Self-Defense/Crime Prevention
Category > Self-Defense/Crime Prevention
Updated 2/4/2024A defendant’s physical infirmities are a proper consideration for the jury in deciding the reasonableness of his self-defense claim.The prosecutor misstated the law during closing argument by telling the jury defendant’s physical infirmaries (spinal problems) were immaterial to whether his belief in the need for self-defense was objectively reasonable. However, the trial court later cured the error by instructing about the relevance of a defendant’s physical problems on his claim of self-defense. id: 27298
The trial court erred by excluding expert testimony on the heightened sensitivity to violence experienced by homeless people as the evidence was relevant to self-defense and imperfect self-defense.Defendant, a homeless man on trial for the murder of another homeless man sought to introduce expert testimony suggesting that homeless people are more sensitive to perceived threats of violence due to their higher rate of victimization. The trial court abused its discretion by excluding this testimony because it was relevant to defendant’s actual belief in the need to use deadly force to defend himself, and to the reasonableness of that belief. The evidence was also relevant to defendant’s credibility, and the opinion was a proper subject of expert testimony. The error required reversal of defendant’s conviction.id: 24939
The trial court erred by precluding the jury from considering the evidence of defendant’s voluntary intoxication with respect to his claim of imperfect self-defense. Penal Code section 29.4 expressly allows for consideration of voluntary intoxication with respect to express malice. Because an actual but unreasonable belief in the need for self-defense negates express malice, section 29.4 makes evidence of voluntary intoxication relevant to the state of mind required for imperfect self-defense.id: 24781
The trial court erred in refusing to instruct of self-defense against an intruder simply because defendant didn’t legally sublet the apartment he was living in.The trial court erred by refusing to instruct the jury pursuant to Penal Code section 198.5 that a person using force within his/her residence shall be presumed to have held a reasonable fear of injury to self or another member of the household. The court refused the instruction claiming the defendant was not legally subletting the apartment. However, he had been living there for a few months, had a key and was paying rent. A reasonable jury could have found the unit was defendant’s residence for purposes of section 198.5.id: 24658
The instruction erroneously required the jury to conclude that in contriving to use force, even just to provoke a fistfight, the defendants forfeited any right to imperfect self-defense.The trial court instructed the jurors that 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 argued repeatedly that if the defendants sought to provoke a fistfight, they forfeited a claim of imperfect self-defense. The instruction was erroneous because the question of whether a defendant who provokes a fight using nondeadly force is entitled to imperfect self-defense is a question for the jury to decide. The error required reversal of the murder convictions.id: 23980
The evidence supported self-defense and voluntary manslaughter instructions where defendants entered the victim's house intending only to retrieve a pager and perhaps engage in a fistfight.Evidence showed the defendants intended to retrieve a pager belonging to one defendant from the defendant's house, and perhaps to engage in a fistfight. After the victim swung a baseball bat, one defendant stabbed him. The court erred in refusing to instruct on self-defense and voluntary manslaughter. The error was prejudicial where it was reasonably probable that the jury would have reached a different verdict if it had known of the option to convict the defendants of the lesser included offenses.id: 15446
Self-defense instruction should not have been given in the provocative act murder case.Defendants argued the trial court erred by instructing with CALJIC 5.44 regarding a resident’s right to self-defense against an intruder. Provocative act murder, the theory used to convict the defendants does depend upon the reasonableness of the actual killer’s lethal response, and therefore none of the self-defense instructions should have been given. However, the error was harmless where the defendants requested the instruction, and it benefitted the defendants by giving them another theory to argue that provocative act had not been proved. id: 23028
Self-defense can be a defense to direct child abuse charged under the third branch of Penal Code section 273a. The trial court erred by instructing on self-defense with respect to the felony assault but refusing to so instruct in connection with felony child abuse. Self-defense can be a defense to direct child abuse. The parental discipline instruction given by the trial court did not substitute for the concepts related to the defense of self-defense.id: 22505
An arrestee in a citizen’s arrest may use self-defense if he reasonably believes that he is in imminent danger of excessive force by the arresting citizen.An individual being subjected to a citizen’s arrest has a right to use self-defense not only when excessive force is being applied to him but also when he reasonably believes that a threat of bodily injury or unlawful touching is imminent, even if the threat does not in fact exist. There is no reasonable likelihood that the jurors interpreted the instructions given to mean that until the party making the citizen’s arrest actually uses excessive force, the arrestee may not act in self-defense. id: 21224
The trial court erred by refusing imperfect self-defense instructions after finding defendant did not fear imminent peril.Defendant was convicted of second degree murder. The trial court prejudicially erred by refusing to instruct on imperfect self-defense. The court initially erred by finding defendant did not believe he was in imminent peril from the victim's attack. It was for the jury to determine defendant's state of mind. The court's ruling was also flawed by its finding that defendant set in motion the chain of events that resulted in the killing. A defendant may assert imperfect self-defense in that situation if the victim is the first to use unlawful force.id: 18929
The trial court should have instructed on self-defense where there was evidence to support the instruction despite defendant’s claim of accident.Defendant had a confrontation with a man in a van. Defendant testified he thought the man in the van intended to run him over, so he drew a weapon which accidentally discharged. When a defendant claims the shooting was accidental, he cannot normally claim self-defense. However, a defendant’s assertion of accident may be disregarded by the jury. Here, there was sufficient evidence that defendant intentionally shot the alleged victim in self-defense despite his claim of accident. Therefore, the trial court prejudicially erred by refusing defendant’s request for self-defense instructions and instructions on the lesser included offense of attempted voluntary manslaughter by means of imperfect self-defense.id: 20750
