Return to CALJIC Part 5-8 - Contents

 

F 5.12 n1  Applicability Of Self-Defense To Felony Murder (PC 197 & PC 198).

 

It has been held that self-defense does not apply to felony murder predicated upon a nighttime burglary of an occupied residence. (People v. Loustaunau (86) 181 CA3d 163, 170 [226 CR 216].)  However, as to a claim of complete self-defense, Loustaunau is merely dicta.  The claim in that case was one of imperfect self-defense and the court rejected that claim noting, “...an honest but unreasonable belief in self-defense negates malice aforethought [Citation.]  In felony murder, on the other hand, malice aforethought is not required.”  (181 CA3d at 170.)

 

Moreover, no case has addressed the question of whether felony murder predicated upon a non-deadly felony (e.g., second degree auto-burglary) precludes self-defense.  Because a citizen’s right to use deadly force to apprehend a felon turns on whether the felony was “forcible and atrocious” (see People v. Quesada (80) 113 CA3d 533, 539 [169 CR 881]), it follows that self-defense should be available to defend against the use of deadly force by the apprehending citizen when the defendant committed a felony which was not “forcible and atrocious.”  [See Brief Bank # B-521 for briefing on this issue.]

 

[Research Note:  See FORECITE BIBLIO 5.10, et al.]


F 5.12 n2  Definition Of Great Bodily Injury (PC 197 & PC 198).

 

CJ 5.12 and CJ 5.16 fail to define the term “great bodily injury” for purposes of evaluating self-defense.  Because the term has a technical meaning peculiar to the law, it should be defined even without a request.  (See, e.g., People v. Reynolds (88) 205 CA3d 776, 779 [252 CR 637].)  Accordingly, the jury should be instructed that great bodily injury means “significant or substantial physical injury.”  (See 1 Witkin and Epstein, Cal. Crim. Law 2d (1986) § 243, p. 279; see also People v. Armstrong (92) 8 CA4th 1060, 1066 [10 CR2d 839]; People v. Covino (80) 100 CA3d 660, 667 [161 CR 155]; CJ 9.02.)  [See Brief Bank # B-504 for briefing on the court’s sua sponte duty to define great bodily injury in self-defense cases.]

 

[Research Note:  See FORECITE BIBLIO 5.10, et al.]


F 5.12 n3  Self-Defense:  When Self-Defense May Be Used Against Arrest By Private Citizen (PC 197 & PC 198).

 

CALJIC contains no instruction defining the circumstances under which a private citizen may use deadly force to apprehend a felon.  PC 197, as judicially interpreted, permits the use of deadly force by a citizen when “the circumstances of a particular case establish that the perpetrator’s conduct threatened, or was reasonably believed to threaten, death or serious bodily harm.’”  (See People v. Ceballos (74) 12 C3d 470, 479 [116 CR 233].)  Also, the arresting citizen must have actual knowledge that the felony was committed by the person being arrested.  (See PC 837; Gomez v. Garcia (80) 112 CA3d 392, 397 [169 CR 350]; People v. Aldapa (71) 17 CA3d 184, 188 [94 CR 579].)  [See Brief Bank # B-520 for briefing on these issues.]

 

[Research Note:  See FORECITE BIBLIO 5.10, et al.]


F 5.12 n4  Self-Defense:  Battered Woman/Child Syndrome (PC 197 & PC 198).

 

See FORECITE F 9.35.1; see also FORECITE BIBLIO 9.35.1.

 

[Research Note:  See FORECITE BIBLIO 5.10, et al.]


F 5.12 n5  Self-Defense:  Vulnerability Of Defendant To Show Honest Belief In Peril (PC 197 & PC 198).

 

The vulnerability of the defendant may be used to show an honest belief in peril.  (People v. Welch (82) 137 CA3d 834, 840 [187 CR 511].)

 

[Research Note:  See FORECITE BIBLIO 5.10, et al.]


F 5.12 n6  Self-Defense:  Abnormal Fear As Evidence Of Honest Belief Of Peril  (PC 197 & PC 198).

 

Abnormal fear as evidence of honest belief in peril.  (People v. Wells (49) 33 C2d 330, 344-45 [202 P2d 53].)

 

[Research Note:  See FORECITE BIBLIO 5.10, et al.]


