GGPDE_2020-33_Mutual_Combat_2145902

JACKIE LACEY DISTRICT ATTORNEY LOS ANGELES COUNTY DISTRICT ATTORNEY’S OFFICE ONEMINUTE BRIEF COPYRIGHT © 2020 LOS ANGELES COUNTY DISTRICT ATTORNEY’S OFFICE. ALL RIGHTS RESERVED. MAY BE REPRODUCED FOR NON -COMMERCIA L PROSECUTORIAL, LAW ENFORCEMENT AND EDUCATIONAL PURPOSES ONLY . 1MB@da.lacounty.gov NUMBER : 2020-33 DATE : 10-01-20 BY: Devallis Rutledge TOPIC : “Mutua l Combat ” ISSUE : What is “mutual combat ,” and how does it a ffect a claim of self -defense? In California, fighting is generally unlawful. PC §§ 240, 242, 245 and 415, for example. Sometimes, law enforcement officers, prosecutors and judges may be inclined not to pursue criminal charges where two or m ore people may appear to have engaged in “mutual combat ,” which would preclude either c ombata nt claiming a right of self -defense . But this is n o ground for routinely rejecting arrests or charges , where there are no pro blems of proof. “Voluntary mutual combat outs ide the rules of sport is a breach of the peace ; mutual consent is no justifica tion; and both partic ipants are guilty of crimi nal assault .” People v. Moore (2011) 51 Cal.4th 1104, 1136. ● Howe ver, every victim has a right of reasonable self-defense , whic h may sometimes involve “fighting back ” when attacked. PC § § 692, 693. “California belongs to the majority of jurisdictions with a no-retreat rule , under which the victim of an assault is under no obligation to retreat to the wall before exercising the righ t of self-defense, but is entitled to stand his ground .” People v. Ross (2007) 155 Cal.App.4th 1033, 1044, fn. 13. This means that what may initially appear to be a mutual combat situation in which both combatants are unlawfully fighting with each other m ay in stead be found, on investigation, to be a case of unlawf ul assault by one , provoking lawful self-defense by the other. People v. Myers (1998) 61 Cal.App.4th 328, 335 ( victim of assault and battery has a right of s elf- defense). Writing off such an incident as “mutual combat ” would be an injustice to the victim. The re ported cases suggest that t rue mutual combat is less common than unlawfu l aggression followed by defensive reaction. This information was current as of publication date. It is not intended as legal advice. It is recommended that readers check for subsequent developments, and consult legal advisors to ensure curren cy after publication. Local policies and procedures r egarding application should be observed. LADA ONE -MINUTE BRIEF NO. 20 20-33 PAGE 2 “Like many legal phrases, ‘mutual combat ’ has a dan gerously vivid qualit y. … In ordinary speech , then, ‘mutua l combat ’ might properly describe any violent struggle between two or more people …. “[But] as u sed in this state ’s law of self -defense, ‘mutual combat ’ means not m erely a reciprocal exchan ge of blows but one pursuant to mutual intention, consent, or agreem ent preceding the initiation of hos tilities . … “In other words, it is not merely the combat , but the preexisting intention to en gage in it , that must be mutual . … “[M]utual combat consists of fighting by mutual intenti on or c onsent, as most clearly reflec ted in an express or implied agreement to fight. …[T]here must be evidence from which a jury could reasonably find that both combata nts actually consented or intended to fight before the claimed occasion for self - defen se aros e.” People v. Ross, supra, 155 Cal.App.4th at 1036, 1044 -47. ● Evidence of a n implied pre-existing intent to engage in mutual combat is most likely to be found where warring gangs have an ongoing feud. People v. Nguyen (2015) 61 Cal.4th 1015, 1044. ● A true mutual combat confrontation that results in the death of o ne of the combatants may sometimes , depe nding on the circu mstances, mitigate a murder charge to manslaughter . PC § 197; CALCRIM 505, 3471; People v. Whitfield (1968) 259 Cal.App.2nd 605, 609. BOTTOM LINE : “A fight is mutual combat when it began or continu ed by mut ual consent or agreement . That agreement may be expressly stated or implied and must occur before the claim to self -defense arose. ” CALCRIM 3471. (Bold e mphases added; citations and punctuation omitted from quoted material.)