The trial court erred by failing to instruct on Penal Code section 195 regarding excusable homicide committed during an accident in the course of a lawful act such as brandishing a weapon in self-defense.Defendant testified that he drew a weapon in self-defense, but fired accidentally. Under these circumstances the shooting is not considered self-defense. However, the trial court should have been instructed on Penal Code section 195 which provides that a homicide is excusable when committed by accident and misfortune in the course of doing a lawful act by lawful means, without any unlawful intent; and that brandishing a weapon in self-defense is a lawful act.id: 20715
The trial court prejudicially erred in refusing to instruct on imperfect self-defense given the evidence that an unidentified person shot at defendant.Defendant was convicted of murder and attempted murder following a dispute at a party. Given the testimony that someone shot at defendant first, together with the undisputed evidence that two guns were used and a bullet from one gun (that may have been fired by someone other than the victims) struck a jacket defendant may have been wearing at the time of the shooting, the evidence supported instructions on self-defense as well as imperfect self-dense. The trial court prejudicially erred in refusing to instruct on imperfect self-defense. Moreover, the invited error doctrine did not apply even though defense counsel did not argue vigorously for the imperfect self-defense instruction.id: 16573
Self-defense is available to a charge of possession of a weapon by an inmate.Defendant was convicted of possessing a weapon in prison. The trial court erred in failing to instruct on self-defense as there was evidence that he temporarily seized the weapon because of fear of immediate harm from his attackers. However, the error was harmless as the jury had considered this theory when evaluating the necessity defense and there was no reasonable possibility that the verdict was affected by the jury's evaluation based on whether defendant proved it by a preponderance of the evidence rather than whether the prosecution disproved it beyond a reasonable doubt.id: 19924
The trial court prejudicially erred in failing to properly instruct on "mutual combat" for purposes of self-defense.Defendant was convicted of aggravated assault. The court instructed that a person cannot claim self-defense if engaged in mutual combat, but then refused the jury's request for a definition of "mutual combat." This left the jury free to suppose any exchange of blows qualified as mutual combat, although the doctrine only applies to a violent confrontation conducted pursuant to prearrangement, mutual consent, or an express or implied agreement to fight. The trial court prejudicially erred by failing to define mutual combat.id: 19877
Court erred in giving a Flannel instruction regarding the chief prosecution witness specifically stating the unreasonable belief of duress at the time she lied to police negated the specific intent required to become an accomplice.Appellant was convicted of being an accessory after the fact pursuant to Penal Code section 32. The defense argued the chief prosecution witness was an accomplice as a matter of law. The trial court erred in instructing the jury that the witness could be exonerated from responsibility as an accomplice with an honest but unreasonable belief that her actions were required because specific intent is not negated by an honest but unreasonable belief. The error was prejudicial where the only evidence supporting appellant's conviction was the testimony of that witness and her status as an accomplice was crucial to the defense.id: 13166
Evidence of "battered women's syndrome" was admissible on the reasonableness of self-defense claim as well as the existence of defendant's belief that the killing was necessary.The trial court instructed the jury could consider the "battered women's syndrome" testimony in deciding whether defendant actually believed it was necessary to kill in self-defense, but not in deciding whether that belief was reasonable. The instruction was erroneous. Because evidence of battered women's syndrome may help the jury understand the circumstances in which the defendant found herself at the time of the killing, it was relevant to the reasonableness of her belief. Moreover, because defendant testified, the evidence was relevant to her credibility. The trial court should have allowed the jury to consider this testimony in deciding the reasonableness as well as the existence of defendant's belief that the killing was necessary.id: 13172
Evidence of third-party threats is admissible to support a claim of self-defense.Evidence of third-party threats is admissible to support a claim of self-defense if there is also evidence from which the jury may find that the defendant reasonably associated the victim with those threats.id: 13173
Self-defense instructions should have been expanded to include prior threats or assaults by victim on third persons of which defendant was aware.The self-defense instructions should have been broadened to expressly include, as requested, prior assaults or threats made by the victim on third persons of which defendant was aware. The error in refusing the instruction was harmless since the instructions given did not suggest the jury disregard the admitted evidence of the victim's acts or threats against third persons.id: 13179
The aggravating factor of victim vulnerability had no application in light of the jury's verdict that defendant acted in imperfect self-defense.The manslaughter verdict as construed by the trial court constituted a finding that defendant acted in imperfect self-defense - that he killed in an honest but unreasonable belief that he needed to defend himself. The trial court erred in imposing the upper term based on the vulnerability of the victims because defendant's conduct was inconsistent with victim vulnerability.id: 13180
The trial court erred in failing to modify the self-defense against assault instruction to say a person in certain circumstances may use a reasonable force to resist a battery even when he has no reason to believe he will suffer bodily injury.Defendant and the victim had an altercation and the victim fell to the ground striking his head on the concrete. The jury found defendant guilty of simple assault rather than the charged aggravated assault. It therefore must have accepted defendant's version that he pushed rather than punched the victim and the victim initiated the events by poking defendant in the chest. The trial court prejudicially erred in failing to modify the standard instruction on self-defense against an assault (CALJIC 5.30) to say that a person may, in appropriate circumstances, use reasonable force to resist a battery even when he is about to suffer bodily injury.id: 16077
The trial court prejudicially erred in refusing instructions on self-defense where defendant testified the shooting was accidental.Defendant was convicted of assault with a firearm. He testified the gun had fired accidentally. He did not testify he intentionally fired in self-defense. Nevertheless, he requested instructions on self-defense. The trial court erred in refusing the requested self-defense instructions. The jury disbelieved the defendants testimony that the gun was fired accidentally. Having no instruction regarding an intentional firing in self-defense, the jury was deprived of any further alternative under the instructions given other than to convict. The jury could have found defendant fired the gun intentionally hoping to end the attack on him. The courts refusal to instruct on self-defense required reversal of defendants conviction.id: 16078