F 5.12 n7  Duty To Instruct On Self-defense Or Imperfect Self-defense When Defendant Has Not Testified.

 

See FORECITE PG X(A)(1.3.2).


F 5.12 n8  Antecedent Threat Doctrine Applies To Recent Threats Or Violence By Victim. 

 

While the antecedent threat doctrine has typically been considered in circumstances involving prior threats or violence by the victim on previous occasions (see, e.g., People v. Bush (78) 84 CA3d 294 [148 CR 430]), the rationale of the doctrine applies to any violence or threat which precedes the act of defense.  “A person claiming self-defense is required to ‘prove his own frame of mind,’ and in so doing is ‘entitled to corroborate his testimony that he was in fear for his life by proving the reasonableness of such fear.’ [Citation.]” (People v. Minifie (96) 13 C4th 1055, 1065 [56 CR2d 133].)  “The defendant’s perceptions are at issue...[and therefore]...threats are relevant to the defendant’s state of mind -- a matter ‘of consequence to the determination of the action’ [EC 210] -- and the trier of fact is entitled to consider those threats along with other relevant circumstances in deciding whether the defendant’s actions were justified.”  (Minifie, 13 C4th at 1066.)

 

Accordingly, a long line of California cases have held that prior threats or violence by the victim justify an instruction informing the jury that such threats or violence justify the defendant in acting more quickly and taking harsher measures for his or her own protection than would be a person who had not received such threats.  (See, People v. Moore (54) 43 C2d 517, 528 [275 P2d 485]; People v. Gonzalez (92) 8 CA4th 1658, 1664 [11 CR2d 267]; see also, FORECITE F 5.12a.)

 

While these and other antecedent threat cases involve threats on previous occasions, the same concerns apply to threats or violence which are near or contemporaneous to the act of defense.  As observed by the U.S. Supreme Court: “Here the threats were recent and were communicated, and were admissible in evidence as relevant to the question of whether defendant had reasonable cause to apprehend and attack...and hence was justified in acting on a hostile demonstration and one of much less pronounced character than if such threats had not preceded it.  They were relevant because indicating cause of apprehension of danger and reason for promptness to repel attack....”  [Emphasis added.]  (Allison v. U.S. (1895) 160 US 203, 215 [40 LEd2d 395; 16 SCt 252].)

 

Similarly, State v. Peoples (1981 Mo.) 621 SW2d 324, 327, summarized this principle as follows: “The developed law of self-defense requires the special attention of the jury to evidence of prior threats, reputation or the turbulent disposition of the victim, and described acts of violence by the victim upon the defendant as those incidents may bear to prove the basic elements of the defense. [Citations.] A mere direction to the jury to consider such proofs does not suffice.  That is because those aspects of evidence are ‘the very heart of self-defense.’ [Citation.]  In a word: such evidence, contrary to contention, serves the duplicate role as proof of the fact of aggressor and as proof of the fact of the reasonableness of the apprehension at the time of resort to physical force for defense. [Citations.] That evidence, so salient to the defense, becomes part of the law of the case and is given to the jury as a component of the basic self-defense instruction. [Citations.] Thus, these incidents of prior threat of violence are submitted to explain the conduct of the defendant at the time of resort to defense, and not at the time of a determined provocation by the victim.  They encompass for purpose of instruction any threat or violence by the victim upon the defendant prior to the act of defense, whether contemporaneous with that conduct or less proximate to that event. [Citations.]”  [Emphasis added.]

 

Similarly, the Alabama courts have long held that the accused is entitled to the following instruction which focuses on the defense theory of victim threats or violence: “I charge you, members of the jury, that while threats alone will not serve as a justification for a homicide, if the jury believes from the evidence that the deceased, at the time of the homicide, was manifesting an intention to carry such threats into execution, by a positive act then done, or, that from the acts of the deceased at the time of the homicide, it would have appeared to a reasonable mind, under the circumstances, that the deceased was attempting to execute the threats against the defendant, you may then consider the threats made by the deceased in justification of the homicide.”“  (See Quinlivan v. State (1989 Ala.) 555 So2d 802, 804.)  This instruction is required “when a threat is made by a victim at or about the time of a fatal altercation, as well as when threats are made by a victim prior to an incident causing his death.”  (Ibid.)  “‘An accused is entitled to the charge in question whenever some evidence of self-defense has been offered and some testimony of a threat and its attempted execution has been presented.’ [Citation.]” (Ibid.)

