Self-defense

‘’People v. Elmore’’ (2014) 59 Cal.4th 121

People v. Jones (1961) 191 Cal.App.2d 478

self-defense vs accident

In California, self-defense and accidental homicide are mutually exclusive, and a defendant who claims to have killed by accident while defending himself or herself is not entitled to instructions on self-defense. (People v. Cutis (1994) 30 Cal.App.4th 1337.)

“When a defendant draws a weapon in self-defense, but fires accidentally, the shooting itself is not considered self-defense. Instead, it is an accident.” (People v. Villanueva (2008) 169 Cal.App.4th 41.)

CALCRIM 3404 is instruction on accident

Home Defense

A person may have a presumption of lawful use of force in self-defense if all four of the following are present:

1. "There must be an unlawful and forcible entry into a residence;" (People v. Brown (1992) 6 Cal.App.4th 1489, 1494.)

2. "the entry must be by someone who is not a member of the family or the household;" (People v. Brown (1992) 6 Cal.App.4th 1489, 1494.)

3. "the residential occupant must have used “deadly” force . . . against the victim within the residence;" (People v. Brown (1992) 6 Cal.App.4th 1489, 1494-1495.)

4. "the residential occupant must have had knowledge of the unlawful and forcible entry." (People v. Brown (1992) 6 Cal.App.4th 1489, 1495.)

People v. Owen (1991) 226 Cal.App.3d 996, 1003, 1005, 277 Cal.Rptr. 341.

The presumption applies inside the home. "[A]n entry onto an unenclosed front porch (a porch that has no access barriers from a public sidewalk)" is not "an entry into a residence," so in those circumstances, the PC198.5 jury instruction was not appropriate. (People v. Brown (1992) 6 Cal.App.4th 1489, 1495.) In Brown, the defendant was in his doorway and shot a man on his front porch. For purposes of PC198.5, "residence" is going to be decided by the test in People v. Nible (1988) 200 Cal.App.3d 838 about if "the nature of a structure's composition is such that a reasonable person would expect some protection from unauthorized intrusions." (People v. Brown (1992) 6 Cal.App.4th 1489, 1496.)

Forcible entry is defined under Code of Civil Procedure section 1159, so "section 198.5 applies only to a part of the residence to which entry had been gained '[b]y breaking open doors, windows, or other parts' or 'by any kind of violence or circumstance of terror....'") (People v. Brown (1992) 6 Cal.App.4th 1489, 1500 (conc. opn. of Blease J.).)

If outside the home, (See People v. Gleghorn (1987) 193 Cal.App.3d 196, 202–204, 238 Cal.Rptr. 82.)

Penal Code section 198.5

Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.

As used in this section, great bodily injury means a significant or substantial physical injury.

(Added by Stats. 1984, Ch. 1666, Sec. 1.)

https://clerk.assembly.ca.gov/sites/clerk.assembly.ca.gov/files/archive/Statutes/1984/84Vol3.PDF#page=1666

Chapter 1666

An act to add section 198.5 to the Penal Code, relating to the self-defense.

[Approved by Governor September 30, 1984. Filed with Secretary of State September 30, 1984.]

Section 1. Section 198.5 is added to the Penal Code, to read:

Section 2. This act shall be known and may be cited as the Home Protection Bill of Rights.

Legislative Counsel's Digest of SB1666 (SB1134, Richardson) https://clerk.assembly.ca.gov/sites/clerk.assembly.ca.gov/files/archive/Statutes/1984/84Vol4_Summary.pdf#page=627

Existing law provides that homicide is justified when committed in defense of habitation, property, or person against one who manifestly intends and endeavors in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein, or when committed in lawful defense of the person or of a spouse, parent, or child where there is reasonable ground to apprehend a design to do some great bodily injury and imminent danger of the design being accomplished. Resistance sufficient to prevent the offense may lawfully be made by the person about to be injured to prevent an offense against his person, or his family or a member thereof, or to prevent an illegal attempt by force to take or injure property in his lawful possession

This bill would provide that any person using force intended or likely to cause death or great bodily injury shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the person's residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.

In re M.C. (2020) 58 Cal.App.5th 1138, review denied and opn. ordered nonpub. Apr. 14, 2021,

Notes of Decision

1.Construction and application  Under the California Home Protection Bill of Rights, creating a rebuttable presumption that a homeowner acts reasonably when he or she uses force against a person who “unlawfully and forcibly” enters his or her home, the “unlawful and forcible entry into a residence” requirement is evaluated based on what a reasonable person in homeowner's position would have believed.  Duran v. City of Maywood, C.A.9 (Cal.)2000, 221 F.3d 1127.  Assault And Battery Key Number 183

Using or threatening deadly force is presumptively acceptable in a home invasion situation covered by criminal statute, and may be acceptable when another serious crime is being committed, depending upon the facts.  People v. Yi Chih Chen (App. 4 Dist. 2020) 264 Cal.Rptr.3d 570.  Weapons Key Number 199

For statute providing that use of deadly force by homeowner within his residence against an intruder is presumed to be in response to a reasonable fear of imminent deadly danger to apply, four elements must be met: (1) there must be an unlawful and forcible entry into a residence, (2) entry must be by someone who is not a member of the family or the household, (3) residential occupant must have used “deadly” force against the victim within the residence, and, (4) the residential occupant must have had knowledge of the unlawful and forcible entry.  People v. Hardin (App. 1 Dist. 2000) 102 Cal.Rptr.2d 262, 85 Cal.App.4th 625, review denied.  Homicide Key Number 942

This section applied to incident in which defendant was confronted in his home by acquaintance;  section does not require intruder to be stranger to resident, but only requires that intruder be nonmember of family or household who unlawfully or forcefully enters residence.  People v. Owen (App. 5 Dist. 1991) 277 Cal.Rptr. 341, 226 Cal.App.3d 996, review denied.  Homicide Key Number 760

2.Purpose  Statute providing that a person using force within his or her residence against a person who forcibly entered the residence shall be presumed to have held a reasonable fear of injury to self or another member of the household was intended to give residential occupants additional protection in situations where they are confronted in their own homes by unlawful intruders such as burglars.  People v. Grays (App. 1 Dist. 2016) 202 Cal.Rptr.3d 288, 246 Cal.App.4th 679, review filed, review denied, certiorari denied 137 S.Ct. 1073, 197 L.Ed.2d 190.  Homicide Key Number 751

This section was enacted to permit residential occupants to defend themselves from intruders without fear of legal repercussions and to give benefit of doubt in such cases to resident by establishing presumption that very act of forcible entry entails threat to life and limb of homeowner.  People v. Owen (App. 5 Dist. 1991) 277 Cal.Rptr. 341, 226 Cal.App.3d 996, review denied.  Homicide Key Number 751

Presumption in this section was implemented to promote public policy and thereby affects burden of proof rather than burden of producing evidence.  People v. Owen (App. 5 Dist. 1991) 277 Cal.Rptr. 341, 226 Cal.App.3d 996, review denied.  Homicide Key Number 751;  Homicide Key Number 920;  Homicide Key Number 942

3.Deadly force  Whether victim acted in proper defense of his dwelling was issue to be considered by the jury, in murder prosecution, when deciding defendant's self-defense claim that his use of deadly force was justified as he confronted victim on front porch of victim's home; if victim had right to use force to defend himself in his home, then defendant had no right of self-defense, imperfect or otherwise.  People v. Watie (App. 3 Dist. 2002) 124 Cal.Rptr.2d 258, 100 Cal.App.4th 866, review denied.  Homicide Key Number 768;  Homicide Key Number 1342

Using butt of loaded revolver to hit assailant on back of head constituted “deadly force” for purposes of application of this section.  People v. Owen (App. 5 Dist. 1991) 277 Cal.Rptr. 341, 226 Cal.App.3d 996, review denied.  Homicide Key Number 760

4.Residence  In § 1983 action arising when officer fatally shot armed man in his driveway, plaintiffs were not entitled to instruction on the California Home Protection Bill of Rights, which creates a rebuttable presumption that a homeowner acts reasonably when he or she uses force against a person who “unlawfully and forcibly” enters his or her home, as a reasonable person in decedent's position would not have believed that the officers had “unlawfully and forcibly” entered his residence, though they did not identify themselves as they walked up the driveway, where they arrived in marked police cars and were wearing police uniforms, and since the act of walking up a person's driveway cannot reasonably be interpreted as forcibly entering a residence.  Duran v. City of Maywood, C.A.9 (Cal.)2000, 221 F.3d 1127.  Civil Rights Key Number 1437

5.Imperfect self-defense  Defendant's act of arming himself with guns and breaking into victim's home while victim and his wife and young children were present disqualified defendant from relying on the doctrine of imperfect self-defense to reduce murder to voluntary manslaughter, since defendant created circumstances under which victim's act of running to get a gun was legally justified.  People v. Rangel (2016) 200 Cal.Rptr.3d 265, 62 Cal.4th 1192, 367 P.3d 649, rehearing denied, certiorari denied 137 S.Ct. 623, 196 L.Ed.2d 532.  Homicide Key Number 688

The right of a victim to defend himself and his property is a relevant consideration in determining whether a defendant may prevail when he seeks to negate malice aforethought by asserting the affirmative defense of imperfect self-defense.  People v. Watie (App. 3 Dist. 2002) 124 Cal.Rptr.2d 258, 100 Cal.App.4th 866, review denied.  Homicide Key Number 687