The trial court erred in failing to instruct that an original aggressor may reclaim the right of self-defense if met with a sudden and deadly counterattack.The trial court erred in failing to instruct the jury that when a person who engages in a simple assault is met with a sudden and deadly counterattack, he regains the right to use deadly force in self-defense. The legal proposition is recognized in the case law, but is not included in the CALJIC instructions. Moreover, the instructions given, specifically CALJIC No. 5.56, seem to reject a self-defense claim in that situation. The error was prejudicial under the Chapman test, where the jury may have adopted the defendant's version of the facts.id: 17759
Court extends Flannel doctrine to the imperfect defense of others.One who kills in the actual but unreasonable belief he must protect another person from imminent danger of death or great bodily injury is guilty of voluntary manslaughter and not murder, because he lacks the malice required for murder.id: 18565
The instructions failed to inform the jury that although defendant was a convicted felon, he had the right to defend himself, stand his ground and use reasonable force.The trial court erred by instructing the jury with CALJIC 12.50, Use of a Firearm by a Convicted Felon - Self Defense, and further by refusing to instruct with CALJIC 5.50, Self-Defense - Assailed Person Need Not Retreat. CALJIC 12.50 permitted the jury to find that the shooting was unlawful merely because of defendant's status as a felon. The instruction placed an added burden of retreat on defendant thereby depriving him of a meritorious defense. Moreover, by failing to instruct with CALJIC 5.50, the instructions allowed the jurors to conclude defendant had a duty to run when confronted by the others.id: 18583
A person has a right to use self-defense when confronted with an aggressive dog.Defendant, a retired sheriff's deputy, fired her handgun to scare away two unleashed dogs that she encountered while walking her dog. She was convicted of discharge of a firearm with gross negligence. The trial court erred in refusing to instruct on self-defense since a person has a right to use reasonable self-defense when confronted with an aggressive dog.id: 18718
Updated 2/26/2024The trial court did not err in refusing to instruct on the Home Protection Bill of Rights Presumption where the force was applied on the porch and not within the residence. Defendant was convicted of second degree murder following an incident where he killed a man on the porch outside of his house. He argued the trial court erred by failing to instruct the jury on the Home Protection Bill of Rights under Penal Code section 198.5. That provision describes a presumption of fear when using force in someone’s house. However, it only applies where the resident uses force within the residence. It did not apply where the resident used force against a person on the porch outside of the house.id: 27488
Updated 2/23/2024Displays of deadly force are an unreasonable means of defending property where there is no home invasion or threat of death or serious harm. Defendant’s neighbors were attempting to replace a fence between their properties when he brandished and threatened them with a shotgun. He was convicted of a misdemeanor brandishing charge. He argued the trial court erred by excluding evidence showing the neighbors had failed to comply with homeowner association rules, and that would have shown he acted reasonably in defending his property. However, whether or not the neighbors complied with the applicable civil rules or statutes, the law did not entitle defendant to brandish a shotgun to protest against the removal of the fence.id: 26895
Updated 2/3/2024A mere robbery, without more, does not give rise to the right of self-defense with deadly force. Defendant was convicted of murder in a stabbing incident outside of a bus station. He argued the trial court erred by failing to instruct on lawful self-defense based on his belief that he was in imminent danger of being robbed. However, robbery does not give rise to the right of self-defense with deadly force. id: 27519
Updated 2/3/2024The trial court did not err in refusing to instruct on the Home Protection Bill of Rights resumption where the force was applied on the porch and not within the residence.Defendant was convicted of second degree murder following an incident where he killed a man on the porch outside of his house. He argued the trial court erred by failing to instruct the jury on the Home Protection Bill of Rights under Penal Code section 198.5. That provision describes a presumption of fear when using force in someone’s house. However, it only applies where the resident uses force within the residence. It did not apply where the resident used force against a person on the porch outside of the house.id: 27436
Updated 2/3/2024Instruction on self-defense in attempted murder conduct was sufficient so there was no error in failing to instruct with CALCRIM 3470. Defendant was convicted of aggravated assault. He argued the trial court erred in failing to instruct with CALCRIM No. 3470, which defines self-defense for all nonhomicide offenses. However, the court instructed on self-defense in the context of attempted murder (CALCRIM No. 505), which was a correct statement of the law. Given defendant’s position that he feared his attackers were armed and would hurt him, that instruction was sufficient.id: 27736
The trial court did not err by refusing to instruct regarding the effect of the victim’s prior violent conduct on the issue of reasonableness of defendant’s belief in self-defense where defendant was unaware of the prior conduct.The trial court did not err by refusing to instruct the jury regarding the effect of the victim’s past harmful or threatening conduct on the reasonableness of defendant’s belief in the need for self-defense where there was no evidence that defendant was aware of the victim’s prior conduct. id: 26177
Defendant who commits a felony assault does not reclaim the right of self-defense where his actions are met with a sudden and dangerous counterassault.Defendant argued the trial court erred by failing to instruct the jurors on a person’s ability to reclaim the right to self-defense when an assault is met with a sudden and dangerous counterassault. However, that principle only applies where the defendant initially commits a simple assault, not like here were defendant committed a felony assault.id: 24721
When determining objective reasonableness for self-defense, the inquiry does not include personal attributes that might increase the propensity to misperceive threats of violence.Defendant was convicted of assault with a deadly weapon. He argued there was insufficient evidence to support the jury’s rejection of his theory of self-defense. To justify an act of self-defense, the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him. Contrary to defendant’s claim, the objective inquiry does not adopt the standpoint of a reasonable person with defendant’s background of abuse, mental and physical illness and physical limitations. Instead, the question is whether a person of normal mental and physical capacity would have believed he was in danger of bodily injury under the known circumstances.id: 25634