 

Nor do general self-defense instructions, which do not specifically address the issue of threats or violence by the victim, suffice.  “[E]ven though the trial court ‘fully and fairly’ instructs the jury on the defense of self-defense, because the general law of self-defense does not cover the situation expressed in the charge [the victim threat/violence instruction should be given on request].”  (Quinlivan, 555 So2d at 204; see also, Hunter v. State (75) 325 So2d 921, 925 [295 Ala. 180] [threat concept not covered by other charges which had “no mention of ‘threats’”]; see also State v. Peoples, supra, 621 SW2d at 328 [evidence of threat and act of violence by victim shortly before the act of defense required sua sponte instruction on antecedent threats and failure to so instruct was prejudicial error.]”  [See Brief Bank # B-757 for additional briefing on this issue.]


F 5.12 n9  Failure to Request Antecedent Threats Instruction As IAC

 

[See Brief Bank # B-922 and Opinion Bank # O-314 for briefing and an unpublished opinion addressing this issue.]


F 5.12 n10  Self-Defense: Applicability to Aider and Abettor.

 

(See FORECITE F 3.01o.)


F 5.12a

 

Antecedent Threats To The Defendant Justify Quicker

And Harsher Measures In Self-Defense

 

*Add to CJ 5.12: 

 

One who has received threats against [his] [her] life or person made by another is justified in acting more quickly and taking harsher measures for [his] [her] own protection in the event of assault either actual or threatened, than would be a person who had not received such threats. 

 

If in this case you believe that __________ [insert name of deceased or assault victim] made prior threats against the defendant and that the defendant, because of such threats, had reasonable cause to fear greater peril in the event of an altercation with __________ [insert name of deceased or assault victim], you are to consider such facts in determining whether the defendant acted as a reasonable person in protecting [his] [her] own life or bodily safety.

 

Points and Authorities

 

Under California law, one who has received threats against his life or person by another is justified in acting more quickly and taking harsher measures for his own protection in the event of assault, whether actual or threatened, than would a person who had not received such threats.  (People v. Moore (54) 43 C2d 517, 528 [275 P2d 485]; People v. Gonzales (92) 8 CA4th 1658, 1664 [11 CR2d 267]; People v. Bush (78) 84 CA3d 294, 302-04 [148 CR 430]; see also Allison v. U.S. (1895) 160 US 203, 215 [40 LEd2d 395; 16 SCt 252] [prior threats relevant to justify “promptness to repel attack ...”].)  When the assault is by a party other than the one who made the antecedent threats, the instruction must be modified requiring the jury to find that the defendant “in fact believed” the assault and threats were made by the same person. [See Brief Bank # B-976 for briefing on this issue.]

 

Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process.  [See generally, FORECITE PG VII(C).]

 

                CALCRIM INSTRUCTION ON THIS POINT: See CALCRIM 505 [Justifiable Homicide: Self-defense or Defense of Another].

 

 

NOTES

 

Assault by Different Party.  Antecedent threat by one party and subsequent assault by another.  (People v. Gonzales (92) 8 CA4th 1658, 1664 [11 CR2d 267].)

 

Subsequent Assault By Another Person Who The Defendant Believes Made The Original Threat Or Assault.  Where the antecedent threat is by one party and the subsequent assault by another party, the instruction should include language such as the followings:  “If the assault is by a person other than the person who made the antecedent threat, then the defendant is justified in acting more quickly and taking harsher measures only if the defendant in fact believed the individual making the assault was the same individual who had previously assaulted him.”  (People v. Gonzales (92) 8 CA4th 1658, 1664 [11 CR2d 267].)  Also note that Gonzales reaffirmed that the traditional antecedent threat instruction is “well settled.”  (Gonzales, 8 CA4th at 1664.)

 

Failure To Give Antecedent Threat Instruction Is Reversible Error.  In People v. Jelks UNPUBLISHED (A053527) and People v. Tafoya UNPUBLISHED (3/30/95, B080123), the Court of Appeal reversed for failure to give FORECITE’s antecedent threat instruction.  [A copy of these opinions are available to current FORECITE subscribers.  Ask for Opinion Bank # O-119]; see also, People v. Parish UNPUBLISHED (7/18/95, A064582) [reversing for failure to give requested antecedent threat instruction and holding that the other instructions did not adequately cover the relevance of the antecedent threats to the claim of self-defense.] [A copy of the opinion and brief in People v. Parish UNPUBLISHED is available to FORECITE subscribers.  See Brief Bank # B-691 and ask for  Opinion Bank # O-206.]