Murder defendant was not entitled to invoke doctrine of imperfect self-defense, as victim's use of force against defendant was privileged, but defendant's use of force against victim was not; when defendant unlawfully burst into victim's home, victim was presumptively justified in fearing that his entry entailed threat to her life and safety, and thus she was entitled to use force to evict him, and though defendant had duty to retreat, but victim did not, defendant made no effort to retreat, despite opportunity to do so offered by victim when she twice ordered him to leave.  People v. Hardin (App. 1 Dist. 2000) 102 Cal.Rptr.2d 262, 85 Cal.App.4th 625, review denied.  Homicide Key Number 688

6.Presumptions and burden of proof  This section creates rebuttable presumption that defendant had reasonable fear of death or great bodily injury when he used deadly force against victim.  People v. Owen (App. 5 Dist. 1991) 277 Cal.Rptr. 341, 226 Cal.App.3d 996, review denied.  Homicide Key Number 920

This section creates presumption which imposes upon State burden of proving beyond a reasonable doubt that defendant did not have reasonable fear of imminent peril, death, or injury to himself or others when he killed victim.  People v. Owen (App. 5 Dist. 1991) 277 Cal.Rptr. 341, 226 Cal.App.3d 996, review denied.  Homicide Key Number 920;  Homicide Key Number 1194;  Homicide Key Number 1202

Go to table of contents - Presumptions and burden of proof Go to table of contents 7.Instructions  7.Instructions  Evidence at murder trial was sufficient to support finding that defendant had a reasonable expectation of privacy against unwanted intruders in girlfriend's housing project unit such that the apartment constituted defendant's “residence”, and thus warranted jury instruction that he was entitled to presumption that he held a reasonable fear of injury to self or another member of the household; while apartment was in girlfriend's name, there was evidence defendant had been in the unit for four or five months, paid rent, and had a key to the unit, and that housing authority in fact knew of his presence but had not immediately ejected him, giving him some days or weeks to move.  People v. Grays (App. 1 Dist. 2016) 202 Cal.Rptr.3d 288, 246 Cal.App.4th 679, review filed, review denied, certiorari denied 137 S.Ct. 1073, 197 L.Ed.2d 190.  Homicide Key Number 1489

Court was not required sua sponte to instruct jury in voluntary manslaughter prosecution that use of deadly force by resident is presumed to be reasonable, as defendant was not shown to be resident of dwelling in which killing occurred.  People v. Silvey (App. 4 Dist. 1997) 68 Cal.Rptr.2d 681, 58 Cal.App.4th 1320, review denied.  Criminal Law Key Number 824(4)

Court did not have sua sponte duty to give instruction based on this section in murder prosecution where instructions on law pertinent to facts of case encompassed elements of this section.  People v. Owen (App. 5 Dist. 1991) 277 Cal.Rptr. 341, 226 Cal.App.3d 996, review denied.  Criminal Law Key Number 824(4)

When evidence indicates that defendant's residence has been violated and defendant used force against intruder, if defendant requests it, court should give instruction embodying presumption of this section that defendant had a reasonable fear of death or great bodily injury when he used deadly force against victim;  defendant, upon proper request, has right to instruction that relates reasonable doubt standard for proof of guilt to particular elements of crime charged.  People v. Owen (App. 5 Dist. 1991) 277 Cal.Rptr. 341, 226 Cal.App.3d 996, review denied.  Criminal Law Key Number 778(12);  Criminal Law Key Number 789(4)

Instruction under this section would advise jurors that, if they found that victim was not member of defendant's residence or household, that victim unlawfully and forcibly entered defendant's residence, and that defendant used force intended or likely to cause death or great bodily injury against victims and residents, then, unless prosecution proves beyond reasonable doubt that defendant did not hold such fear at such time, jury must find defendant had reasonable fear of imminent peril of death or great bodily injury to himself or to member of his family or of his household at time he used such force.  People v. Owen (App. 5 Dist. 1991) 277 Cal.Rptr. 341, 226 Cal.App.3d 996, review denied.  Criminal Law Key Number 778(12)

Because defendant received benefit of presumption in this section by reason of other instructions given to jury which included legal principles that would have been an included instruction on this section, failure of defense counsel to request instruction based on this section did not prejudice defendant, even assuming that reasonably competent attorney should have requested such instruction, and that failure to request instruction would constitute ineffective assistance.  People v. Owen (App. 5 Dist. 1991) 277 Cal.Rptr. 341, 226 Cal.App.3d 996, review denied.  Criminal Law Key Number 1947

Justifiable homicide: self-defense PC197 PC198 PC198.5

CALJIC 5.42 Resisting an Intruder Upon One's Property A person may defend [his] [her] home or dwelling against anyone who manifestly intends or endeavors in a violent or riotous manner, to enter that home or dwelling and who appears to intend violence to any person in that home or dwelling. The amount of force which the person may use in resisting the trespass is limited by what would appear to a reasonable person, in the same or similar circumstances, necessary to resist the violent or unlawful entry. [He] [She] is not bound to retreat even though a retreat might safely be made. [He] [She] may resist force with force, increasing it in proportion to the intruder's persistence and violence if the circumstances which are apparent to the [homeowner] [lawful occupant] of the property are such as would excite similar fears and a similar belief in a reasonable person. USE NOTE See CALJIC 5.10 for justifiable homicide in resisting attempt to commit a forcible and atrocious crime. See CALJIC 5.44 for presumption of fear of death or great bodily injury. COMMENT Penal Code § 197(2); 1 Witkin and Epstein, Cal. Criminal Law (4th ed. 2012), Defenses § 88. Penal Code § 198.5 creates a rebuttable presumption. However, there is no sua sponte duty to give an instruction based upon this presumption so long as the jury is otherwise adequately instructed on self defense. (People v. Owen, 226 Cal.App.3d 996, 1004–1007, 277 Cal.Rptr. 341, 345–348 (5th Dist.1991).)

Reponsibility for third parties

‘’People v. Gardner’’ (1995) 37 Cal.App.4th 473

‘’People v. Lloyd’’ (

Burden of Proof

’’People v. Thompson’’ (2000) 79 Cal.App.4th 40, 50.

Forcible and Atrocious Crimes

The strict language of Penal Code section 197 would allow lethal use of force defending against any felony. But People v. Ceballos (1974) 12 Cal.3d 470, 478, held that Penal Code section 197 is a codification of common law, and "the rule developed at common law that killing or use of deadly force to prevent a felony was justified only if the offense was a forcible and atrocious crime." (Ibid.) "Examples of forcible and atrocious crimes are murder, mayhem, rape and robbery." (Ibid.) "In such crimes ‘from their atrocity and violence human life (or personal safety from great harm) either is, or is presumed to be, in peril.’" (Ibid.) So there needs to be a fear of death or great bodily injury, in order to use lethal force. (Id. at p. 479.)

Ceballos itself is a trap-gun case, specifically a .22LR pistol, in which the defendant was accused of PC245(a), but the defense was defense against a burglary. The California Supreme Court deemed that deadly force can only justifiably be used to defend against risk of death or great bodily injury. A burglary committed with no one inside the residence presents no risk of death or great bodily injury.

Imminence

In People v. Aris (1989) 215 Cal.App.3d 1178, 1187 [264 Cal.Rptr. 167], overruled on other grounds in People v. Humphrey (1996) 13 Cal.4th 1073, 1089 [56 Cal.Rptr.2d 142, 921 P.2d 1], the jury requested clarification of the term “imminent.” In response, the trial court instructed: “Imminent peril,” as used in these instructions, means that the peril must have existed or appeared to the defendant to have existed at the very time the fatal shot was fired. In other words, the peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with. (Ibid.) The Court of Appeal agreed with this definition of “imminent.” (Id. at pp. 1187–1190 [citing People v. Scoggins (1869) 37 Cal. 676, 683–684].)

Accident

Penal Code § 195(1); People v. Slater, 60 Cal. App. 2d 358, 367–368, 140 P.2d 846 (1st Dist. 1943) (appellant was entitled to have an instruction embodying Penal Code § 195(1) when appellant claimed that homicide was committed by accident and misfortune in lawfully defending her home by lawful means and without unlawful intent). 2 Barber v. Superior Court, 147 Cal. App. 3d 1006, 1010–1012, 195 Cal. Rptr. 484, 47 A.L.R.4th 1 (2d Dist. 1983) (two physicians charged with murder and conspiracy to commit murder after they terminated life support measures of deeply comatose patient in accordance with wishes of patient's immediate family, court held that physicians' conduct was intentional and not matter of accident or misfortune and therefore, not excusable homicide); People v. Mathews, 91 Cal. App. 3d 1018, 1026, 154 Cal. Rptr. 628 (3d Dist. 1979).

Imperfect Self-Defense

Imperfect self-defense is a doctrine in which the defendant has a belief in the need for self-defense, but a reasonable person wouldn't have that belief, so it cannot be legally self-defense and that would cause an acquittal. Instead, if imperfect self-defense is proven, then the malice aforethought element of murder is not proven, but the killing is still unlawful, so the defendant is guilty of voluntary manslaughter.

Imperfect self-defense doesn't apply in a felony murder. People v. Seaton, 26 Cal. 4th 598, 665, 110 Cal. Rptr. 2d 441, 28 P.3d 175 (2001), as modified, (Sept. 26, 2001).

