People v. Lock CA2/7

Filed 11/9/26 P. v. Lock CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN THE PEOPLE, B340755 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA498868) v. MARIO LOCK, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, Deborah S. Brazil, Judge. Affirmed. Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael C. Keller and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent. _______________________________  Mario Lock appeals from a judgment of conviction entered after a jury found him guilty of the second degree murder of Terion Reece, the boyfriend of Lock’s ex-girlfriend, and first degree residential burglary. The jury also found true the allegation Lock used a firearm in the commission of the murder. Lock contends the trial court erred in failing to instruct the jury with respect to his murder conviction that a person who is an initial aggressor or mutual combatant, or who provokes a fight, has a right to self-defense if his opponent uses deadly force, preventing the person’s withdrawal. Lock also contends substantial evidence did not support his burglary conviction and the court erred in instructing the jury and in denying his motion for acquittal, because Lock had an unconditional possessory right to enter the property (where he previously lived with his ex- girlfriend). Finally, Lock asserts the court violated his constitutional right to a jury determination on the alleged aggravating factors by failing sua sponte to instruct the jury with CALCRIM Nos. 3224 and 3225 on the elements of the aggravating factors. We affirm. FACTUAL AND PROCEDURAL BACKGROUND A. The Prosecution’s Case 1. Diamond Sanders’s testimony Diamond Sanders was in a relationship with Lock between 2018 and 2021, and they have a son together, Amari. In October 2020, when Sanders was pregnant with Amari, they moved together into an apartment on West 40th Place in Los Angeles. Both their names were on the lease agreement. 2  In August 2021 Sanders asked Lock to move out of the apartment after he admitted to cheating on her. Lock agreed and stopped spending nights at the apartment; however, he left most of his belongings there and continued to come and go as he pleased. Later that month, Sanders changed the locks on the apartment to keep Lock out because he was drinking a lot, and on multiple occasions he became irate and broke things. By the time Sanders changed the locks, Lock had removed most of his belongings except for some clothes and shoes. During the time they lived together, Lock kept a handgun in a lockbox; by the end of the month, the lockbox was no longer there. After Lock moved out of the apartment, he and Sanders stopped speaking on the phone and communicated primarily through text messages using their social media accounts. Amari continued to live with Sanders at the apartment but also spent time with Lock’s mother, who lived a few blocks away. As of early September 2021, Lock was still paying a large share of the rent. After the relationship ended, Sanders began dating Reece, a former high school boyfriend. On September 3, 2021 Lock showed up unexpectedly at the apartment door with three male companions. Sanders’s family was visiting her at the time. Lock smelled of alcohol and acted “obviously drunk.” Sanders let Lock into the apartment, but it became clear he was “looking for confrontation,” and he started yelling at Sanders and her family. He accused Sanders of sleeping with Reece while Amari was in the bed. He broke the television, slapped and hit Sanders’s uncle, and threatened her sister. The sister pepper-sprayed Lock and called the police. Lock went outside, and the situation was defused by the time the 3 police arrived. However, Lock inadvertently left his phone in the apartment during the melee. Over the next several days, Lock and Sanders exchanged numerous social media messages, which were admitted at trial. Lock expressed hostility toward Reece in several messages. On September 9 he wrote to Sanders, “I’m only mad at one thing” and “I care about literally nothing else”—that Sanders brought “Captain Avon” “in my house.” “Captain Avon” referred to Reece and was a negative allusion to Reece’s membership in the Avalon street gang. On September 10 Lock wrote to Sanders, “U have a whole ass nigga and left me homeless why can’t u just give me my phone.” During the same period, using a different social media account, Lock wrote, “One shot one kill” and “I’m letting u know. The nigga that was at my house not Fina live much longer.” He continued, “It’s sad you don’t know how fR I’ll take