Evidence of voluntary intoxication is not admissible on the question of whether the defendant believed he needed to act in self-defense. Penal Code section 294 permits evidence of voluntary intoxication on the question of whether the defendant harbored express malice (whether he intended to kill), but not on the question of whether he believed he needed to act in self-defense for purposes of voluntary manslaughter.id: 25629
The fact that defendant was angry, provoked a fight, and later showed consciousness of guilt was sufficient to show he was not acting in self-defense when he punched the victim.Defendant was convicted of corporal injury to a spouse or roommate. He argued the prosecution failed to present sufficient evidence that he was not acting in self-defense when he punched the victim in the face, breaking her nose and causing her to suffer a concussion. However, evidence that defendant was angry, instigated a physical confrontation, and made statements evincing a consciousness of guilt shortly after the incident all support a finding that he was not acting in self-defense when he punched the victim.id: 25329
The trial court properly instructed that self-defense cannot be contrived where defendant was the aggressor who knocked the victim out with a series of punches. Defendant argued the trial court erred by instructing under CALCRIM 3472 that the right of self-defense may not be contrived. However, the instruction is a correct statement of the law and applied here where defendant provoked a conflict, was the aggressor and continued to be the aggressor until the victim responded, at which point defendant knocked her out with a series of punches.id: 24747
The trial court properly refused to instruct on imperfect self-defense where defendant was the initial aggressor and the victim’s actions in running for a gun were legally justified.The trial court did not err in failing to instruct on imperfect self-defense based on the fact that the victim was shot while running for a gun because defendant was the initial aggressor and the victim’s response was legally justified.id: 24648
Evidence that Rocha believed the shooting victims were gang members was irrelevant since Rocha never communicated this belief to defendant.Defendant argued the trial court erred by excluding testimony that Rocha believed the men in the other car were gang members, which would have supported his claim that the shooting was done in self-defense. However, there was no evidence that Rocha communicated this to defendant or defendant otherwise knew the occupants of the other car were gang members, and therefore the evidence was irrelevant.id: 24625
The trial court did not err by refusing to instruct that even gang members have the right to self-defense. The trial court did not err by refusing to instruct that even gang members may have the right to act in self-defense. The instructions the court gave left no doubt that self defense applies equally to all persons. id: 24238
Evidence did not establish self-defense as a matter of law where defendant sat in the driver’s seat with a gun and smiled as the victim approached the car with a gun. Defendant argued reversal of the murder convictions was necessary because evidence established self-defense as a matter of law. While the evidence showed the victim held a gun while he approached defendant’s car, there was also testimony that defendant held a gun and sat smiling as the victim approached suggesting he did not thereafter act out of fear alone. It was for the jury to decide whether defendant acted out of fear alone.id: 24237
The trial court did not have a sua sponte duty to define “mutual combat.” Defendant argued that when giving the self-defense instructions, the trial court erred by failing to define “mutual combat.” However, the court had no sua sponte duty to so instruct and if defendant wanted the definition he had an obligation to request clarifying language.id: 24240
The trial court did not err by refusing to instruct on imperfect self-defense where the only relevant evidence would have shown defendant’s fear to be reasonable. The trial court did not err by refusing to instruct on imperfect self-defense where the evidence that defendant shot an armed gang member suggested only that defendant’s fear was reasonable. In rejecting self-defense, the jury must have concluded that defendant did not act only because of his fear.id: 24239
Claimed flaw in CALCRIM self-defense instruction regarding the intent to withdraw from the fight was irrelevant where the evidence did not show the victim acted with such deadly force that the defendant could not withdraw.The language in CALCRIM 3471 absent from analogous CALJIC 5.56 allowing the use of deadly force in self-defense without withdrawing from the fight only if "the defendant started the fight using nondeadly force" did not violate defendant's rights to due process, confrontation and proof beyond a reasonable doubt. The evidence showing the victim threw a beer bottle at defendant did not constitute such "sudden and deadly force" that defendant could not withdraw from the fight.id: 19658
The trial court did not err in failing to instruct on the shooting from a motor vehicle charge.Defendant argued the trial court erred in refusing to instruct on imperfect self-defense as a defense to the charge of shooting from a vehicle pursuant to Penal Code section 26100. However, the defense does not apply to the malicious discharge of a firearm from a motor vehicle. Because the jury was not asked to find defendant harbored "malice aforethought" in his shooting from a vehicle, the instruction would have been inappropriate.id: 23489
The trial court did not err by refusing to instruct on imperfect self-defense on the charge of shooting at an occupied vehicle.The trial court did not err by refusing to instruct on imperfect self-defense on a charge of shooting at an occupied motor vehicle. Imperfect self-defense is limited to the negation of the malice element of murder. It does not apply to the malice element of shooting at an occupied vehicle. id: 23636
The trial court had no sua sponte duty to instruct on imperfect self defense as a defense to shooting from a vehicle.The trial court had no duty to instruct sua sponte that an honest but unreasonable belief in the need for self-defense is a defense to the crime of shooting from a vehicle. id: 23124
Evidence supported the instruction that neither perfect nor imperfect self-defense was available by a defendant whose wrongful conduct caused the victim to attack.Defendant argued the facts did not support the instruction that perfect and imperfect self-defense cannot be invoked by a defendant whose wrongful conduct created the circumstances under which the adversary’s attack was legally justified. But defendant attacked Hernandez as he tried to shield Gobert. He could claim neither perfect nor imperfect self-defense in shooting Gobert. Once he shot Hernandez, Gobert would reasonably believe he would be shot next.id: 22587
The trial court did not err by failing to instruct on imperfect self-defense where there was evidence of past abuse but not of defendant’s fear of imminent harm. While the evidence established past abuse by the victim, and a fear of future abuse, it did not establish imminence or that defendant believed harm was imminent. The trial court therefore did not err by failing to instruct on the imperfect self-defense or imperfect defense of others.id: 22347