Provocation and imperfect self-defense are two separate reasons why a defendant should be found guilty of voluntary manslaughter and not guilty of murder, and a jury should be instructed on both. People v. Breverman, 19 Cal. 4th 142, 163–164, 77 Cal. Rptr. 2d 870, 960 P.2d 1094 (1998). But if there's evidence of deliberation by the defendant, heat of passion is negated, and so instruction on both heat of passion and imperfect self-defense is not required. People v. Moye, 47 Cal. 4th 537, 555, 98 Cal. Rptr. 3d 113, 213 P.3d 652 (2009).

People v. Blakeley, 23 Cal. 4th 82, 87–89, 96 Cal. Rptr. 2d 451, 999 P.2d 675 (2000); People v. Lasko, 23 Cal. 4th 101, 108, 96 Cal. Rptr. 2d 441, 999 P.2d 666 (2000).

People v. Wickersham, 32 Cal. 3d 307, 309, 185 Cal. Rptr. 436, 650 P.2d 311 (1982) (disapproved of by, People v. Barton, 12 Cal. 4th 186, 47 Cal. Rptr. 2d 569, 906 P.2d 531 (1995)); People v. Flannel, 25 Cal. 3d 668, 684 n.12, 160 Cal. Rptr. 84, 603 P.2d 1 (1979); People v. Uriarte, 223 Cal. App. 3d 192, 272 Cal. Rptr. 693 (4th Dist. 1990); People v. Coad, 181 Cal. App. 3d 1094, 1106, 226 Cal. Rptr. 386 (1st Dist. 1986); see also In re Christian S., 7 Cal. 4th 768, 773, 30 Cal. Rptr. 2d 33, 872 P.2d 574 (1994) (upholding the case of People v. Flannel and stating that imperfect self-defense is a valid defense “when a person had an “actual” but unreasonable belief that great bodily injury was eminent”). See People v. Blakeley, 23 Cal. 4th 82, 87–89, 96 Cal. Rptr. 2d 451, 999 P.2d 675 (2000).

People v. Martinez, 230 Cal. App. 3d 197, 203, 281 Cal. Rptr. 205 (4th Dist. 1991).

People v. Coad, 181 Cal. App. 3d 1094, 1106, 226 Cal. Rptr. 386 (1st Dist. 1986).

People v. Blakeley, 23 Cal. 4th 82, 91–93, 96 Cal. Rptr. 2d 451, 999 P.2d 675 (2000) (defendant who kills in unreasonable self-defense may sometimes be guilty of involuntary manslaughter, but not if the killing took place with conscious disregard for life). See People v. Johnson, 98 Cal. App. 4th 566, 119 Cal. Rptr. 2d 802 (2d Dist. 2002) (for offenses occurring before date of the Blakeley decision—June 2, 2000—jury must be instructed that unintentional killing in unreasonable self-defense is involuntary manslaughter); CALJIC No. 8.40.

People v. Breverman, 19 Cal. 4th 142, 163–164, 77 Cal. Rptr. 2d 870, 960 P.2d 1094 (1998).

People v. Moye, 47 Cal. 4th 537, 555, 98 Cal. Rptr. 3d 113, 213 P.3d 652 (2009).

”In People v. Watie (2002) 100 Cal.App.4th 866, 884 [124 Cal.Rptr.2d 258], the court held, “[t]his subdivision, on its face, exempts lawful (perfect) self-defense from the section’s application. It does not exempt imperfect self-defense.” Further, an instruction informing the jury that the defense of self-defense applies to the enhancement is not necessary. (Id. at p. 886.)

Jury instructions for Self-Defense

CALCRIM 505 (2021)

The defendant is not guilty of (murder/ [or] manslaughter/ attempted murder/ [or] attempted voluntary manslaughter) if (he/she) was justified in (killing/attempting to kill) someone in (self-defense/ [or] defense of another). The defendant acted in lawful (self-defense/ [or] defense of another) if: 1. The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name or description of third party>) was in imminent danger of being killed or suffering great bodily injury [or was in imminent danger of being (raped/maimed/robbed/ <insert other forcible and atrocious crime>)]; 2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; AND 3. The defendant used no more force than was reasonably necessary to defend against that danger. Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of death or great bodily injury to (himself/herself/ [or] someone else). Defendant’s belief must have been reasonable and (he/she) must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the [attempted] killing was not justified. When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed. [The defendant’s belief that (he/she/ [or] someone else) was threatened may be reasonable even if (he/she) relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true.] [If you find that <insert name of decedent/victim> threatened or harmed the defendant [or others] in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable.]

[If you find that the defendant knew that <insert name of decedent/victim> had threatened or harmed others in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable.] [Someone who has been threatened or harmed by a person in the past, is justified in acting more quickly or taking greater self-defense measures against that person.] [If you find that the defendant received a threat from someone else that (he/she) reasonably associated with <insert name of decedent/victim>, you may consider that threat in deciding whether the defendant was justified in acting in (self-defense/ [or] defense of another).] [A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of (death/great bodily injury/ <insert forcible and atrocious crime>) has passed. This is so even if safety could have been achieved by retreating.] [Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.] The People have the burden of proving beyond a reasonable doubt that the [attempted] killing was not justified. If the People have not met this burden, you must find the defendant not guilty of (murder/ [or] manslaughter/ attempted murder/ [or] attempted voluntary manslaughter).

Bench Notes

Instructional Notes The court has a sua sponte duty to instruct on self-defense when “it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.” (People v. Breverman (1998) 19 Cal.4th 142, 157 [77 Cal.Rtpr.2d 870, 960 P.2d 1094] [addressing duty to instruct on voluntary manslaughter as lesser included offense, but also discussing duty to instruct on defenses generally]; see also People v. Lemus (1988) 203 Cal.App.3d 470, 478 [249 Cal.Rptr. 897] [if substantial evidence of self-defense exists, court must instruct sua sponte and let jury decide credibility of witnesses].) If there is substantial evidence of self-defense that is inconsistent with the defendant’s testimony, the court must ascertain whether the defendant wants an instruction on self-defense. (People v. Breverman, supra, 19 Cal.4th at p. 156.) The court is then required to give the instruction if the defendant so requests. (People v. Elize (1999) 71 Cal.App.4th 605, 611–615 [84 Cal.Rptr.2d 35].) On defense request and when supported by sufficient evidence, the court must instruct that the jury may consider the effect of “antecedent threats and assaults against the defendant on the reasonableness of defendant’s conduct.” (People v. Garvin (2003) 110 Cal.App.4th 484, 488 [1 Cal.Rptr.3d 774].) The court must also instruct that the jury may consider previous threats or assaults by the aggressor against someone else or threats received by the defendant from a third party that the defendant reasonably associated with the aggressor. (See People v. Pena (1984) 151 Cal.App.3d 462, 475 [198 Cal.Rptr. 819]; People v. Minifie (1996) 13 Cal.4th 1055, 1065, 1068 [56 Cal.Rptr.2d 133, 920 P.2d 1337].) Forcible and atrocious crimes are generally those crimes whose character and manner reasonably create a fear of death or serious bodily harm. (People v. Ceballos (1974) 12 Cal.3d 470, 479 [116 Cal.Rptr. 233, 526 P.2d 241].) The following crimes have been deemed forcible and atrocious as a matter of law: murder, mayhem, rape, and robbery. (Id. at p. 478.) If the defendant is asserting that he or she was resisting the commission of one of these felonies or another specific felony, the court should include the bracketed language at the end of element 1 and select “raped,” “maimed,” or “robbed,” or insert another appropriate forcible and atrocious crime. In all other cases involving death or great bodily injury, the court should use element 1 without the bracketed language.

Authority • Justifiable Homicide. Pen. Code, §§ 197–199. • Fear. Pen. Code, § 198. • Lawful Resistance. Pen. Code, §§ 692–694. • Burden of Proof. Pen. Code, § 189.5; People v. Banks (1976) 67 Cal.App.3d 379, 383–384 [137 Cal.Rptr. 652]. • Elements. People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [56 Cal.Rptr.2d 142, 921 P.2d 1]. • Forcible and Atrocious Crimes. People v. Ceballos (1974) 12 Cal.3d 470, 478–479 [116 Cal.Rptr. 233, 526 P.2d 241]. • Imminence. People v. Aris (1989) 215 Cal.App.3d 1178, 1187 [264 Cal.Rptr. 167], overruled on other grounds in People v. Humphrey (1996) 13 Cal.4th 1073, 1089 [56 Cal.Rptr.2d 142, 921 P.2d 1]. • No Duty to Retreat. People v. Hughes (1951) 107 Cal.App.2d 487, 493 [237 P.2d 64]; People v. Hatchett (1942) 56 Cal.App.2d 20, 22 [132 P.2d 51]. • Reasonable Belief. People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [56 Cal.Rptr.2d 142, 921 P.2d 1]; People v. Clark (1982) 130 Cal.App.3d 371, 377 [181 Cal.Rptr. 682]. • Must Act Under Influence of Fear Alone. Pen. Code, § 198. • This Instruction Upheld. People v. Lopez (2011) 199 Cal.App.4th 1297, 1306 [132 Cal.Rptr.3d 248]; People v. Genovese (2008) 168 Cal.App.4th 817, 832 [85 Cal.Rptr.3d 664].