it[.] Make sure my baby at my momma house when it happens.” He added, “You have until Friday to give me his address” and “Tell him good luck.” Sanders did not take Lock’s threats seriously because Lock was drinking a lot at the time. On the morning of September 12, Reece borrowed Sanders’s car while Sanders walked to Lock’s mother’s house to pick up Amari. When Sanders got back to the apartment with Amari, Reece told Sanders that a car had chased him and struck her car, tearing off the bumper. After that incident, Reece remained in the apartment with Sanders and Amari. At some point Lock sent Sanders a message about picking up his phone. He asked, “Is there someone over there with my son?” He added, “[I]f dude in there I’m finna evict him.” 4  That afternoon Lock came to the apartment to get his phone, and he spoke with Sanders through the front door screen. When she refused to let Lock inside to see Amari or to give him his phone, Lock threatened to call the police. But Sanders admitted in cross-examination that Lock was otherwise polite and he left her tablet computer at the door before walking away. Even so, Sanders felt cautious after the September 3 incident and decided to leave the apartment through the back door and place Lock’s phone outside so she would not have to meet him. When Sanders went out the back door, a man she did not recognize, later identified as Lock’s cousin Joshua Tobin, shouted to Lock that Sanders was in the back of the building. Lock ran around the building and approached Sanders. She held Amari in one hand and reached into her pocket with the other hand to get Lock’s phone, but instead of taking the phone, Lock tried to pull Sanders’s keychain out of her pocket. She fell to the ground during the struggle, and Lock grabbed the keys. Lock repeatedly shouted at the rear-facing apartment window that “Avon” was a “bitch” and should come outside. Lock tossed Sanders’s keys to Tobin, and the two men ran in the direction of the front door of the apartment. Sanders heard Lock tell Tobin to “get the gun,” and Tobin ran up to the passenger side of a vehicle parked on the street before running back toward the apartment. Sanders, concerned for Reece, shouted at the window for him to leave through the back door. Sanders then ran with Amari into the parking lot, got into her car, and called the police. Sanders later saw Lock and Tobin outside the apartment heading toward their car; neither appeared to be bleeding or show any signs of injury. Believing they had driven off, Sanders 5 approached the front of the apartment and saw that Reece was lying on the floor inside, face-down, and he was not moving. She observed that Lock was still in the area, and she went back to her car to wait for the police. 2. The investigation and crime scene evidence Los Angeles Police Officer Jose Solorzano arrived at the scene around 4:00 p.m. on September 12. When Officer Solorzano arrived, Lock and others were standing around a car that was double-parked in the street. Lock walked up to Officer Solorzano and said, “Sir, I just got here. I got home. He came up to me. Tried to take my gun with both of his hands. Put it on my head, and I shot.” Officer Solorzano went inside the apartment and found Reece lying on the floor and nonresponsive. Paramedics were unable to revive Reece, and he was pronounced dead at the scene. Los Angeles Police Detective John Meneses testified about the investigation, and photographs of the crime scene were admitted at trial. When Detective Meneses arrived at the apartment, Reece’s body lay in the hallway of the apartment near the kitchen area and back door. Reece had a bullet wound on his left chest and another bullet wound on his upper back, and he had cuts and scrapes on his arm and hand. There was blood splatter in the kitchen, including on the floor, a trash can, and the refrigerator. A spent nine-millimeter cartridge casing was found in the hall leading into the kitchen area. Investigators found another nine-millimeter spent casing and a live round of the same caliber in the hallway outside of Sanders’s bedroom, and a bullet hole through the bedroom door. There was blood on the wall outside of the bedroom door and in 6 the hallway. The lower part of the exterior side of the bedroom door was scuffed, the door frame was cracked, and the metal jamb had detached from the frame and was found inside the bedroom. The damage to the door appeared to be fresh. Inside the bedroom, a window overlooking an alleyway had been broken; there was glass on the windowsill and floor, and the window blinds had blood on