 

People v. Pena (84) 151 CA3d 462, 475 [198 CR 819] held that the erroneous failure to instruct on antecedent threats is “presumed prejudicial.”  [Additional briefing regarding the prejudicial impact of the failure to instruct on antecedent threats is available to FORECITE subscribers, ask for Brief Bank # B-723.]

 

Failure To Request Antecedent Threat Instruction Is IAC. The 5th District Court of Appeal has held that it is ineffective assistance of counsel not to request an antecedent threat instruction in the appropriate case.  (People v. Marshall UNPUBLISHED (12/16/92) (F016198.)  [FORECITE subscribers may obtain a copy of the Marshall Opinion.  Ask for Opinion Bank # O-131.]

 

Antecedent Threats By Associates Of The Victims.  (See FORECITE F 5.12g.)

 

Application Of Antecedent Threat Doctrine To Recent Threats.  (See FORECITE F 5.12 n8.)

 

Whether Prior Mutual Combat Is Antecedent Threat?  (See People v. Bolden DEPUBLISHED (99) 71 CA4th 730, 740 [84 CR2d 111] [prior participation in mutual combat does not justify antecedent threats instruction; instruction also argumentative because it referenced “technical ‘assaults’ while ignoring the circumstances”].)


F 5.12b

 

Transferred Self-Defense

 

*Add to CJ 5.12:

 

 

If a person acts in the exercise of [his] [her] right of self-defense and by such act inadvertently [injures] [kills] an innocent bystander, the person has committed no crime against the bystander.

 

or

 

Self-defense is available to insulate a defendant from criminal responsibility where his or her act, justifiably in self-defense, inadvertently results in the death or injury of an innocent bystander.  Hence, when one attempts to justifiably defend [himself] [herself], but by mistake or inadvertence kills or injures a different person, no crime has been committed.

 

Points and Authorities

 

The doctrine of transferred self-defense is available to insulate one from criminal responsibility where his or her act, justifiably in self-defense, inadvertently resulted in the injury of an innocent bystander.  Under this doctrine, “just as ‘one’s criminal intent follows the corresponding criminal act to its unintended consequences,” so too one’s lack of criminal intent follows the corresponding non-criminal act to its unintended consequences.”  (People v. Levitt (84) 156 CA3d 500, 508 [203 CR 276] emphasis in original, citing People v. Mathews (79) 91 CA3d 1018, 1023 [154 CR 628].)

 

In People v. Mathews (79) 91 CA3d 1018, 1024 [154 CR 628] it was held that “the doctrine of self-defense is available to insulate a defendant from criminal responsibility where his act, justifiable in self-defense, inadvertently results in the injury of an innocent bystander.”  This is a well-accepted principle of law.  (See e.g., People v. Curtis (94) 30 CA4th 1337, 1357 [37 CR2d 304]  See Annotation, Unintentional killing of or injury to third person during attempted self-defense, 55 ALR3d 620 and Later Case Service.)  The reason behind this principle is that just as intent follows the act to its natural and probable -- albeit unintended -- consequences, a defendant’s lack of criminal intent also follows the corresponding justifiable act to its unintended consequences.  (Mathews, 91 CA3d at 1023.) 

 

Accordingly, when appropriate, the self-defense and/or transferred intent instructions should incorporate the principle of transferred self-defense. 

 

Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process.  [See generally, FORECITE PG VII(C).]

 

NOTES

 

[Additional briefing on this issue is available to FORECITE subscribers.  See Brief Bank #B-540 and ask for  Brief Bank # B-732 and Opinion Bank # O-230.]


F 5.12c

 

A Previously Battered Woman Has The Right To Act More Quickly And

Harshly in Self-Defense

 

*Add to CJ 5.12:

 

A person who suffers from battered woman syndrome has a greater sensitivity to danger than does the ordinary person.  As a result, a person who suffers from battered woman syndrome is justified in acting more quickly and taking harsher measures for her protection in the event of assault either actual or threatened, than would a person who is not subject to battered woman syndrome.

