Self-defense

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].)

Jury instructions for Lethal Self-Defense

CALCRIM 505

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).

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

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.)

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).