them. Police criminalist and firearms analyst Matthew Saucedo testified that he analyzed the damage to the bedroom door, and based on the relative size and placement of the holes on each side of the door, he determined the bullet that pierced the door had been fired at a downward angle from outside the bedroom into the room. During a search of Lock and Tobin’s car parked at the scene, police found a Springfield XD nine-millimeter semiautomatic handgun registered to Lock on the front seat of the vehicle.1 There was a live round in the gun’s chamber, and officers found a magazine with live rounds in the car. The gun was functional. The Springfield XD was notable for having two safeties: a trigger safety common to similar semiautomatic handguns and a grip safety. According to Detective Meneses, the double safeties meant the Springfield XD could not discharge unless the operator both held the gun from behind the grip and properly placed his finger on the trigger. Police criminalist Angela Bittbauer conducted DNA analyses of samples obtained from the blood stains in the kitchen, bedroom door, and window blinds. Reece was a contributor to each of the blood stains, and Lock and Tobin were excluded as 1 Lock does not challenge the legality of the search. 7 contributors. Detective Meneses swabbed the Springfield XD gun for DNA, and Bittbauer’s analysis showed Tobin was a contributor to DNA found on the rear slide of the gun, while Lock and Reece were excluded; other parts of the gun lacked sufficient DNA for testing, or the tests were inconclusive. An autopsy of Reece’s body confirmed he had suffered two gunshot wounds; according to the medical examiner, the chest wound was “rapidly fatal,” while the wound to his back was limited to soft tissue in the shoulder, and Reece would have been able to move after sustaining that injury. Two projectiles were recovered from Reece’s body. The medical examiner opined that the bullet that caused the fatal wound traveled front-to-back from the left side of the chest downward and to the right, through Reece’s heart, coronary artery, lung, and liver. Soot was found around the chest entry wound, a hallmark of very close-range firing, indicating that the gun was likely fired within a few inches of Reece’s body. 3. Lock’s police interview Detective Meneses and a partner interviewed Lock after he was taken into custody. The videotaped interview was played for the jury. Lock told the detectives he did not know what to expect when he went to the apartment on September 12, but he brought his gun because he was concerned about his son being in the house with an Avalon gang member who knew Lock’s mother’s address and had access to Lock’s phone and personal information. Lock called ahead, and after he arrived at the apartment, Sanders came out the back door with Amari, leaving the door open. Lock heard noises inside the apartment and entered to 8 investigate. Reece was in the bedroom, peering through the partially open door. Lock ordered Reece to leave, and the two men began to wrestle. Reece then lunged for Lock’s gun, which Lock had set down on the dresser or television stand. Reece grabbed the gun barrel with both hands while Lock held the trigger. As they fought over the gun, it discharged prematurely. Lock stated, “for sure only one shot was fired by me.” Lock believed the bullet hit Reece in the abdomen, and Lock immediately called the police and waited outside for the police and paramedics to arrive. He initially said he fired the shot inside the bedroom but then stated he was in the kitchen area. Lock explained that in the heat of the moment he threw the gun on the floor and believed Tobin had picked it up and disarmed it. Later during the interview, Detective Meneses admonished Lock it was critical not to omit or mischaracterize any details if Lock truly was defending himself. Lock said the “only thing I left out” was that Reece locked himself in the bedroom after spotting Lock, and Lock kicked down the bedroom door and entered without his gun, at which point they fought. Lock also admitted he had grabbed Sanders’s keys from her pocket and used them to go through the back door. He later stated it must have been the front door because he left his gun on the television table in the living room before encountering Reece in the bedroom. After one of the detectives told Lock that this version of events was inconsistent with evidence at the crime scene, Lock explained that he in fact brought the gun into the bedroom after kicking down the door, and the gun discharged upwards as he and Reece struggled. They