Mutual combat instruction was proper where gunfight in cars followed an earlier confrontation and defendant invited someone to participate.The trial court did not err by instructing the jury on mutual combat where Flores followed defendant’s car because of an earlier confrontation, gunfire was exchanged, and defendant had arranged for Martinez to come and engage in a shootout with the other car. This fact also supported the instruction on compelling another person to commit a crime - which does not require that the other person be an innocent conduit. id: 22441
The trial court had no sua sponte duty to instruct on imperfect self-defense where the threats to defendant were real and his fear was not unreasonable.The evidence did not support an imperfect self-defense instruction where defendant shot at the Sentra after that car followed his car with its occupants yelling gang threats, attempted to block his car, and one of the occupants of the Sentra started to open the door with a black object in his hand. The evidence showed defendant had an actual fear of death or bodily injury, but not that his fear was unreasonable. And contrary to defendant’s claim, a trial court need not instruct on imperfect self defense every time it instructs on perfect self-defense.id: 22440
CALCRIM instructions properly describe the imminence requirement for imperfect self-defense.Defendant argued the CALCRIM instructions (505 and 571) do not correctly set out the imminence requirement for imperfect self-defense. The instructions say there can be no self-defense against a threat of future harm, and defendant argued imminent peril is one that lies in the immediate future. However, it is not reasonably likely the jurors understood the instructions to foreclose the application of the theory of imperfect self-defense.id: 22445
The trial court did not err by failing to specify that the sudden escalation concept applied to imperfect self-defense.Defendant argued that the imperfect self-defense instruction given by the court erroneously failed to describe the sudden escalation concept - the right of an original aggressor to use deadly force if his opponent responded to nondeadly force with sudden and deadly force. However, escalation did not apply factually where defendant admitted things had cooled down and defendant’s accomplice then escalated things. Even if the opponent did escalate things, defendant did not show that the escalation exception applies to imperfect self defense.id: 22216
The CALCRIM instruction on imperfect self-defense relating to attempted voluntary manslaughter incorrectly required both the belief in imminent danger and the need for deadly force must be unreasonable.CALCRIM No. 571 on imperfect self-defense relating to an actual killing (voluntary manslaughter) is inconsistent with CALCRIM No. 604 on imperfect self-defense relating to attempted voluntary manslaughter in that the former tells the jury the defense applies if either of defendant’s two beliefs (imminent danger and need to defend) was unreasonable while the latter says it exists if both beliefs were unreasonable. The former is correct and the unreasonableness of either belief would be sufficient to transform perfect self-defense into imperfect self-defense. However, the erroneous instruction on attempted voluntary manslaughter was not prejudicial to defendant who was convicted of attempted murder.id: 21367
The trial court reasonably found the jury should be instructed on perfect self-defense so that it could best understand the defense of unreasonable self-defense. The defense theory at trial was that defendant killed the victim in unreasonable self-defense, seeking a voluntary manslaughter conviction. He argued the trial court erred in instructing on the complete defense of self-defense in addition to unreasonable self-defense. However, the court reasonably concluded that instructing the jury on perfect self-defense would help it understand fully the law of imperfect self-defense.id: 20286
Unreasonable self-defense did not apply where the defendant burglarized the victim's hotel room thereby creating the circumstances which justified the victim's lawful physical resistance.Defendant was convicted of aggravated mayhem. He argued the trial court erred in failing to instruct on unreasonable self-defense. However, defendant burglarized the victim's hotel room while the victim was asleep, so he created the circumstances that justified the victim's lawful physical resistance. Moreover, the unreasonable self-defense theory does not apply to aggravated mayhem.id: 20255
The trial court did not err in precluding evidence of mental illness on the "reasonable person" standard in support of self-defense.Defendant argued the trial court erred in not admitting evidence of his mental illness in the guilt phase for purposes of establishing the "reasonable person" standard in support of his defense of self-defense. He claimed the evidence was relevant to establish a "reasonable person" in this case was a person in defendant's condition and the court's ruling denied him the right to present a defense. However, the law does not take account of a person's mental capacity when determining whether he has acted as a reasonable person. The trial court correctly denied defense counsel's efforts to define the reasonable person as a mentally ill person hearing voices.id: 17927
Evidence of a witness's reputation for violence was not relevant to the self-defense claim where defendant did not know of the reputation. The trial court did not err in precluding the defense from admitting into evidence statements contained in a search warrant
affidavit pertaining to a prosecution witness's possession of explosives. Defendant argued the evidence was relevant to his claim of self-defense. However, defendant presented no evidence
that he knew of the witness's reputation for violence, so the evidence was not relevant.id: 19823
Imperfect self-defense instruction was not required where defendant, an armed deputy sheriff, shot a 15 year-old girl who pointed a finger at him.The evidence was insufficient to support an instruction on the imperfect self-defense theory where the psychiatric testimony showed defendant feared more for his emotional survival than his physical survival. Defendant was an armed deputy sheriff and could not have honestly feared death or great bodily harm from a 15 year-old girl pointing a finger at him.id: 19226
The trial court did not err by refusing to instruct that the honest but unreasonable belief in the need for self-defense negated the malice necessary for aggravated mayhem. The trial court did not err by refusing to instruct on imperfect self-defense as to aggravated mayhem or the lesser included offense of simple mayhem. However, because the malice element of mayhem is different from the malice element of murder, the imperfect self-defense theory may not apply to mayhem. Assuming it did apply, the failure to so instruct was harmless in light of the other instructions given and the jury's findings.id: 18885
Imperfect self-defense cannot be based on delusion alone.Contrary to defendant's claim, imperfect self-defense cannot be based on delusion alone, and therefore, the trial court did not err in rejecting his request to modify CALJIC 8.73.1.id: 18891
Evidence that defendant may have harbored some fear of future harm did not justify an instruction on imperfect self-defense.Although defendant had heard some threats that the victim wanted to kill him, defendant never saw the victim armed, never said he believed the victim was armed and never indicated he felt an imminent threat of death or great bodily injury when he drew the firearm from his waistband. While the evidence showed defendant may have harbored some fear of future harm, there was no indication that he had an actual belief in the need for self-defense. The trial court properly refused to instruct on imperfect self-defense.id: 18842