Commentary Penal Code section 197, subdivision 1 provides that self-defense may be used in response to threats of death or great bodily injury, or to resist the commission of a felony. (Pen. Code, § 197, subd. 1.) However, in People v. Ceballos (1974) 12 Cal.3d 470, 477–479 [116 Cal.Rptr. 233, 526 P.2d 241], the court held that although the latter part of section 197 appears to apply when a person resists the commission of any felony, it should be read in light of common law principles that require the felony to be “some atrocious crime attempted to be committed by force.” (Id. at p. 478.) This instruction is therefore written to provide that self-defense may be used in response to threats of great bodily injury or death or to resist the commission of forcible and atrocious crimes.

Related Issues Imperfect Self-Defense Most courts hold that an instruction on imperfect self-defense is required in every case in which a court instructs on perfect self-defense. If there is substantial evidence of a defendant’s belief in the need for self-defense, there will always be substantial evidence to support an imperfect self-defense instruction because the reasonableness of that belief will always be at issue. (People v. Ceja (1994) 26 Cal.App.4th 78, 85–86 [31 Cal.Rptr.2d 475], overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 91 [96 Cal.Rptr.2d 451, 999 P.2d 675]; People v. De Leon (1992) 10 Cal.App.4th 815, 824 [12 Cal.Rptr.2d 825].) The court in People v. Rodriguez disagreed, however, and found that an imperfect self-defense instruction was not required sua sponte on the facts of the case where defendant’s version of the crime “could only lead to an acquittal based on justifiable homicide,” and when the prosecutor’s version could only lead to a conviction of first degree murder. (People v. Rodriguez (1992) 53 Cal.App.4th 1250, 1275 [62 Cal.Rptr.2d 345]; see also People v. Williams (1997) 4 Cal.4th 354, 362 [14 Cal.Rptr.2d 441, 841 P.2d 961] [in rape prosecution, no mistake-of-fact instruction was required when two sides gave wholly divergent accounts with no middle ground to support a mistake-of-fact instruction].)

No Defense for Initial Aggressor An aggressor whose victim fights back in self-defense may not invoke the doctrine of self-defense against the victim’s legally justified acts. (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1 [30 Cal.Rptr.2d 33, 872 P.2d 574].) If the aggressor attempts to break off the fight and communicates this to the victim, but the victim continues to attack, the aggressor may use self-defense against the victim to the same extent as if he or she had not been the initial aggressor. (Pen. Code, § 197, subd. 3; People v. Trevino (1988) 200 Cal.App.3d 874, 879 [246 Cal.Rptr. 357]; see CALCRIM No. 3471, Right to Self-Defense: Mutual Combat or Initial Aggressor.) In addition, if the victim responds with a sudden escalation of force, the aggressor may legally defend against the use of force. (People v. Quach (2004) 116 Cal.App.4th 294, 301–302 [10 Cal.Rptr.3d 196]; see CALCRIM No. 3471, Right to Self-Defense: Mutual Combat or Initial Aggressor.)

Transferred Intent Applies “[T]he doctrine of self-defense is available to insulate one from criminal responsibility where his act, justifiably in self-defense, inadvertently results in the injury of an innocent bystander.” (People v. Mathews (1979) 91 Cal.App.3d 1018, 1024 [154 Cal.Rptr. 628]; see also People v. Curtis (1994) 30 Cal.App.4th 1337, 1357 [37 Cal.Rptr.2d 304].) There is no sua sponte duty to instruct on this principle, although such an instruction must be given on request when substantial evidence supports it. (People v. Mathews, supra, 91 Cal.App.3d at p. 1025; see also CALCRIM No. 562, Transferred Intent.) Definition of “Imminent” In People v. Aris (1989) 215 Cal.App.3d 1178, 1187 [264 Cal.Rptr. 167], overruled on other grounds in People v. Humphrey (1996) 13 Cal.4th 1073, 1089 [56 Cal.Rptr.2d 142, 921 P.2d 1], the jury requested clarification of the term “imminent.” In response, the trial court instructed: “Imminent peril,” as used in these instructions, means that the peril must have existed or appeared to the defendant to have existed at the very time the fatal shot was fired. In other words, the peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with. (Ibid.) The Court of Appeal agreed with this definition of “imminent.” (Id. at pp. 1187–1190 [citing People v. Scoggins (1869) 37 Cal. 676, 683–684].) Reasonable Person Standard Not Modified by Evidence of Mental Impairment In People v. Jefferson (2004) 119 Cal.App.4th 508, 519 [14 Cal.Rptr.3d 473], the court rejected the argument that the reasonable person standard for self-defense should be the standard of a mentally ill person like the defendant. “The common law does not take account of a person’s mental capacity when determining whether he has acted as the reasonable person would have acted. The law holds ‘the mentally deranged or insane defendant accountable for his negligence as if the person were a normal, prudent person.’ (Prosser & Keeton, Torts (5th ed. 1984) § 32, p. 177.)” (Ibid.; see also Rest.2d Torts, § 283B.)

Secondary Sources 1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 67–85. 3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, §§ 73.11, 73.12 (Matthew Bender). 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.04[1][c] (Matthew Bender). 6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.01[1][b] (Matthew Bender).

===CALCRIM 506 Justifiable Homicide: Defending Against Harm to Person Within Home or on Property (2021)===

The defendant is not guilty of (murder/ [or] manslaughter/ attempted murder/ [or] attempted voluntary manslaughter) if (he/she) (killed/attempted to kill) to defend (himself/herself) [or any other person] in the defendant’s home. Such (a/an) [attempted] killing is justified, and therefore not unlawful, if: 1. The defendant reasonably believed that (he/she) was defending a home against <insert name of decedent>, who (intended to or tried to commit ___________ <insert forcible and atrocious crime>/ [or] violently[[,] [or] riotously[,]/ [or] tumultuously] tried to enter that home intending to commit an act of violence against someone inside); 2. The defendant reasonably believed that the danger was imminent; 3. The defendant reasonably believed that the use of deadly force was necessary to defend against the danger; AND 4. The defendant used no more force than was reasonably necessary to defend against the danger. Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of violence to (himself/herself/ [or] someone else). Defendant’s belief must have been reasonable and (he/she) must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, then the [attempted] killing was not justified. When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed. [A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of (death/bodily injury/ <insert forcible and atrocious crime>) has passed. This is so even if safety could have been achieved by retreating.] The People have the burden of proving beyond a reasonable doubt that the [attempted] killing was not justified. If the People have not met this 219 Copyright Judicial Council of Californiaburden, you must find the defendant not guilty of [attempted] (murder/ [or] manslaughter). New January 2006 BENCH NOTES Instructional Duty The court has a sua sponte duty to give defense instructions supported by substantial evidence and not inconsistent with the defendant’s theory of the case. (See People v. Baker (1999) 74 Cal.App.4th 243, 252 [87 Cal.Rptr.2d 803]; People v. Barton (1995) 12 Cal.4th 186, 195 [47 Cal.Rtpr.2d 569, 906 P.2d 531]; People v. Slater (1943) 60 Cal.App.2d 358, 367–368 [140 P.2d 846] [error to refuse instruction based on Pen. Code, § 197, subd. 2 when substantial evidence supported inference that victim intended to enter the habitation].) Penal Code section 197, subdivision 2 provides that “defense of habitation” may be used to resist someone who “intends or endeavors, by violence or surprise, to commit a felony . . . .” (Pen. Code, § 197, subd. 2.) However, in People v. Ceballos (1974) 12 Cal.3d 470, 477–479 [116 Cal.Rptr. 233, 526 P.2d 241], the court held that the felony feared must be “some atrocious crime attempted to be committed by force.” (Id. at p. 478.) Forcible and atrocious crimes are those crimes whose character and manner reasonably create a fear of death or serious bodily harm. (People v. Ceballos, supra, 12 Cal.3d at p. 479.) The following crimes have been deemed forcible and atrocious as a matter of law: murder, mayhem, rape, and robbery. (Id. at p. 478.) Ceballos specifically held that burglaries which “do not reasonably create a fear of great bodily harm” are not sufficient “cause for exaction of human life.” (Id. at p. 479.) Thus, although the statute refers to “defense of habitation,” Ceballos requires that a person be at risk of great bodily harm or an atrocious felony in order to justify homicide. (Ibid.) The instruction has been drafted accordingly. If the defendant is asserting that he or she was resisting the commission of a forcible and atrocious crime, give the first option in element 1 and insert the name of the crime. If there is substantial evidence that the defendant was resisting a violent entry into a residence for the general purpose of committing violence against someone inside, give the second option in element 1. (See Pen. Code, § 197, subd. 2.) The court may give the bracketed words “riotously” and “tumultuously” at its discretion. Related Instructions CALCRIM No. 3477, Presumption That Resident Was Reasonably Afraid of Death or Great Bodily Injury. AUTHORITY • Instructional Requirements. Pen. Code, § 197, subd. 2. • Actual and Reasonable Fear. See Pen. Code, § 198; see People v. Curtis (1994) CALCRIM No. 506 HOMICIDE 220 Copyright Judicial Council of California30 Cal.App.4th 1337, 1361 [37 Cal.Rptr.2d 304]. • Burden of Proof. Pen. Code, § 189.5. • Fear of Imminent Harm. People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [56 Cal.Rtpr.2d 146, 921 P.2d 1]; People v. Lucas (1958) 160 Cal.App.2d 305, 310 [324 P.2d 933]. • Forcible and Atrocious Crimes. People v. Ceballos (1974) 12 Cal.3d 470, 478–479 [116 Cal.Rptr. 233, 526 P.2d 241]. • No Duty to Retreat. People v. Hughes (1951) 107 Cal.App.2d 487, 493 [237 P.2d 64]; People v. Hatchett (1942) 56 Cal.App.2d 20, 22 [132 P.2d 51]. SECONDARY SOURCES 1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 88. 3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, § 73.13 (Matthew Bender). 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.04[1][c] (Matthew Bender). 6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.01[1][b] (Matthew Bender)