 

Evidence has been received in this case that the defendant suffers from battered woman syndrome and has a greater sensitivity to danger.  If you believe that the defendant has a greater sensitivity to danger and, because of such sensitivity, had reasonable cause to fear greater peril in the event of an altercation with __________ [insert name of deceased or alleged assault victim], you are to consider such sensitivity in determining whether the defendant acted reasonably in protecting her life or bodily safety.

 

 

Points and Authorities

 

[See FORECITE F 9.35.1a.]

 

NOTES

 

[See Opinion Bank # O-136 for additional materials on BWS..]

 

[See also, FORECITE BIBLIO 9.35.1]


F 5.12d

 

Assaultive Character To Show Victim Acted In Conformity With Character

 

*Add to CJ 5.12:

 

Evidence of the character trait for violence of __________  [victim] in the form of the opinions of people who knew [him] [her] may be considered by you as relevant to the issue of whether __________  [victim] was acting in conformity with [his] [her] character trait for violence on __________, 19____.

 

Points and Authorities

 

 EC 1103(a)(1); People v. Thomas (69) 269 CA2d 327, 329 [74 CR 617]; People v. Rowland (68) 262 CA2d 790, 797 [69 CR 269].  (See also, Rucker and Overland, California Criminal Forms and Inst., Vol. 4 § 48:7 (1993 Ed.) for alternative form of instruction relating to bad character of victim per EC 1103.)

 

When the issue is the accused’s state of mind, the character of the deceased may be relevant but it must be accompanied with proof that the defendant was aware of such character or else it is irrelevant.  (See generally, U.S. v. James (9th Cir. 1999) 169 F3d 1210.)  On the other hand, where the issue is who was the aggressor, the character of the deceased -- even if unknown to the defendant -- is relevant to show the probability that the deceased was the aggressor.  (See U.S. v. Burks (D.C. Cir. 1972) 470 F2d 432, 437.)  As Wigmore put it:  “It is well and generally known that there are some violent and dangerous men in this country, who are in the habit of carrying pistols,belted behind them and in their pockets , who never think of fighting in any other way than with deadly weapons, who are expert in using them, and who, especially when intoxicated, bring on and press to the extreme of outrage their deadly encounters for causes and provocations that would be regarded as utterly trivial by peaceable men; and that if one of such persons, while engaged in an angry altercation, should suddenly step back and rapidly throw his hand behind him, it might readily be understood by those who saw it to mean that he was in the act of drawing a pistol to use it.  The same act by one of the great mass of our peaceable citizens who are not in the habit of carrying weapons would suggest no such thought, and in such case the pistol would have to be drawn and exhibited before any such thing would be conceived, unless there had been some very extraordinary provocation.”  (II Wigmore at § 246(1)(a), at 51 (quoting Horbach v. State (1875) 43 Tex. 242, 250; see U.S. v. Saenz (9th Cir. 1999) 179 F3d 686, 688-89; U.S. v. James (9th Cir. 1999) 169 F3d 1210, 1214-15.)

 

[See Brief Bank # B-840 for additional briefing on this issue.]

 

CAVEAT:  If the defense shows that the victim had a violent character, the prosecution may rebut with good character of the victim and/or put on evidence of the violent character of the defendant.  (EC 1101b.)

 

[RESEARCH NOTE: See also George P. Fletcher, Self-Defense As A Justification For Punishment, 12 Cardozo L.Rev. 859 (1991).]


F 5.12e

 

Evidence Of Assaultive Acts To Show Victim

Acted In Accordance With Character

And To Show Reasonableness Of Defendant’s Belief

 

*Add to CJ 5.12:

 

Evidence was received of assaultive, aggressive or violent acts committed by __________ [victim] upon __________ [defendant].  This evidence may be considered by you for two purposes:

 

(1)  To prove that  __________  [victim] had an assaultive, aggressive or violent character and that [he] [she] acted in conformity with such character on __________, 19_____;

 

(2)  As relevant to  __________’s [defendant] honest and reasonable belief in the necessity to defend [himself] [herself] against death or great bodily injury at the hands of  __________ [victim].

 

Points and Authorities

 

EC 1103(a); People v. Thomas (69) 269 CA2d 327, 329 [74 CR 617]; People v. Rowland (68) 262 CA2d 790, 797 [69 CR 269].

