongful act. Where the court’s failure to properly instruct the jury affects the defendant’s substantial rights, the issue may be raised on appeal without objection having been taken. The erroneous instruction was prejudicial because it foreclosed defendants’ claim of imperfect self-defense and the jury was misled regarding the law of self-defense.

The fact that counsel for one of the defendants requested CALCRIM No. 3472 did not forfeit an appellate challenge to the instruction. Trial counsel requested CALCRIM No. 3472 apparently without realizing it misstated the law relative to his client’s defense. As there could be no tactical reason for requesting an instruction that vitiates a defense, trial counsel provided ineffective assistance to his client. As the jury may have accepted the defendants’ claim, the ineffective assistance was prejudicial and a challenge to the instruction was not forfeited.