CALCRIM 507. By Peace Officer (2021)

507. Justifiable Homicide: By Peace Officer The defendant is not guilty of (murder/ [or] manslaughter/attempted murder/ [or] attempted voluntary manslaughter) if (he/she) (killed/attempted to kill) someone while (acting as a peace officer/obeying a peace officer’s command for aid and assistance). (A/An) [attempted] killing is justified, and therefore not unlawful, if: 1. The defendant was (a peace officer/obeying a peace officer’s command for aid and assistance); AND 2. The [attempted] killing was committed while the defendant either: A. Reasonably believed, based on the totality of the circumstances, that the force was necessary to defend against an imminent threat of death or serious bodily injury to the defendant or another person; OR B. Reasonably believed, based on the totality of the circumstances, that: B1. <insert name of fleeing felon> was fleeing; B2. The force was necessary to arrest or detain <insert name of fleeing felon> for the crime of <insert name of felony>; B3. The commission of the crime of <insert name of felony> created a risk of or resulted in death or serious bodily injury to another person; AND B4. <insert name of fleeing felon> would cause death or serious bodily injury to another person unless immediately arrested or detained. [A serious bodily injury means a serious impairment of physical condition. Such an injury may include[, but is not limited to]: (loss of consciousness/ concussion/ bone fracture/ protracted loss or impairment of function of any bodily member or organ/ a wound requiring extensive suturing/ [and] serious disfigurement).] [A threat of death or serious bodily injury is imminent when, based on the totality of the circumstances, a reasonable officer in the same situation would believe that a person has the present ability, opportunity, 222 Copyright Judicial Council of Californiaand apparent intent to immediately cause death or serious bodily injury to the peace officer or to another person. An imminent harm is not merely a fear of future harm, no matter how great the fear and no matter how great the likelihood of the harm, but is one that, from appearances, must be instantly confronted and addressed.] [Totality of the circumstances means all facts known to the defendant at the time, including the conduct of the defendant and <insert name of decedent> leading up to the use of deadly force.] [In considering the totality of circumstances, you may consider whether: [• Prior to the use of force, the defendant [identified] [or] [attempted to identify] him or herself as a peace officer and [warned] [or] [attempted to warn] that deadly force may be used(;/.)] [• Prior to the use of force, the defendant had objectively reasonable grounds to believe the person was aware that the defendant was a peace officer and that deadly force may be used(;/.)] [• The defendant was able, under the circumstances, [[to [identify] [or] [attempt to identify]] him or herself as a peace officer] [and] [to [warn] [or] [attempt to warn] that deadly force may be used].] [A peace officer who makes or attempts to make an arrest need not retreat or stop because the person being arrested is resisting or threatening to resist. A peace officer does not lose (his/her) right to self�defense by using objectively reasonable force to arrest or to prevent escape or to overcome resistance.] [A person who is employed as a police officer by <insert name of agency that employs police offıcer> is a peace officer.] [A person employed by <insert name of agency that employs peace offıcer, e.g., “the Department of Fish and Wildlife”> is a peace officer if <insert description of facts necessary to make employee a peace offıcer, e.g, “designated by the director of the agency as a peace offıcer”>.] The People have the burden of proving beyond a reasonable doubt that the [attempted] killing was not justified. If the People have not met this burden, you must find the defendant not guilty of [attempted] (murder/ [or] manslaughter). New January 2006; Revised April 2011, February 2012, August 2012, April 2020 HOMICIDE CALCRIM No. 507 223 Copyright Judicial Council of CaliforniaBENCH NOTES Instructional Duty The court has a sua sponte duty to instruct on justifiable homicide when “it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.” (See People v. Breverman (1998) 19 Cal.4th 142, 156 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [addressing sua sponte duty to instruct on self�defense].) Penal Code sections 196 and 835a, as amended by Statutes 2019, ch.170 (A.B. 392), became effective on January 1, 2020. If the defendant’s act occurred before this date, the court should give the prior version of this instruction. The jury must determine whether the defendant was a peace officer. (People v. Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604, 758 P.2d 1135].) The court may instruct the jury in the appropriate definition of “peace officer” from the statute (e.g., “a Garden Grove Regular Police Officer and a Garden Grove Reserve Police Officer are peace officers”). (Ibid.) However, the court may not instruct the jury that the defendant was a peace officer as a matter of law (e.g., “Officer Reed was a peace officer”). (Ibid.) If the defendant is a police officer, give the bracketed sentence that begins with “A person employed as a police officer.” If the defendant is another type of peace officer, give the bracketed sentence that begins with “A person employed by.” Related Instructions CALCRIM No. 508, Justifiable Homicide: Citizen Arrest (Non-Peace Offıcer). CALCRIM No. 509, Justifiable Homicide: Non-Peace Offıcer Preserving the Peace. AUTHORITY • Justifiable Homicide by Peace Officer. Pen. Code, §§ 196, 199, 835a. • Burden of Proof. Pen. Code, § 189.5; People v. Frye (1992) 7 Cal.App.4th 1148, 1154–1155 [10 Cal.Rptr.2d 217]; People v. Banks (1976) 67 Cal.App.3d 379, 383–384 [137 Cal.Rptr. 652]. • Peace Officer Defined. Pen. Code, § 830 et seq. • Serious Bodily Injury Defined. Pen. Code, § 243(f)(4); People v. Taylor (2004) 118 Cal.App.4th 11, 25, fn. 4 [12 Cal.Rptr.3d 693]. SECONDARY SOURCES 1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 95. 3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, § 73.15[1] (Matthew Bender). 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.04[1][c] (Matthew Bender). 6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes CALCRIM No. 507 HOMICIDE 224 Copyright Judicial Council of CaliforniaAgainst the Person, § 142.01[1][b] (Matthew Bender).

CALCRIM 508. Justifiable Homicide: Citizen Arrest (Non-Peace Officer)

The defendant is not guilty of (murder/ [or] manslaughter/ attempted murder/ [or] attempted voluntary manslaughter) if (he/she) (killed/attempted to kill) someone while trying to arrest him or her for a violent felony. Such (a/an) [attempted] killing is justified, and therefore not unlawful, if: 1. The defendant committed the [attempted] killing while lawfully trying to arrest or detain <insert name of decedent> for committing (the crime of <insert forcible and atrocious crime, i.e., felony that threatened death or great bodily injury>/ <insert crime decedent was suspected of committing, e.g., burglary>, and that crime threatened the defendant or others with death or great bodily injury); 2. <insert name of decedent> actually committed (the crime of <insert forcible and atrocious crime, i.e., felony that threatened death or great bodily injury>/ <insert crime decedent was suspected of committing, e.g., burglary>, and that crime threatened the defendant or others with death or great bodily injury); 3. The defendant had reason to believe that <insert name of decedent> had committed (the crime of <insert forcible and atrocious crime, i.e., felony that threatened death or great bodily injury>/ <insert crime decedent was suspected of committing, e.g., burglary>, and that crime threatened the defendant or others with death or great bodily injury); [4. The defendant had reason to believe that <insert name of decedent> posed a threat of death or great bodily injury, either to the defendant or to others]; AND 5. The [attempted] killing was necessary to prevent ’s <insert name of decedent> escape. A person has reason to believe that someone [poses a threat of death or great bodily injury or] committed (the crime of <insert forcible and atrocious crime, i.e., felony that threatened death or great bodily injury> / <insert crime decedent was suspected of committing, e.g., burglary>, and that crime threatened the defendant or others with death or great bodily injury) when facts known to the person would persuade someone of reasonable caution to have (that/those) belief[s]. Great bodily injury means significant or substantial physical injury. It is 226 Copyright Judicial Council of Californiaan injury that is greater than minor or moderate harm. The People have the burden of proving beyond a reasonable doubt that the [attempted] killing was not justified. If the People have not met this burden, you must find the defendant not guilty of [attempted] (murder/ [or] manslaughter). New January 2006; Revised April 2011, February 2012, September 2020 BENCH NOTES Instructional Duty The court has a sua sponte duty to instruct on justifiable homicide when “it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.” (See People v. Breverman (1998) 19 Cal.4th 142, 156 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [addressing sua sponte duty to instruct on self�defense].) It is unclear whether the defendant must always have probable cause to believe that the victim poses a threat of future harm or if it is sufficient if the defendant knows that the victim committed a forcible and atrocious crime. In Tennessee v. Garner (1985) 471 U.S. 1, 3, 11 [105 S.Ct. 1694, 85 L.Ed.2d 1], the Supreme Court held that, under the Fourth Amendment, deadly force may not be used by a law enforcement officer to prevent the escape of an apparently unarmed suspected felon unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. “Garner necessarily limits the scope of justification for homicide under section 197, subdivision 4, and other similar statutes from the date of that decision.” (People v. Martin (1985) 168 Cal.App.3d 1111, 1124 [214 Cal.Rptr. 873].) In a footnote, Garner, supra, 471 U.S. 1, 16, fn. 15, noted that California law permits a killing in either situation, that is either when the suspect has committed an atrocious crime or when the suspect poses a threat of future harm. (See also Long Beach Police Offıcers Assn v. City of Long Beach (1976) 61 Cal.App.3d 364, 371–375 [132 Cal.Rptr. 348] [also stating the rule as “either” but quoting police regulations, which require that the officer always believe there is a risk of future harm].) The committee has provided both options. See People v. Ceballos (1974) 12 Cal.3d 470, 478–479 [116 Cal.Rptr. 233, 526 P.2d 241]. The court should review relevant case law before giving bracketed element 4. The second sentence of the great bodily injury definition could result in error if the prosecution improperly argues great bodily injury may be shown by greater than minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519, 533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to prosecutor’s erroneous argument that the injury need only be greater than minor] HOMICIDE CALCRIM No. 508 227 Copyright Judicial Council of Californiawith People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86] [upholding instructions containing great bodily injury definition as written].) Related Instructions CALCRIM No. 507, Justifiable Homicide: By Public Offıcer. CALCRIM No. 509, Justifiable Homicide: Non-Peace Offıcer Preserving the Peace. AUTHORITY • Justifiable Homicide to Preserve the Peace. Pen. Code, §§ 197, subd. 4, 199. • Lawful Resistance to Commission of Offense. Pen. Code, §§ 692–694. • Private Persons, Authority to Arrest. Pen. Code, § 837. • Burden of Proof. Pen. Code, § 189.5; People v. Frye (1992) 7 Cal.App.4th 1148, 1154–1155 [10 Cal.Rptr.2d 217]. • Felony Must Threaten Death or Great Bodily Injury. People v. Piorkowski (1974) 41 Cal.App.3d 324, 328–329 [115 Cal.Rptr. 830]. RELATED ISSUES Felony Must Actually Be Committed A private citizen may use deadly force to apprehend a fleeing felon only if the suspect in fact committed the felony and the person using deadly force had reasonable cause to believe so. (People v. Lillard (1912) 18 Cal.App. 343, 345 [123 P. 221].) Felony Committed Must Threaten Death or Great Bodily Injury Deadly force is permissible to apprehend a felon if “the felony committed is one which threatens death or great bodily injury . . . .” (People v. Piorkowski (1974) 41 Cal.App.3d 324, 328–329 [115 Cal.Rptr. 830]). SECONDARY SOURCES 1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 90–96. 3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, § 73.15[1], [3] (Matthew Bender). 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.04[1][c] (Matthew Bender). 6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.01[1][b] (Matthew Bender).