 

CAVEAT:  If the defense shows that the victim had a violent character, the prosecution can rebut with good character of the victim and/or put on evidence of the violent character of the defendant.  (EC 1101b.)


F 5.12f

 

“Reasonably Should Know” Standard: Consideration Of Physical Disabilities

 

*Add to CJ 5.12:

 

[See FORECITE F 5.12h.]


F 5.12g

 

Antecedent Threats By A Third Party Or Group

Justify Quicker And Harsher  Measures In Self-Defense

 

*Add to CJ 5.12:

 

One who has received threats against [his] [her] life or person made by [a group] [or] [a person other than the victim] is justified in acting more quickly and taking harsher measures for [his] [her] own protection in the event of assault either actual or threatened, than would be a person who had not received such threats provided the person receiving the threats reasonably associated the victim with those threats.

 

If in this case you believe that _____ [insert name of third party and/or group] made prior threats against the defendant, that the defendant reasonably associated _____ [insert name of alleged victim] with such threats and, because of such threats, defendant had reasonable cause to fear greater peril in the event of an altercation with _____ [insert name of alleged victim], you are to consider such facts in determining whether the defendant acted as a reasonable person in protecting [his] [her] own life or bodily safety.

 

Points and Authorities

 

Under California law, one who has received threats against his life or person by another is justified in acting more quickly and taking harsher measures for his own protection in the event of assault, whether actual or threatened, than would a person who had not received such threats.  (See FORECITE F 5.12a.)  The same principle applies when the threats were made by members or associates of a group who, in the defendant’s mind, was reasonably associated with the victim. (People v. Minifie (96) 13 C4th 1055 [56 CR2d 133]; see also Annotation, Admissibility Of Threats To Defendant Made By Third Parties To Support Claim Of Self-Defense In Criminal Prosecution For Assault Or Homicide, 55 ALR5th 449, and Later Case Service.)

 

Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process.  [See FORECITE PG VII(C).]

 

NOTES

 

Subsequent Assault By Another Person Who The Defendant Believes Made The Original Threat Or Assault.  Where the antecedent threat is by one party and the subsequent assault by another party, the instruction should include language such as the followings:  “If the assault is by a person other than the person who made the antecedent threat, then the defendant is justified in acting more quickly and taking harsher measures only if the defendant in fact believed the individual making the assault was the same individual who had previously assaulted him.”  (People v. Gonzales (92) 8 CA4th 1658, 1664 [11 CR2d 267].)  Also note that Gonzales reaffirmed that the traditional antecedent threat instruction is “well settled.”  (Gonzales, 8 CA4th at 1664.)


F 5.12h 

 

Reasonable Person Standard:

Consideration Of All Relevant Circumstances

In Which The Defendant Is Placed

 

*Add to CJ 5.12: 

 

In deciding whether a reasonable person placed in a similar position as the defendant would have been justified in using self defense, you should consider all the relevant circumstances applicable to the defendant.  Such circumstances include factors such as the defendant’s physical disabilities, the defendant’s intoxication, and prior threats and acts of physical violence perpetrated by the alleged victim against third parties about which the defendant had knowledge.

 

Points and Authorities

 

It is well established that the objective reasonable person standard requires consideration of all the circumstances in which the defendant was placed.  (See e.g., FORECITE F 8.42 n3; see also People v. Humphrey (96) 13 C4th 1073, 1083 [56 CR2d 142]; People v. Minifie (96) 13 C4th 1055, 1065-66 [56 CR2d 133]; see also People v. Mendoza (97) 59 CA4th 1333, 1340 [69 CR2d 728] [whether the words of a threat (for purposes of PC 422) conveyed an immediacy of purpose and immediate prospect of execution of the threat can be based on all the surrounding circumstances, including the parties’ history, and not just on the words alone]; People v. Matthews (94) 25 CA4th 89, 99 [30 CR2d 330].)  Accordingly, the jury should be instructed to consider all the relevant circumstances in which the defendant was placed.  (People v. Spencer (96) 51 CA4th 1208, 1220 [59 CR2d 627]; see also People v. Randle (2005) 35 C4th 987 [attorney general acknowledges that in determining objective reasonableness the "jury must consider all the facts and circumstances it might expect to operate on the defendant's mind"].)