continued to fight over the gun in the kitchen. The detective then told Lock that a criminalist was 9 already analyzing the trajectory of the ballistic evidence, and Lock changed his statement again to say he fired the gun from the hallway into the bedroom through the closed door. Lock stated he thought Reece was at the far side of the bedroom and aimed the gun upward because he was trying to scare Reece and did not want to hurt him. After Lock kicked down the door, Reece ran out of the bedroom and into the kitchen, where he tried to climb out of the kitchen window. However, Reece was unable to escape, and he turned back toward Lock and tried to grab the gun in Lock’s hand, leading to the fatal struggle. After the prosecution rested, Lock’s attorney moved under section 1118.1 for a judgment of acquittal for the first-degree burglary charge. The trial court denied the motion. B. The Defense Case Lock testified as the only defense witness. Lock worked as a licensed security guard and owned a handgun he believed he was authorized to carry. He and Sanders both signed the lease agreement for the apartment, and he had not removed his name from the lease, which was set to terminate in October 2021. Lock and Sanders broke up at the beginning of September 2021, and as of September 3, many of Lock’s belongings, including his shoes, clothes, gaming console, and two guns were still in the apartment. Lock never authorized Sanders to change the locks, and he did not know that she had done so prior to the day of the shooting. With respect to the September 3 incident, Lock testified it was Sanders and her family who physically attacked him, and he was only trying to make sure Amari was safe. The day after that incident, Lock learned that someone posted “AA’s most wanted” 10 next to a photograph of his identification card (bearing his mother’s address) on his social media account. He understood AA to refer to the Avalon gang. Two cars also pulled up outside his mother’s house and rolled down their windows, leading him to believe the Avalon gang was hunting him down. Lock “fled” to Nevada the following day but was forced to return to Los Angeles a few days later because he could not access his bank account or any personal information. Lock tried to get his phone back from Sanders on September 10, but she refused because he would not agree to sleep with her. On the morning of September 12, Lock and Sanders agreed to meet and exchange his phone for her tablet. Around 3:30 p.m., after he got off work, Lock called Sanders to let her know he was coming for the exchange. When he arrived at the apartment, Sanders initially spoke to him through the front door screen, but she came outside briefly to grab the tablet. She did not give Lock his phone before going back inside, and he tried unsuccessfully to use his key to open the door. He told Sanders he was going to call the police, and he did, but he was afraid to wait outside the apartment for the police to arrive because he thought Sanders might have called someone who would drive up and shoot him in the back. He did not hear anything inside the apartment. When Sanders subsequently left through the back door with Amari, Lock grabbed her keys from her back pocket, although he did not push her to the ground. He then entered the apartment through the front door. Upon entering, Lock and Reece saw each other, and Reece told Lock to “squabble up,” meaning Reece challenged Lock to a fight. But after noticing Lock’s gun on the television stand, Reece ran into the bedroom. Lock fired a “warning shot” through the bedroom door because he 11 thought Reece might be getting a gun from inside the bedroom, although Lock never saw Reece with a gun. After firing the warning shot, Lock “kicked the door open.” Reece ran out, down the hallway, and toward the kitchen and back door. Reece tried, but was unable to jump out of the rear window, so he ran back toward Lock, who was still in the hallway, and he tried to grab the gun out of Lock’s hand. Reece grabbed both the barrel and the butt of the gun at once, and the men struggled for about 10 seconds. The gun then discharged four or five inches from Reece’s body. Lock testified he “didn’t pull the trigger, per se,” and he certainly would have known if he had. Lock and Tobin drove off after the shooting but quickly returned to wait for the police. During cross-examination, Lock admitted he asked Tobin to get his gun before they entered the apartment. Lock was not holding the gun when he first entered; rather, it was in the holster on his duty belt from work that he