Even though the court instructed on imperfect self-defense, it did not err in refusing to instruct on perfect self-defense where the evidence showed defendant sought out the officers and began shooting.Defendant argued the trial court erred by refusing to instruct on perfect self-defense. The evidence was insufficient to support the instruction where it showed defendant sought out the officers with the intent of instigating a shootout. After seeing the officers, he went off to obtain a gun, returned to the scene, left his car and fired three shots at the officers. Moreover, defendant did not testify as to any apprehension of danger he may have felt. Finally, the fact that the court instructed on imperfect self-defense did not require instructions on pure self-defense.id: 18712
Court did not consider the issue of whether to extend the Flannel doctrine to a case where defendant was hallucinating but there was no threat since the substance of the testimony defendant sought to admit was introduced by the defense expert.The court granted review to determine whether to extend the doctrine of imperfect self-defense to a case in which the defendant's actual, though unreasonable, belief in the need to defend himself was based on delusions and/or hallucinations resulting from mental illness or voluntary intoxication, without any objective circumstances suggestive of a threat. However, the court did not reach the issue because defendant was able to claim imperfect self-defense, the jury heard evidence supporting the defense, and the trial court's exclusion of additional evidence supporting the defense was not prejudicial.id: 18564
The Flannel defense does not apply to mayhem. Defendant argued the trial court should have instructed the jury that it was a partial defense to the mayhem charge if defendant acted under a genuine but unreasonable belief in the need to defend himself. However, a belief in the necessity for self-defense does not negate an intent to vex, injure or annoy. The Flannel defense has no application to a charge of mayhem.id: 17978
CALJIC No. 5.54 does not suggest a defendant need verbally inform his opponent he has stopped fighting in order to reinstate his right of self-defense.Defendant argued the trial court incorrectly instructed the jury on the law of self-defense by using the standard version of CALJIC No. 5.54. He claimed the instruction is misleading because it suggests defendant must verbally inform his opponent he had stopped fighting in order to reinstate his right to self-defense. However, it is not reasonably likely the jurors understood CALJIC 5.54 to require that defendant communicate verbally that he wanted to and had stopped fighting.id: 17657
Instructions that an original aggressor need "clearly inform" his adversary of intent to withdraw to claim self-defense was ambiguous.The trial court erred by instructing the jury that an original aggressor or mutual combatant must "clearly inform" an adversary of his or her withdrawal in order to claim self-defense. There was at least a reasonable likelihood that the jurors would have misunderstood the instruction to mean that an act of withdrawal itself, no matter how obvious and unequivocal, would be insufficient. However, the error was harmless because there was no evidence that defendant attempted to withdraw before the assault.id: 17540
Court had no sua sponte duty to instruct on the victim's antecedent assaults following instructions on the general principles of self-defense. Defendant argued the trial court had a sua sponte duty to instruct on the effect of the victim's antecedent assaults on the
reasonableness of his conduct. However, while a defendant is entitled to such an instruction in a proper case, a timely request for the instruction is necessary. The court fully instructed on the general principles of self-defense. Instructing on antecedent assaults is analogous to a clarifying
instruction and the court was not required to instruct on the issue absent a request.id: 17443
Court properly instructed on the defense of dwelling where the question for the jury involved the victim's right to use force in response to defendant's actions.The trial court did not err by instructing on the defense of dwelling using CALJIC No.s 5.40 and 5.42. The jury was confronted with the question of whether defendant's use of deadly force was justified as he confronted the victim on the victim's porch, and whether defendant's unlawful conduct created the circumstance which justified the victim's use of force. The instructions correctly state the law. Moreover, contrary to defendant's claim, there was ample evidence that defendant attempted a forcible entry of the victim's house by trying to open the security door.id: 16945
The court did not err in failing to instruct on imperfect self-defense in relation to the charge of discharging a firearm at an inhabited dwelling.Defendant argued the trial court erred in failing to instruct the jury that the self-defense instructions read in relation to the murder charge also applied to the charge of discharging a firearm at an inhabited dwelling under Penal Code section 246. However, any error in failing to so instruct was harmless where the jury otherwise rejected the claim of self-defense, selecting voluntary manslaughter based on imperfect self-defense instead. Moreover, there was no duty to instruct on imperfect self-defense with respect to the section 246 charge because there was no authority suggesting the concept applied in a prosecution charging a violation of section 246.id: 16947
Section 12022.53 enhancement applied where the shooting at an inhabited dwelling was done in imperfect self-defense.Defendant was convicted of voluntary manslaughter based on imperfect self-defense, and discharging a firearm at an inhabited dwelling. He argued the Penal Code section 12022.53 enhancement which attached to both convictions was not applicable to a defendant who discharged a weapon at an inhabited dwelling in imperfect self- defense. However, the statute expressly provides it does not apply in cases of perfect self-defense. If the Legislature did not want it to apply to cases involving imperfect self-defense it would have said so.id: 16948
Court had no sua sponte duty to instruct on new legal doctrines such as the unreasonable defense of others.Defendant argued the trial court erred in failing to instruct, sua sponte on the doctrine of the unreasonable defense of others. However, the doctrine of unreasonable defense of others, in contrast to the doctrine of unreasonable self-defense, is not well established in the law. The courts have no sua sponte duty to instruct on doctrines that have not been established by authority.id: 16906
CALJIC 9.35.1, when considered with the other instructions and arguments did not limit the application of Battered Women's Syndrome evidence to perfect self-defense.Defendant was convicted of murder. She argued the instruction given to the jury on Battered Women's Syndrome - CALJIC 9.35.1 - allowed the jury to consider syndrome evidence on the question of self-defense but precluded the jury from considering the syndrome on the question of unreasonable self-defense. A portion of the instruction is confusing when read in isolation. However, when read in conjunction with the entire instruction, and with the other instructions, and when combined with the arguments of counsel, the potential for confusion was dissipated.id: 16778