 

Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process.  [See FORECITE PG VII(C).]


F 5.12i 

 

Antecedent Threats: Existence Of Threat To Be Determined

In Light Of All The Surrounding Circumstances

 

*Add to CJ 5.12 and F 5.12a; 5.12g:

 

In determining whether the defendant received a threat against his/her life or person you must consider not just the words that were used but all of the surrounding circumstances.

 

Points and Authorities

 

Even if the words used are ambiguous or do not literally articulate a threat, the defendant may still reasonably construe the words as a threat when considered together with all the surrounding circumstances.  (See People v. Mendoza (97) 59 CA4th 1333 [69 CR2d 728] [jury must consider all the surrounding circumstances in determining whether words were a “threat” per PC 422 and PC 136.1 (c)(1)].)  Accordingly, when the language is ambiguous, the above instruction should be added to CJ 5.12.

 

Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process.  [See FORECITE PG VII(C).]


F 5.12j 

 

Self-Defense: Driving By Person Who May

Initiate An Assault Does Not Negate Driver’s Right To Self-Defense

 

*Add to CJ 5.12:

 

The defendant has no obligation to curtail [his] [her] activities to avoid an encounter with a person who may attack [him] [her]. Therefore, a person does not forfeit his or her right to self-defense simply by driving by another person on a public street even if the person driving by has reason to believe that the other party may initiate an assault by shooting at the passing automobile.

 

Points and authorities

 

                It is well settled in California that self-defense is not available to one who has sought a quarrel with the intent to force a deadly issue, and thus creating a real or apparent necessity for his own assault.  (See People v. Garnier (50) 95 CA2d 489, 496 [213 P2d 111]; see also CJ 5.54; CJ 5.55.) However, this rule does not apply to one who, while otherwise acting lawfully, simply fails to curtail his or her activities to avoid an encounter with another person.  “For one may know that if he travels along a certain highway he will be attacked by another with a deadly weapon, and be compelled in self-defense to kill his assailant, and yet he has the right to travel that highway, and is not compelled to turn out of his way to avoid the expected unlawful attack.”  (People v. Gonzales (1887) 71 C 569, 578 [12 P 783].)  “A person threatened with an attack that justifies the exercise of the right of self-defense need not retreat ... This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene.”  (CALJIC 5.50.)

 

                Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process.   [See FORECITE PG VII(C).]

F 5.12k 

 

Justifiable Homicide In Self-Defense Or Defense Of Others

 

*Modify CJ 5.12 as follows [added language is capitalized]:

 

The killing of another person in self-defense OR DEFENSE OF OTHERS is justifiable and not unlawful when the person who does the killing actually and reasonably believes:

 

1.             That there is imminent danger that the other person will either kill [him] [her] [AND] [OR] [ANOTHER] or cause [him] [her] [AND] [OR] [ANOTHER] great bodily injury; and

 

2.             That it is necessary under the circumstances for [him] [her] [AND] [OR] [ANOTHER] to use in self-defense OR DEFENSE OF OTHERS force or means that might cause the death of another person, for the purpose of avoiding death or great bodily injury to [himself] [herself] [AND] [OR] [ANOTHER].

 

A bare fear of death or great bodily injury is not sufficient to justify a homicide.  To justify taking the life of another in self-defense OR DEFENSE OF ANOTHER, the circumstances must be such as would excite the fear of a reasonable person placed in a similar position, and the party killing must act under the influence of those fears alone.  The danger must be apparent, present, immediate and instantly dealt with, or must so appear at the time to the slayer as a reasonable person, and the killing must be done under a well-founded belief that it is necessary to save one’s self OR ANOTHER from death or great bodily harm.

 

Points and Authorities

 

PC 197(1) states that homicide is justifiable “when resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person...”  PC 694 states “Any other person, in aid or defense of the person about to be injured, may make resistance sufficient to prevent the offense.”