CALCRIM 509. Justifiable Homicide: Non-Peace Officer Preserving the Peace (2021)

The defendant is not guilty of (murder/ [or] manslaughter/ attempted murder/ [or] attempted voluntary manslaughter) if (he/she) (killed/attempted to kill) someone while preserving the peace. Such (a/an) [attempted] killing is justified, and therefore not unlawful, if: 1. The defendant committed the [attempted] killing while lawfully (suppressing a riot/keeping and preserving the peace); 2. The defendant had probable cause to believe that <insert name of decedent> posed a threat of serious physical harm, either to the defendant or someone else; AND 3. The [attempted] killing was necessary to lawfully (suppress a riot/ keep and preserve the peace). A person has probable cause to believe that someone poses a threat of serious physical harm when facts known to the person would persuade someone of reasonable caution that the other person is going to cause serious physical harm to another. [A riot occurs when two or more people, acting together and without legal authority, disturb the public peace by use of force or violence or by threat to use force or violence with the immediate ability to carry out those threats.] [A disturbance of the public peace may happen in any place of confinement. <insert name of detention facility> is a place of confinement.] The People have the burden of proving beyond a reasonable doubt that the [attempted] killing was not justified. If the People have not met this burden, you must find the defendant not guilty of [attempted] (murder/ [or] manslaughter). New January 2006 BENCH NOTES Instructional Duty The court has a sua sponte duty to instruct on justifiable homicide when “it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.” (See People v. Breverman (1998) 19 Cal.4th 142, 156 [77 229 Copyright Judicial Council of CaliforniaCal.Rptr.2d 870, 960 P.2d 1094] [addressing sua sponte duty to instruct on self�defense].) Related Instructions CALCRIM No. 507, Justifiable Homicide: By Public Offıcer. CALCRIM No. 508, Justifiable Homicide: Citizen Arrest (Non-Peace Offıcer). AUTHORITY • Justifiable Homicide to Preserve the Peace. Pen. Code, §§ 197, subd. 4, 199. • Lawful Resistance to the Commission of an Offense. Pen. Code, §§ 692–694. • Riot Defined. Pen. Code, § 404(a). • Burden of Proof. Pen. Code, § 189.5; People v. Frye (1992) 7 Cal.App.4th 1148, 1154–1155 [10 Cal.Rptr.2d 217]. RELATED ISSUES Person Using Force Must Fear Imminent Death or Bodily Injury “Deadly force may not be used to prevent the escape of an apparently unarmed suspected felon unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” (Tennessee v. Garner (1985) 471 U.S. 1, 3, 11 [105 S.Ct. 1694, 85 L.Ed.2d 1].) “Garner necessarily limits the scope of justification for homicide under section 197, subdivision 4, and other similar statutes from the date of that decision.” (People v. Martin (1985) 168 Cal.App.3d 1111, 1124 [214 Cal.Rptr. 873].) SECONDARY SOURCES 1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 90–66. 3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, § 73.14 (Matthew Bender). 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.04[1][c] (Matthew Bender). 6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.01[1][b] (Matthew Bender)

CALCRIM 510. Excusable Homicide: Accident

The defendant is not guilty of (murder/ [or] manslaughter) if (he/she) killed someone as a result of accident or misfortune. Such a killing is excused, and therefore not unlawful, if: 1. The defendant was doing a lawful act in a lawful way; 2. The defendant was acting with usual and ordinary caution; AND 3. The defendant was acting without any unlawful intent. A person acts with usual and ordinary caution if he or she acts in a way that a reasonably careful person would act in the same or similar situation. The People have the burden of proving beyond a reasonable doubt that the killing was not excused. If the People have not met this burden, you must find the defendant not guilty of (murder/ [or] manslaughter). New January 2006; Revised August 2012 BENCH NOTES Instructional Duty The court has no sua sponte duty to instruct on accident. (People v. Anderson (2011) 51 Cal.4th 989, 997–998 [125 Cal.Rptr.3d 408, 252 P.3d 968].) When this instruction is given, it should always be given in conjunction with CALCRIM No. 581, Involuntary Manslaughter: Murder Not Charged or CALCRIM No. 580, Involuntary Manslaughter: Lesser Included Offense, unless vehicular manslaughter with ordinary negligence is charged. (People v. Velez (1983) 144 Cal.App.3d 558, 566–568 [192 Cal.Rptr. 686].) A lawful act can be the basis of involuntary manslaughter, but only if that act is committed with criminal negligence (“in an unlawful manner or without due caution and circumspection”). (Pen. Code, § 192(b).) The level of negligence described in this instruction, 510, is ordinary negligence. While proof of ordinary negligence is sufficient to prevent a killing from being excused under Penal Code section 195, subd. 1, proof of ordinary negligence is not sufficient to find a defendant guilty of involuntary manslaughter under Penal Code section 192(b). (People v. Penny (1955) 44 Cal.2d 861, 879–880 [285 P.2d 926].) Related Instructions CALCRIM No. 3404, Accident. AUTHORITY • Excusable Homicide If Committed by Lawful Act. Pen. Code, § 195, subd. 1. 231 Copyright Judicial Council of California• Burden of Proof. Pen. Code, § 189.5; People v. Frye (1992) 7 Cal.App.4th 1148, 1154–1155 [10 Cal.Rptr.2d 217]. • Instructing With Involuntary Manslaughter. People v. Velez (1983) 144 Cal.App.3d 558, 566–568 [192 Cal.Rptr. 686]. • Misfortune as Accident. People v. Gorgol (1953) 122 Cal.App.2d 281, 308 [265 P.2d 69]. RELATED ISSUES Traditional Self-Defense In People v. Curtis (1994) 30 Cal.App.4th 1337, 1358–1359 [37 Cal.Rptr.2d 304], the court held that the claim that a killing was accidental bars the defendant from relying on traditional self-defense not only as a defense, but also to negate implied malice. However, in People v. Elize (1999) 71 Cal.App.4th 605, 610–616 [84 Cal.Rptr.2d 35], the court reached the opposite conclusion, holding that the trial court erred in refusing to give self-defense instructions where the defendant testified that the gun discharged accidentally. Elize relies on two Supreme Court opinions, People v. Barton (1995) 12 Cal.4th 186 [47 Cal.Rtpr.2d 569, 906 P.2d 531], and People v. Breverman (1998) 19 Cal.4th 142 [77 Cal.Rptr.2d 870, 960 P.2d 1094]. Because Curtis predates these opinions, Elize appears to be the more persuasive authority. SECONDARY SOURCES 1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 274. 3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, §§ 73.01[5], 73.16 (Matthew Bender). 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.04[1][c] (Matthew Bender). 6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.01[1][b] (Matthew Bender)