Evidence did not establish self-defense as a matter of law where the victim, known to be nonviolent, barged into the trailer drunk and verbally abusive and ended up shot as he lunged toward defendant's gun.Defendant was convicted of voluntary manslaughter. He argued the evidence established self-defense as a matter of law. Although the victim barged into the trailer against Corey's wishes, and was drunk and verbally abusive, there was no harm or threat to harm Corey or defendant, both of whom knew the victim to be nonviolent. A jury could certainly conclude defendant had no need to pull the gun and acted unreasonably in doing so.id: 16075
Instruction on reasonableness of force by a resident against an intruder was not required where there was no evidence that defendant was a resident.Defendant argued the trial court erred in failing to instruct the jury pursuant to Penal Code section 198.5, that the use of deadly force by a resident against an intruder is presumed to be reasonable. However, the instruction was not required where there was no evidence that defendant was a resident of the mobile home where the shooting took place.id: 16076
The trial court properly excluded the testimony of a proposed expert witness regarding self-defense in the Hispanic culture.Defendant was convicted of second degree murder after stabbing a reckless driver in an incident which began with "road rage." Defense counsel attempted to introduce for purposes of self-defense expert testimony on the sociology of poverty, and the role of honor, paternalism, and street fighters in the Hispanic culture. However, the court properly denied the evidence which was irrelevant to 1) whether defendant actually believed he was in imminent danger of death or great bodily injury; and 2) whether such a belief was objectively reasonable.id: 16040
Because malice is irrelevant in first and second degree felony-murder prosecutions a claim of imperfect self-defense, offered to negate malice, is likewise irrelevant.Defendants argued the trial court erred in precluding them from asserting a claim of imperfect self-defense to the prosecution's second degree felony-murder theory of liability. Defendants claimed they fired at the automobile because they believed its occupants were about to shot at the house and that this was a valid defense to second degree felony murder. However, the claim of imperfect self-defense is irrelevant to the charge of second-degree felony murder.id: 15450
Defense of imperfect self-defense was not available to defendant who created the situation (by trespassing) which justified the victim's use of force.Defendant was convicted of second degree murder of a 79 year-old woman. The killing occurred in the victim's home. Defendant argued imperfect self-defense at trial. On appeal he claimed that the victim was not entitled to respond to mere trespass with deadly force. However, under Penal Code section 197.5, this is no longer true and use of a deadly force by a homeowner is presumed to be in response to a reasonable fear of imminent deadly danger. The defense of imperfect self-defense was not available and malice was not negated since the defendant created the situation which justified the use of force. The instructions given were correct statements of law.id: 15043
Failure to instruct that defendant had a reasonable fear of death was not erroneous where the jury was made aware of the principle through other instructions.Defendant was convicted of involuntary manslaughter for shooting a man in his house. The trial court did not have a sua sponte duty to instruct on the presumption contained in Penal Code section 198.5 that defendant had a reasonable fear of death or great bodily injury where the jury was made aware of that principle through other instructions. Moreover, since the jury was instructed on the relevant principles, counsel was not incompetent in failing to request an instruction under section 198.5.id: 13174
Flannel has no application to an enhancement alleged in the information.Appellant was convicted of assault and the jury found true the great bodily injury enhancement pursuant to Penal Code section 12022.7. He argued that a <i>People v. Flannel</i>, (1979) 25 Cal.3d 668, instruction (honest but unreasonable need to defend oneself) must be given sua sponte, as to an enhancement where there is evidence of self-defense and the defense is reliant upon that theory. However, <i>Flannel</i> has no application to an enhancement alleged in the information.id: 13175
Honest-But-Unreasonable belief instruction was not required where there was no evidence the defendant believed it was necessary to shoot the victims to save his wife.The evidence suggested the shootings were motiviated by defendant's belief that the victims were holding defendant's wife in a closet. However, there was no evidence that he believed it was necessary to shoot the victims in order to save his wife. Therefore, the court did not err in refusing to instruct with CALJIC 5.17 which would have informed the jury that murder would be reduced to manslaughter if the defendant honestly but unreasonably believed the killings were necessary to rpevent imminent great bodily injury to his wife.id: 13176
Imperfect self-defense does not apply to accidental shootings.Defendant was convicted of murder. He argued the trial court erred in refusing to instruct on imperfect self-defense. However, imperfect self-defense was inapplicable because it only applies to a volitional shooting and the defendant in the instant case testified that the gun went off accidentally.id: 13177
Imperfect self-defense instruction applies the subjective standard to the defendant's belief in the necessity to defend against imminent peril.The trial court instructed on defendant's theory of imperfect self-defense with CALJIC 5.17. Defendant argued that while CALJIC 5.17 adequately states a subjective standard to gauge a defendant's assessment of the need to defend, the instruction is ambiguous on whether the defendant's belief in imminent peril is to be judged on a subjective or objective standard. However, the instruction applies the subjective standard language to the defendant's belief in the necessity to defend against imminent peril as well as the need to defend with deadly force.id: 13178
Trial court did not err in refusing to instruct on imperfect self-defense where it was not supported in the record.Because a trial court instructs a jury on self-defense does not necessarily mean it has a sua sponte duty to also instruct on imperfect self-defense.id: 13181
Unreasonable self-defense instruction is not required at the penalty phase of a capital trial.Trial court does not have a constitutional duty to instruct <i>sua sponte</i> on unreasonable self-defense at the penalty phase of a capital trial.id: 13182
A battered woman is not in imminent danger while the batterer is sleeping.A battered woman killed her husband while he slept after he had beaten her and threatened serious bodily harm and death when he awoke. The settled law in California requires an honest belief that the killer is in imminent danger of death or great bodily injury from the victim for both perfect and imperfect self-defense. Given the court's definition of imminence the defendant was not entitled to an instruction on reasonable self-defense under the circumstances.id: 13162