 

Clearly, homicide is justifiable in defense of others.      “By statute reflecting the common law a person may use ‘resistance sufficient to prevent’ an offense against his person (PC 693) or another (PC 694), and may even use deadly force ‘when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished’ (PC 197(3)), if the circumstances are ‘sufficient to excite the fears of a reasonable person.’ (PC 198).”  (People v. King (78) 22 C3d 12, 26 [148 CR 409] [defendant used gun at party to protect hosts from party crashers]; see also People v. Turner (1948) 86 CA2d 791 [195 P2d 809] [“application of the law of self-defense has been before the courts on many occasions, and it is now firmly established, ... that it is based on the reasonable appearance of imminent peril of death of, or serious bodily injury to the party assailed, or the one sought to be protected.” [Emphasis added.]].)  (See also Robinson, Criminal Law Defenses § 133 [nearly every American jurisdiction recognizes a justification for the defense of other persons.)


F 5.12l

 

Assault By Hands Or Fists May Justify

Use Of Deadly Force In Self-Defense

 

*Add to CJ 5.12:

 

                For the purposes of this instruction, great bodily injury means a significant or substantial physical injury.  Such injury may be inflicted by the hands or fists.

 

                                                                                    Points and Authorities

 

When appropriate, the jury should be instructed as to the meaning of the term "great bodily injury" as pertaining to self-defense.  (See also FORECITE F 5.12 n2.)  In particular, the jury may not understand that deadly force may be available to defend against an assault by hands or fists.

 

It is a long standing principle in California law that use of hands and fists alone may be sufficient to support a conviction of assault by means of force likely to produce great bodily injury.   (See CJ 9.08; see also People v. Armstrong (92) 8 CA4th 1060, 1066 [10 CR2d 839]; In re Nirran W. (1989) 207 CA3d 1157, 1161 [255 CR 327]; People v. Wingo (75) 14 C3d 169, 176 [121 CR 97]; People v. Chavez (68) 268 CA2d 381, 384 [73 CR 865]; People v. Zankich (61) 189 CA2d 54, 70 [11 CR 115]  ["It is thoroughly settled in this state that an assault by means of 'force likely to produce great bodily injury' [citation] may be made by the use of hands or fists."].)  A conviction for assault by force likely to produce great bodily injury was upheld in People v Hopkins (78) 78 CA3d 316 [142 CR 572] where the extent of the injuries after "scuffle" were a cut on the forehead, a bloody and swollen nose, and puffed eyes."  (Id. at p. 318.)

 

The fear of great bodily injury which triggers the duty to instruct on self-defense cannot be a greater degree of bodily injury defined elsewhere in the Penal Code.  Statutes are said to be "in pari materia" when they have similar phrases appearing in each and they must be given like meanings.  (Hunstock v. Estate Development Corp. (43) 22 C2d 205, 210 [138 P2d 1] ["elementary rule" of   statutory construction is that statutes in pari materia -- that is, statutes relating to the same subject matter -- should be construed together].  Accord, In re Phyle (47) 30 C2d 838, 845 [186 P2d 134]; In re Marriage of Pinto (72) 28 CA3d 86, 89 [104 CR 371]; 59 Ops. Cal. Atty. Gen. 23, 25 (1976).)

 

                Another, equally fundamental rule of statutory construction applicable here is that:

 

"[When] language which is reasonably susceptible of two constructions is used in a penal law ordinarily that construction which is more favorable to the offender will be adopted . . . . 'the defendant is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute.' [Citations.]"  (People v. Ralph (44) 24 C2d 575, 581 [150 P2d 401].)


F 5.12m

 

Battered Person Syndrome As

Relevant To Issue Of Imminent Danger

*Add to CJ 5.12 as follows:

SAMPLE INSTRUCTION # 1:

The imminent danger element may be satisfied when a battered woman believes she is in imminent danger of death or serious bodily harm even though her batterer is not physically abusing her at the time when the battered woman acts. This is because battered women can experience a heightened sense of imminent danger arising from the perpetual terror of physical and mental abuse. Often the terror does not wane, even when the batterer is absent or asleep.

[Source: Robinson v. State (SC 1991) 417 SE2d 88, 91.]

SAMPLE INSTRUCTION # 2:

In deciding whether the defendant had a reasonable belief of imminent danger and whether defendant actually was in such imminent danger, you must consider prior instances of violence or of unprovoked aggression by _________ (name of alleged victim).

[Cf. Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(A)10.5 [Prior Incidents of Violence By Assailant] p. 278 (South Carolina CLE, 1994).]

Points and Authorities

See FORECITE F 9.35.1a. Regarding "you must" language, see FORECITE F 4.21e.