CALCRIM 511. Accident in the Heat of Passion

The defendant is not guilty of (murder/ [or] manslaughter) if (he/she) killed someone by accident while acting in the heat of passion. Such a killing is excused, and therefore not unlawful, if, at the time of the killing: 1. The defendant acted in the heat of passion; 2. The defendant was (suddenly provoked by <insert name of decedent>/ [or] suddenly drawn into combat by <insert name of decedent>); 3. The defendant did not take undue advantage of <insert name of decedent>; 4. The defendant did not use a dangerous weapon; 5. The defendant did not kill <insert name of decedent> in a cruel or unusual way; 6. The defendant did not intend to kill <insert name of decedent> and did not act with conscious disregard of the danger to human life; AND 7. The defendant did not act with criminal negligence. A person acts in the heat of passion when he or she is provoked into doing a rash act under the influence of intense emotion that obscures his or her reasoning or judgment. The provocation must be sufficient to have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. In order for the killing to be excused on this basis, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. It is not enough that the defendant simply was provoked. The defendant is not allowed to set up (his/her) own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation 233 Copyright Judicial Council of Californiaand knowing the same facts, would have reacted from passion rather than judgment. [A dangerous weapon is any object, instrument, or weapon [that is inherently deadly or dangerous or one] that is used in such a way that it is capable of causing and likely to cause death or great bodily injury.] [An object is inherently deadly if it is deadly or dangerous in the ordinary use for which it was designed.] [Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.] Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when: 1. He or she acts in a way that creates a high risk of death or great bodily injury; AND 2. A reasonable person would have known that acting in that way would create such a risk. In other words, a person acts with criminal negligence when the way he or she acts is so different from how an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act. The People have the burden of proving beyond a reasonable doubt that the killing was not excused. If the People have not met this burden, you must find the defendant not guilty of (murder/ [or] manslaughter). New January 2006; Revised April 2011, September 2019, September 2020 BENCH NOTES Instructional Duty The trial court has a sua sponte duty to instruct on accident and heat of passion that excuses homicide when there is evidence supporting the defense. (People v. Hampton (1929) 96 Cal.App. 157, 159–160 [273 P. 854] [court erred in refusing defendant’s requested instruction].) Give the bracketed phrase “that is inherently deadly or one” and give the bracketed definition of inherently deadly only if the object is a deadly weapon as a matter of law. (People v. Stutelberg (2018) 29 Cal.App.5th 314, 317–318 [240 Cal.Rptr.3d 156].) The second sentence of the great bodily injury definition could result in error if the prosecution improperly argues great bodily injury may be shown by greater than CALCRIM No. 511 HOMICIDE 234 Copyright Judicial Council of Californiaminor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519, 533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to prosecutor’s erroneous argument that the injury need only be greater than minor] with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86] [upholding instructions containing great bodily injury definition as written].) Related Instructions CALCRIM No. 510, Excusable Homicide: Accident. CALCRIM No. 3471, Right to Self-Defense: Mutual Combat or Initial Aggressor. CALCRIM No. 570, Voluntary Manslaughter: Heat of Passion—Lesser Included Offense. AUTHORITY • Excusable Homicide if Committed in Heat of Passion. Pen. Code, § 195, subd. 2. • Burden of Proof. Pen. Code, § 189.5; People v. Frye (1992) 7 Cal.App.4th 1148, 1154–1155 [10 Cal.Rptr.2d 217]. • Deadly Weapon Defined. See People v. Aguilar (1997) 16 Cal.4th 1023, 1028–1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204]. • Inherently Deadly Defined. People v. Perez (2018) 4 Cal.5th 1055, 1065 [232 Cal.Rptr.3d 51, 416 P.3d 42]; People v. Aguilar (1997) 16 Cal.4th 1023, 1028–1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204]. RELATED ISSUES Distinguished From Voluntary Manslaughter Under Penal Code section 195, subd. 2, a homicide is “excusable,” “in the heat of passion” if done “by accident,” or on “sudden . . . provocation . . . or . . . combat.” (Pen. Code, § 195, subd. 2.) Thus, unlike voluntary manslaughter, the killing must have been committed without criminal intent, that is, accidentally. (See People v. Cooley (1962) 211 Cal.App.2d 173, 204 [27 Cal.Rptr. 543], disapproved on other grounds in People v. Lew (1968) 68 Cal.2d 774, 778, fn. 1 [69 Cal.Rptr. 102, 441 P.2d 942]; Pen. Code, § 195, subd. 1 [act must be without criminal intent]; Pen. Code, § 26, subd. 5 [accident requires absence of “evil design [or] intent”].) The killing must also be on “sudden” provocation, eliminating the possibility of provocation over time, which may be considered in cases of voluntary manslaughter. (See Bench Notes to CALCRIM No. 570, Voluntary Manslaughter: Heat of Passion—Lesser Included Offense.) Distinguished From Involuntary Manslaughter Involuntary manslaughter requires a finding of gross or criminal negligence. (See Bench Notes to CALCRIM No. 581, Involuntary Manslaughter: Murder Not Charged; Pen. Code, § 26, subd. 5 [accident requires no “culpable negligence”].) SECONDARY SOURCES 1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 274. HOMICIDE CALCRIM No. 511 235 Copyright Judicial Council of California1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the Person, § 230. 3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, § 73.16 (Matthew Bender). 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.04[1][c] (Matthew Bender). 6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, §§ 142.01[1][b], [g], 142.02[2][a] (Matthew Bender).

CALCRIM No. 3475. Right to Eject Trespasser From Real Property

The (owner/lawful occupant) of a (home/property) may request that a trespasser leave the (home/property). If the trespasser does not leave within a reasonable time and it would appear to a reasonable person that the trespasser poses a threat to (the (home/property)/ [or] the (owner/ [or] occupants), the (owner/lawful occupant) may use reasonableforce to make the trespasser leave.

Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to make the trespasser leave.

[If the trespasser resists, the (owner/lawful occupant) may increase the amount of force he or she uses in proportion to the force used by the trespasser and the threat the trespasser poses to the property.]

When deciding whether the defendant used reasonable force, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed.

The People have the burden of proving beyond a reasonable doubt that the defendant used more force than was reasonable. If the People have not met this burden, you must find the defendant not guilty of <insert crime>.

New January 2006; Revised April 2008

BENCH NOTES

Instructional Duty

The court must instruct on a defense when the defendant requests it and there is substantial evidence supporting the defense. The court has a sua sponte duty to instruct on a defense if there is substantial evidence supporting it and either the defendant is relying on it or it is not inconsistent with the defendant’s theory of the case.

When the court concludes that the defense is supported by substantial evidence and is inconsistent with the defendant’s theory of the case, however, it should ascertain whether defendant wishes instruction on this alternate theory. (People v. Gonzales (1999) 74 Cal.App.4th 382, 389–390 [88 Cal.Rptr.2d 111]; People v. Breverman (1998) 19 Cal.4th 142, 157 [77 Cal.Rptr.2d 870, 960 P.2d 1094].)

Substantial evidence means evidence of a defense, which, if believed, would be sufficient for a reasonable jury to find a reasonable doubt as to the defendant’s guilt. (People v. Salas (2006) 37 Cal.4th 967, 982–983 [38 Cal.Rptr.3d 624, 127 P.3d 40].)

Related Instructions

CALCRIM No. 3476, Right to Defend Real or Personal Property. CALCRIM No. 3477, Presumption That Resident Was Reasonably Afraid of Death or Great Bodily Injury. CALCRIM No. 506, Justifiable Homicide: Defending Against Harm to Person Within Home or on Property.

AUTHORITY

• Instructional Requirements. See People v. Corlett (1944) 67 Cal.App.2d 33, 51–52 [153 P.2d 595]; People v. Teixeira (1899) 123 Cal. 297, 298–299 [55 P. 988]; Civ. Code, § 50.

• Burden of Proof. See Boyer v. Waples (1962) 206 Cal.App.2d 725, 727 [24 Cal.Rptr. 192] [civil action].

RELATED ISSUES Negating Self-Defense Claim

The right to defend one’s home may negate a defendant’s claim of imperfect self- defense, as held in People v. Watie (2002) 100 Cal.App.4th 866, 878 [124 Cal.Rptr.2d 258]:

[T]he right of a victim to defend himself and his property is a relevant consideration in determining whether a defendant may prevail when he seeks to negate malice aforethought by asserting the affirmative defense of imperfect self-defense . . . [¶] . . . If [the victim] had a right to use force to defend himself in his home, then defendant had no right of self-defense, imperfect, or otherwise.

SECONDARY SOURCES

1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 88.

3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, §§ 73.11[1], 73.13[2] (Matthew Bender).

CALCRIM 3477. Presumption That Resident Was Reasonably Afraid of Death or Great Bodily Injury (Pen. Code, § 198.5)

The law presumes that the defendant reasonably feared imminent death or great bodily injury to (himself/herself)[, or to a member of (his/her) family or household,] if:

1. An intruder unlawfully and forcibly (entered/ [or] was entering) the defendant’s home;

2. The defendant knew [or reasonably believed] that an intruder unlawfully and forcibly (entered/ [or] was entering) the defendant’s home;

3. The intruder was not a member of the defendant’s household or family;

AND

4. The defendant used force intended to or likely to cause death or great bodily injury to the intruder inside the home.

[Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.]

The People have the burden of overcoming this presumption. This means that the People must prove that the defendant did not have a reasonable fear of imminent death or injury to (himself/herself)[, or to a member of his or her family or household,] when (he/she) used force against the intruder. If the People have not met this burden, you must find the defendant reasonably feared death or injury to (himself/herself)[, or to a member of his or her family or household].