Court did not err in failing to give clarifying instructions on the unreasonable belief in the necessity to defend oneself.Appellant argued the trial court erred in failing to instruct sua sponte under CALJIC 5.17, which defines an honest but unreasonable belief in the necessity to defend oneself. However, the instructions were sufficient as the court gave CALJIC nos. 8.40 and 8.50, both of which told the jurors there is no malice aforethought if the killing occurred in the honest but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury. No further clarification was required sua sponte.id: 13163
Court did not err in failing to instruct on imperfect self-defense where defendant fired shots at men who were walking away.Defendant was convicted of second degree murder. The trial court did not err in failing to instruct sua sponte on the theory of imperfect self-defense, reducing an intentional killing from murder to manslaughter. Defendant initiated an attack on the victim without provocation. When the victim fled, defendant pursued him, firing his weapon. Several witnesses then attempted to disarm defendant. They searched defendant but found no gun and released him. While the men walked away defendant immediately pulled out his gun and fired it at them and one shot hit and killed a victim. There was no substantial evidence that defendant, honestly believed he was in imminent peril and the court properly omitted the imperfect self-defense instruction.id: 13164
Court did not err in failing to define "forcible and atrocious" from CALJIC 5.10 where that instruction was mere surplusage and jurors were fully instructed on self-defense.The court delivered self-defense instructions including CALJIC 5.10 - Resisting Attempt to Commit Felony. The instruction used the terms "forcible and atrocious crime." Defendant argued it was prejudicial error to omit CALJIC 5.16 which defined these terms. However, the multiple self-defense instructions fully informed the jury about both self-defense and unreasonable self-defense. CALJIC 5.10 was surplusage and should not have been given. If defendant wanted certain terms clarified he had a duty to request the clarification.id: 13165
Court had no duty to instruct on the defense of habitation where there was no evidence that defendant's belief that a trespass was about to occur was reasonable.Defendant was convicted of murder and argued the trial court erred in refusing to instruct on the defense of habitation. The defense, unlike self-defense, is not inconsistent with an accidental shooting. However, the defense only applies if the defendant's belief that a trespass is occurring or about to occur is reasonable. Defendant was not entitled to the benefit of this presumption where there was no actual entry. Because there was no evidence a reasonable person in defendant's position would have believed the victim was about to break in, the trial court had no duty to instruct on the defense of habitation.id: 13167
Court was not required to instruct on self-defense as a basis for concluding that defendant's act of brandishing was lawful or that the resulting homicide was excusable.The court gave defendant's requested instruction on excusable homicide using the misdemeanor <197> manslaughter rule and the misdemeanor of brandishing a firearm. He argued the court had a sua sponte duty to instruct on self-defense so the jury could evaluate whether his brandishing was lawful. However, defendant's claimed belief that the victim was about to break in and attack him was unreasonable as the victim simply knocked on the door once. Thus, the trial court was not required to instruct on self-defense as a basis for concluding either that defendant's brandishing was lawful or that the resulting homicide was excusable.id: 13168
Defendant was not entitled to an instruction regarding a forcible entry by an intruder into his residence where the unlawful intrusion was upon his open front porch.Defendant was convicted of assault with a deadly weapon. He argued the court erred in denying his requested instruction pursuant to Penal Code section 198.5 ("Home Protection Bill of Rights") that a residential occupant has a reasonable fear of death or great bodily injury when he or she uses deadly force against an unlawful and forcible intruder into the residence. Although there was evidence that the victim's entry onto defendant's front porch was unlawful and forcible, an entry onto a porch like this (unenclosed porch without signs or gates) does not constitute entry into a residence as required in section 198.5.id: 13169
Defendant's testimony that the gun went off accidentally barred reliance on self-defense not only as a defense but also to negate implied malice.Defendant was convicted of murder. Notwithstanding his testimony that the murder weapon discharged accidentally, he argued the court erred in rejecting self-defense instructions because there was evidence that the homicide occurred by accident while he was <U>armed</U> in traditional self-defense. He claimed this fact would negate implied malice. However, defendant's claim that the gun went off accidentally bars him from relying on traditional self-defense not only as a defense, but also to negate implied malice.id: 13170
Error in not allowing Battered Women Syndrome testimony was harmless where it was improbable that such testimony would convince the jury that defendant actually perceived an imminent danger.An expert opinion that defendant acted reasonably in self-defense is not relevant to the reasonableness requirement for perfect self-defense. Nevertheless, it was erroneous not to permit an expert to testify as to Battered Women Syndrome where the testimony was not used to show defendant had been battered, but rather, to prove she genuinely perceived imminent danger and a need to kill the victim. The error was harmless where there was nothing in the victim's behavior indicating the existence of imminent danger and it was not reasonably probable the Battered Women Syndrome testimony would convince the jury that defendant honestly perceived an imminent danger resulting from the verdict.id: 13171
The trial court has no sua sponte duty to instruct on the doctrine of imperfect self-defense in relation to the crime of torture.Defendant was convicted of attempted murder, aggravated mayhem and torture. He argued the trial court improperly limited the doctrine of imperfect self-defense to the charges of attempted murder and aggravated mayhem. However, the law is unsettled as to the relationship of the doctrine of imperfect self-defense to the crime of torture and the court had no sua sponte duty to instruct on the issue.id: 9714
Trial court did not err in failing to instruct on imperfect self-defense to negate the malice required for a mayhem conviction.The trial court did not err in failing to instruct sua sponte that an honest but unreasonable belief in the need for self-defense negated the malice required for a mayhem conviction. Unlike the situation in <i>People v. Flannel</i> (1979) 25 Cal.3d 668, where the imperfect self-defense rule was developed to address the requirement of malice aforethought, mayhem involves a different requisite mental state and has no statutory history recognizing a malice aforethought element or the availability of a <i>Flannel</i> defense.id: 9715
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245