was wearing. Moreover, Lock had already set the gun down in the living room before Reece first emerged from the bedroom and challenged Lock to fight. After Reece ran back into the bedroom, both Lock and Tobin stayed in the apartment, and Lock decided to pick up the gun and run down the hallway toward the bedroom. Lock admitted he could not see into the bedroom, and therefore he did not know if anyone besides Reece was inside before firing through the door. Lock acknowledged that he and Tobin did not leave the apartment at this point, and he decided instead to kick down the door. When Reece subsequently ran past him into kitchen, and then back toward him, Lock held his gun by the grip the entire time, although the muzzle of the gun was facing toward the 12 ground. Lock admitted he did not see a gun or a knife in Reece’s hand when Reece ran back in Lock’s direction. C. Jury Verdict and Sentencing The jury found Lock guilty of second degree murder (Pen. Code, § 187, subd. (a); count 1)2 and first degree residential burglary (§ 459; count 2). The jury also found true the allegation Lock personally used a firearm in the commission of the murder (§ 12022.5, subd. (a)). In a bifurcated proceeding, the jury found true as to count 1 the aggravating factors that the murder involved acts disclosing a high degree of cruelty, viciousness, and callousness (Cal. Rules of Court, rule 4.421(a)(1)) and that Lock was armed with and used a weapon at the time of the offense (rule 4.421(a)(2)). The trial court sentenced Lock on count 1 to 15 years to life for the murder plus the upper term of 10 years on the firearm enhancement, and on count 2 to the middle term of four years, for an aggregate sentence of 15 years to life plus 14 years. Lock timely appealed. DISCUSSION A. The Trial Court Did Not Err in Instructing the Jury on Self- defense Without Instructing on Sudden Escalation 1. Trial court proceedings At a hearing on jury instructions during trial, the trial court stated to counsel that it intended to instruct the jury with CALCRIM No. 3471 (“Right to Self-Defense: Mutual Combat or 2 Further statutory references are to the Penal Code. 13 Initial Aggressor”), which is the pattern instruction for self- defense where the defendant started a fight or engaged in mutual combat. The court asked counsel to address the bracketed language for the third element of the instruction. CALCRIM No. 3471 states: “A person who (engages in mutual combat/ [or who] starts a fight) has a right to self-defense only if: [¶] 1. [He] actually and in good faith tried to stop fighting[;] 2. [He] indicated, by word or by conduct, to [his] opponent, in a way that a reasonable person would understand, that [he] wanted to stop fighting and that [he] had stopped fighting];] [ [AND] 3. [He] gave [his] opponent a chance to stop fighting.] [¶] If the defendant meets these requirements [he] had the right to self-defense if the opponent continued to fight.” The bench notes for CALCRIM No. 3471 state, “Give bracketed element 3 if the person claiming self-defense was engaged in mutual combat.” CACLRIM No. 3471 also includes the following bracketed language on an opponent’s sudden escalation: “[I]f the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend [himself] with deadly force and was not required to try to stop fighting[,] communicate the desire to stop to the opponent[, or give the opponent a chance to stop fighting.]”3 Lock’s attorney argued the trial court should include the bracketed language for the third element on mutual combat “out of abundance of caution.” The prosecutor argued against 3 For convenience, we adopt Lock’s term for this bracketed language as the “sudden escalation” instruction. 14 including the language on the basis there was no evidence of “a[n] opportunity where the combat stopped going from the testimony as far as when [Lock] said they were ‘tussling over the gun.’” The trial court found, “I don’t see this as mutual combat. There’s a struggle over the weapon, yes, but the way the mutual combat is described in this instruction . . . does not track with a struggle over a weapon.”4 Following the close of testimony, the court instructed the jury with the first two elements of CALCRIM No. 3471, without the bracketed language for the third element of mutual combat or the language on sudden escalation. The court also instructed the jury with CALCRIM No. 3472 as follows: “A person does not have the right to self-defense if he provokes a fight or a quarrel with the intent to create an excuse to use force.” The court did not give the bracketed language