New January 2006; Revised March 2017, September 2020

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to instruct on presumptions relevant to the issues of the case. (See People v. Hood (1969) 1 Cal.3d 444, 449 [82 Cal.Rptr. 618, 462 P.2d 370]; but see People v. Silvey (1997) 58 Cal.App.4th 1320, 1327 [68 Cal.Rptr.2d 681] [presumption not relevant because defendant was not a resident]; People v. Owen (1991) 226 Cal.App.3d 996, 1005 [277 Cal.Rptr. 341] [jury was otherwise adequately instructed on pertinent law].)

Give this instruction when there is evidence that a resident had a reasonable expectation of protection against unwanted intruders. People v. Grays (2016) 246 Cal.App.4th 679, 687–688 [202 Cal.Rptr.3d 288].

The second sentence of the great bodily injury definition could result in error if the prosecution improperly argues great bodily injury may be shown by greater than minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519, 533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to prosecutor’s erroneous argument that the injury need only be greater than minor] with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86] [upholding instructions containing great bodily injury definition as written].)

AUTHORITY • Instructional Requirements. Pen. Code, § 198.5; People v. Brown (1992) 6 Cal.App.4th 1489, 1494–1495 [8 Cal.Rptr.2d 513].

• Rebuttable Presumptions Affecting Burden of Proof. Evid. Code, §§ 601, 604, 606.

• Definition of Residence. People v. Grays (2016) 246 Cal.App.4th 679, 687–688 [202 Cal.Rptr.3d 288].

SECONDARY SOURCES

1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 76.

3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, §§ 73.11[1], 73.13 (Matthew Bender).

Multiple attackers

The purpose of recognizing self-defense as a complete justification to homicide is the reasonable belief in the necessity for the use of deadly force to repel an attack in order to save oneself or another from death or great bodily harm. See State v. Melendez, 97 N.M. 738, 740, 643 P.2d 607, 609 (1982) (“Self-defense is a belief by a reasonable [person] in the necessity to save himself [or herself] from death or great bodily harm.”); State v. Reneau, 111 N.M. 217, 219, 804 P.2d 408, 410 (Ct.App.1990) (“The inquiry in a self-defense claim focuses on the reasonableness of defendant's belief as to the apparent necessity for the force used to repel an attack.”). Because self-defense is defined by the objectively reasonable necessity of the action, the defense obviously does not extend to a defendant's acts of retaliation for another's involvement in a crime against him or her. See State v. Pruett, 24 N.M. 68, 73, 172 P. 1044, 1046 (1918) (affirming the trial court's use of a jury instruction containing the “familiar and oft-approved statement that the law of self-defense does not imply the right to attack, nor will it permit acts done in retaliation for revenge”); cf. State v. Duarte, 1996–NMCA–038, ¶ 8, 121 N.M. 553, 915 P.2d 309 (stating that under New Mexico law “there must have been some evidence that an objectively reasonable person, put into Defendant's subjective situation, would have thought that [the individual whom the defendant sought to protect] was threatened with death or great bodily harm, and that the use of deadly force was necessary to prevent the threatened injury ” (emphasis added)). While it is true that a person may act in self-defense against multiple attackers acting in concert, this principle applies only to the extent that each accomplice poses an immediate danger of death or great bodily harm, thereby necessitating an act of self-defense. See People v. Johnson, 112 Mich.App. 483, 316 N.W.2d 247, 249–50 (1982) (“This principle does not give a defendant carte blanche to kill anybody who is marginally associated with the alleged assailant.”). Coffin's tendered instruction would have allowed a claim of self-defense against an accomplice to an attacker despite the fact that the accomplice posed no immediate danger of death or great **487 *202 bodily harm and despite a lack of necessity for the actions against the accomplice. Therefore, Coffin's instruction is contrary to the law of New Mexico regarding self-defense, and the trial court properly denied Coffin's request to so instruct the jury.

State v. Coffin (1999) 128 N.M. 192, 201–02 [991 P.2d 477, 486–87]

We adopt the rule stated in 40 C.J.S., Homicide s 136, p. 1021, as follows: “Where accused is attacked by two or more persons, or is attacked by one person and others are acting with the assailant or are present and aiding and encouraging him, he has a right to act in self-defense against all and, in a proper case, to kill one or all. However, accused is not justified in killing one of such persons where he does not entertain a belief that he is in *487 danger of serious bodily injury or loss of life at the hands of such person.” (Footnotes omitted.)This principle does not give a defendant carte blanche to kill anybody who is marginally associated with the alleged assailant. In Norris v. State, 42 Tex.Cr.R. 559, 61 S.W. 493 (1901), the defendant was convicted of murder for shooting one of two brothers with whom he was arguing. On appeal, the conviction was affirmed. The court rejected the defendant's argument that he was entitled to an instruction that, if he reasonably believed he was in danger of death or serious bodily harm at the hands of one of the brothers, he had the right to kill either. The court in Norris stated: “If to defendant it reasonably appeared that the danger in fact existed from deceased or his brother, he had the right to defend against it to the same extent and under the same rule which would obtain in case of real danger. Defendant has a right to defend himself against real or apparent danger, as viewed from his standpoint, against either Ed or John Brewer, if acting together; and in doing so, if he thinks it is necessary, as viewed from his standpoint, to kill either Ed or John Brewer, in order to protect his own life or his person from serious bodily injury, then, in that event, he would have the right to slay either Ed or John Brewer. But the Brewers may have been acting together, yet, if appellant did not believe it was necessary to slay Ed Brewer in order to protect himself from death or serious bodily injury, the fact that Ed Brewer advised his brother John to engage **250 in the difficulty, and was present at the time of the difficulty, and was not making any demonstration to assist in the difficulty, and it so appeared to defendant, then the mere fact that Ed Brewer did advise his brother to engage in the difficulty with defendant, and was present at the time of the difficulty, would not authorize defendant to kill Ed Brewer; but the killing would be unlawful, and would *488 be murder in either the first or second degree, or manslaughter, according as the evidence might show. In other words, appellant would have no right to kill Ed Brewer because he was a brother of John, and advised John to engage in the difficulty with appellant, and was present after so advising. The above-quoted charge requested by appellant seems to imply he would have such a right, and hence the court did not err in refusing to give the same.” Id., 563-564, 61 S.W. 493.See, also, Griffin v. Commonwealth, 204 Ky. 783, 265 S.W. 327 (1924); Gordon v. State, 193 Miss. 374, 9 So.2d 877 (1942); State v. Powell, 237 Iowa 1227, 24 N.W.2d 769 (1946).

People v. Johnson (Mich. Ct. App. 1982) 112 Mich.App. 483, 486–88 [316 N.W.2d 247, 249–50]

Statute

Penal Code section 198.5

Current statute

Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.

As used in this section, great bodily injury means a significant or substantial physical injury.

(Added by Stats. 1984, Ch. 1666, Sec. 1.)

Penal Code section 198.5

SB1134

Chapter 1666

An act to add section 198.5 to the Penal Code, relating to the self-defense.

[Approved by Governor September 30, 1984. Filed with Secretary of State September 30, 1984.]

Section 1. Section 198.5 is added to the Penal Code, to read:

Section 2. This act shall be known and may be cited as the Home Protection Bill of Rights.

Legislative Counsel's Digest of SB1666 (SB1134, Richardson)

Existing law provides that homicide is justified when committed in defense of habitation, property, or person against one who manifestly intends and endeavors in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein, or when committed in lawful defense of the person or of a spouse, parent, or child where there is reasonable ground to apprehend a design to do some great bodily injury and imminent danger of the design being accomplished. Resistance sufficient to prevent the offense may lawfully be made by the person about to be injured to prevent an offense against his person, or his family or a member thereof, or to prevent an illegal attempt by force to take or injure property in his lawful possession

This bill would provide that any person using force intended or likely to cause death or great bodily injury shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the person's residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.

Civil code section 50

Current statute

Any necessary force may be used to protect from wrongful injury the person or property of oneself, or of a spouse, child, parent, or other relative, or member of one’s family, or of a ward, servant, master, or guest.

Loose notes on non-deadly self-defense

People v. Murphy (2005) No. E035003

Additionally, a defendant who wishes to raise self-defense has the burden of producing evidence sufficient to raise a reasonable doubt that he acted in self-defense. (People v. Tewksbury, supra, 15 Cal.3d at p. 963.) But once the defendant has met this burden, the prosecution must prove beyond a reasonable doubt that the defendant did not act in self-defense. (Ibid.; People v. Adrian, supra, 135 Cal.App.3d at p. 342.) The trial court is required to instruct the jury that the prosecution has the burden of proving beyond a reasonable doubt that defendant did not act in self-defense. (Ibid.; People v. Gonzales, supra, 74 Cal.App.4th at p. 390; Evid.Code, § 502.)

See Barber v. Superior Court, 147 Cal. App. 3d 1006, 1012, 195 Cal. Rptr. 484, 47 A.L.R.4th 1 (2d Dist. 1983); CALJIC No. 8.00 (7th ed. 2003 bound vol.).

Accident

People v. Hooper, 181 Cal. App. 3d 1174, 1182, 226 Cal. Rptr. 810 (5th Dist. 1986) (disapproved of by, People v. Barton, 12 Cal. 4th 186, 47 Cal. Rptr. 2d 569, 906 P.2d 531 (1995)) (accidental killing of a human being will not be the basis for criminal liability unless it is the result of such inexcusable negligence that it constitutes involuntary manslaughter); Somers v. Superior Court, 32 Cal. App. 3d 961, 969–970, 108 Cal. Rptr. 630 (3d Dist. 1973) (person is not criminally liable for a killing committed by accident or through misfortune when there was no evil intention or culpable negligence).