regarding sudden escalation that is identical to the language in CALCIM No. 3471.5 2. Governing law and standard of review In cases of homicide, “[s]elf-defense, when based on a reasonable belief that killing is necessary to avert an imminent 4 CALCRIM No. 3471 defines mutual combat as follows: “A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose.” 5 The trial court also instructed the jury with CALCRIM Nos. 505 (“Justifiable homicide: self-defense or defense of another”); 571 (“Voluntary manslaughter: imperfect self- defense . . .”); and 3474 (“Danger no longer exists or attacker disabled”). (Capitalization omitted.) Lock’s counsel did not object to any of these instructions. 15 threat of death or great bodily injury, is a complete justification, and such a killing is not a crime.” (People v. Elmore (2014) 59 Cal.4th 121, 133-134; see § 197, subds. (1) & (2) [homicide is justifiable “[w]hen resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person” and “[w]hen committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony”]; see also CALCRIM No. 505.) “‘For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend.’” (People v. Humphrey (1996) 13 Cal.4th 1073, 1082; accord, People v. Horn (2021) 63 Cal.App.5th 672, 682.) A murder charge may also be mitigated by imperfect self- defense. “If the belief [in the need to defend oneself] subjectively exists but is objectively unreasonable, there is ‘imperfect self- defense,’ i.e., ‘the defendant is deemed to have acted without malice and cannot be convicted of murder,’ but can be convicted of manslaughter.” (People v. Humphrey, supra, 13 Cal.4th at p. 1082; accord, People v. Horn, supra, 63 Cal.App.5th at p. 682; see People v. Booker (2011) 51 Cal.4th 141, 182 [“Imperfect self- defense is the killing of another human being under the actual but unreasonable belief that the killer was in imminent danger of death or great bodily injury.”].) The right to self-defense or imperfect self-defense is generally not available to a defendant who is the initial aggressor, provokes a fight, or engages in mutual combat. (CALCRIM Nos. 3471, 3472.) The Supreme Court has “explained that ‘the ordinary self-defense doctrine—applicable when a defendant reasonably believes that his safety is endangered— may not be invoked by a defendant who, through his own 16 wrongful conduct (e.g., the initiation of a physical attack or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified.’” (People v. Valencia (2008) 43 Cal.4th 268, 288; accord, People v. Enraca (2012) 53 Cal.4th 735, 761.) However, even if the defendant is the initial aggressor, provocateur, or mutual combatant, “‘“where [a] counter assault is so sudden and perilous that no opportunity [is] given to decline further to fight and [the defendant] cannot retreat with safety he is justified in slaying in self-defense.”’” (People v. Salazar (2016) 63 Cal.4th 214, 249; see People v. Ramirez (2015) 233 Cal.App.4th 940, 943 (Ramirez) [“A person who contrives to start a fistfight or provoke a nondeadly quarrel does not thereby ‘forfeit[] . . . his right to live’” and may defend himself “‘even when [he] set in motion the chain of events that led the victim to attack the defendant.’”].) The bench notes for CALCRIM No. 3472 state the trial court should give the bracketed language on sudden escalation “if the defendant intended to provoke only a non-deadly confrontation and the victim responded with deadly force.” (See People v. Eulian (2016) 247 Cal.App.4th 1324, 1334 [“CALCRIM No. 3472 is generally a correct statement of law, which might require modification in the rare case in which a defendant intended to provoke only a non-deadly confrontation and the victim responds with deadly force”]; cf. Ramirez, supra, 233 Cal.App.4th at p. 950 [trial court erred in giving CALCRIM No. 3472 without addressing sudden escalation because the instruction “entirely precluded defendants’ self-defense claim,” 17 even though “the original victim escalated a nondeadly conflict to deadly proportions”].)6 A trial court has a duty to instruct on general principles of law applicable to the case that are “““closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.””” (People v. Valdez (2004) 32 Cal.4th 73, 115; accord, People v. Young (2005) 34 Cal.4th 1149, 1200.) However, “‘[a] trial court must give a requested [jury] instruction only if it is supported by substantial evidence, that is, evidence sufficient to deserve jury consideration.’” (People v. Leon (2020) 8 Cal.5th 831, 848; accord, People v. Nguyen (2015) 61 Cal.4th 1015, 1049 [“‘Just as with perfect self-defense or any defense, “[a] trial court need give a requested instruction concerning a defense only if there is substantial evidence to support the defense.”’”].) Even absent a request, the court must sua sponte instruct the jury on “any affirmative defense for which the record contains substantial evidence [citation]—evidence sufficient for a reasonable jury to find in favor of the defendant [citation]—unless the defense is inconsistent with the defendant’s theory of the case.” (People v. Salas (2006) 37 Cal.4th 967, 982 (Salas); accord, People v. Mentch (2008) 45 Cal.4th 274, 288.) Substantial evidence in the instructional context is evidence ““‘sufficient ‘to deserve consideration by the jury,’ not ‘whenever any evidence is presented, no matter how weak.””” (People v. Wilson (2005) 36 Cal.4th 309, 331; accord, People v. Larsen (2012) 205 Cal.App.4th 810,823; see People v. Alexander 6 The bench notes for CALCRIM No. 3471 do not address when a court should give the bracketed language on sudden escalation. 18 (2010) 49 Cal.4th 846, 920-921 [“‘“[B]efore a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference.”’”].) An instruction is not required where only “[s]peculative, minimal, or insubstantial evidence” supports the instruction. (People v. Simon (2016) 1 Cal.5th 98, 132, 134.) “In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether ‘there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.’” (Salas, supra, 37 Cal.4th at pp. 982-983.) In deciding whether to give a defense instruction, the court must “view the evidence in the light most favorable to the defendant.” (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.) We review a defendant’s claims of instructional error de novo. (People v. Simon, supra, 1 Cal.5th at p. 133 [“We review de novo a trial court’s decision not to give an imperfect self-defense instruction.”]; see People v. Cole (2004) 33 Cal.4th 1158, 1217 [“‘Whether or not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact [and] . . . should be examined without deference’”; whether to instruct on the meaning of terms is “predominately legal” and is reviewed de novo].) 3. Substantial evidence did not support instruction on sudden escalation Lock contends the trial court erred in instructing the jury with CALCRIM Nos. 3471 and 3472 but omitting the bracketed instructions on sudden escalation because the jury “needed to understand the sudden escalation principle in order to correctly 19 apply the law in the event it made factual determinations favorable to the defense theory of the case.”7 Substantial evidence did not support instructions on sudden escalation. As discussed, the sudden escalation instructions in CALCRIM Nos. 3471 and 3472 recognizes that the initial aggressor, provocateur, or mutual combatant may claim a right to self-defense if he initially used “only non-deadly force” and his opponent “responded with such sudden and deadly force that the defendant could not withdraw from the fight.” (See People v. Salazar, supra, 63 Cal.4th at p. 249; Ramirez, supra, 233 Cal.App.4th at p. 943.) Neither element is met in this case. It is undisputed that Lock was the first to apply deadly force in his confrontation with Reece. Even under Lock’s trial testimony, Lock grabbed Sanders’s keys, yelled to Tobin to bring Lock’s semiautomatic handgun, and entered the locked apartment with the gun. Although Lock testified that it was Reece who first spoke and told Lock to “squabble up,” it is undisputed that Reece did not physically engage Lock; instead, after seeing Lock’s gun, Reece ran down the hall and into the bedroom. It is also undisputed that Lock pursued Reece down the hall, fired the gun through the bedroom door knowing Reece was inside, and kicked down the door, at which point Reece ran past Lock into the kitchen. Lock also recounted that Reece tried to escape through the kitchen window, and only after he could 7 The People contend Lock forfeited his instructional error claim by failing to request instruction on sudden escalation. We decline to find forfeiture because Lock’s attorney argued for a more complete instruction, although he focused on the third element of mutual combat and not sudden escalation. 20 not escape did he run back toward Lock and try to grab the gun out of Lock’s hand, leading to a struggle and the fatal shot. The forensic evidence, which was substantially unchallenged at trial, corroborated Lock’s initial use of deadly force. Blood spatter and ballistics evidence from the hallway, bedroom, and bedroom door, and the two bullets recovered from Reece’s body, showed that Reece was either shot while in the bedroom or injured while trying to escape through the bedroom window as Lock fired through the door (with Reece’s blood splattering on the window blinds). The prosecution also presented unchallenged evidence that Lock intended to use deadly force against Reece. In his messages to Sanders, Lock repeatedly threatened to kill Reece, posting the messages “One shot one kill” and that the “nigga that was at my house not Fina live much longer,” and he directed that Amari not be at Sanders’s apartment “when it happens.” Moreover, there was no evidence that Reece responded to Lock’s initial aggression with sudden and deadly force that prevented Lock from withdrawing. On the contrary, although Lock testified he thought Reece might have gone into the bedroom to get a gun, Lock admitted during cross-examination that Reece was not visibly armed when Reece ran out of the bedroom and into the kitchen, and Reece was not carrying either a gun or a knife when he ran back toward Lock and tried to grab Lock’s gun. Lock also admitted he had multiple opportunities to leave the apartment but chose instead to pursue Reece. On appeal, Lock argues there was evidence that would have allowed a reasonable jury, if properly instructed, to find that he “entered his apartment believing his life was in danger and Reece’s emergence from the bedroom affirmed the 21 reasonableness of this belief.” Lock points to the messages and testimony showing he knew Reece was a member of the Avalon gang and his belief that Avalon members drove by his mother’s house after the September 3 incident and were hunting down Lock. He argues these fears were exacerbated by Sanders’s strange behavior at the front door when Lock went to pick up his phone, which instilled in Lock an “unshakeable fear” that someone might drive up and shoot him in the back if he remained outside the apartment. Lock also points to his testimony that he did not pursue Reece into the kitchen and instead remained in the hallway by the bedroom door with his gun pointed downward. Further, he asserts, the gun discharged only because Reece ran back at Lock and grabbed both the front and the back of the gun. But even assuming the jury believed all these facts, they supported instruction on self-defense and imperfect self-defense (as the trial court instructed); the facts did not show Lock initially used non-deadly force or that Reece used deadly force and prevented Lock from withdrawing. Finally, Lock’s contention that Reece’s attempt to wrestle the gun out of Lock’s hand constituted a sudden escalation fails. Lock cites no authority for the proposition that an attempt by an unarmed opponent to take a gun away from an armed initial aggressor constitutes a sudden escalation. Lock’s contention would immunize an armed assailant from the killing of an unarmed, wounded victim if the victim made a last-ditch attempt to disarm the shooter. 22 B. Substantial Evidence Supported Lock’s Burglary Conviction 1. Governing law and standard of review The crime of burglary is committed when a person “enters any . . . apartment . . . with intent to commit . . . larceny or any felony . . . .” (§ 459.) The offense includes “two important aspects” that derive from the common law: “A burglary remains an entry which invades a possessory right in a building. And it still must be committed by a person who has no right to be in the building.” (People v. Gauze (1975) 15 Cal.3d 709, 714 (Gauze); accord, People v. Sherow (2011) 196 Cal.App.4th 1296, 1308, fn. omitted.) “[A] possessory right is the right to exert control over property to the exclusion of others.” (People v. Salemme (1992) 2 Cal.App.4th 775, 779; accord, People v. Garcia (2017) 17 Cal.App.5th 211, 223.) Based on these limitations, the Supreme Court in Gauze held that a “defendant cannot be guilty of burglarizing his own home.” (Gauze, supra, 15 Cal.3d at p. 714; accord, People v. Garcia, supra, 17 Cal.App.5th at p. 224.) In Gauze, the defendant was convicted of assault with a deadly weapon and burglary after he quarreled with one of his roommates in their apartment, left the apartment, reentered with a shotgun, and shot the roommate. (Gauze, at p. 711.) The Supreme Court reversed the defendant’s burglary conviction, reasoning that his “entry into the apartment, even for a felonious purpose, invaded no possessory right of habitation . . . . More importantly, defendant had an absolute right to enter the apartment . . . that could not be conditioned on the consent of defendant’s roommates.” (Id. at p. 714; accord, Garcia, at p. 224