SELF-DEFENSE WAS ERRONEOUSLY NEGATED
BY THE JURY INSTRUCTION WHICH DEFINED
THE CIRCUMSTANCES UNDER WHICH A CITIZEN
MAY USE DEADLY FORCE
The heart of John Doe’s defense was that Terry M, John F and/or Shawn O unlawfully used deadly force. This defense was founded not only upon Doe’s testimony but also upon the testimony of the prosecution witnesses. The record contains substantial evidence upon which the jury could have concluded that Mr. M used deadly force–e.g., the truck and/or the baseball bat–upon John Doe before he had drawn his knife and that Doe used the knife in self-defense against this deadly attack. Moreover, the jury could have determined that Mr. F and Mr. O, who were substantially bigger than the Doe brothers (Statement of Facts pp. 10-11), intended to cause great bodily harm by assaulting them with fists. [Footnote 22]
Obviously, therefore, the jury instructions regarding whether or not Mr. M, Mr. F and Mr. O had a right to use deadly force were critical. If the jury concluded that all three were acting lawfully, neither John Doe nor his brother had the right to self-defense. On the other hand, the unlawful use of deadly force by Mr. M, Mr. F or Mr. O would constitute a “forcible and atrocious crime” making self-defense available to the Doe brothers. (See CALJIC 5.10: CT 324 and 5.13: CT 326.)
The key instruction regarding this issue was erroneous. The jury was told that “a private citizen may not use deadly force in apprehending a criminal who has committed a non-dangerous felony.” [Original emphasis.] (CT 320.) Hence, the jury would have been required to conclude that Mr. M, Mr. F and Mr. O acted lawfully in utilizing deadly force if the auto burglary was a “dangerous felony.” However, use of the term “dangerous felony” was inaccurate and misleading.
A. To Justify The Use Of Deadly Force The Crime Must Be
“Forcible And Atrocious” Not Merely “Dangerous”
The right to use deadly force to apprehend a fleeing felon is derived from the common law which is codified by Penal Code § 197(4). (People v. Jones, supra, 191 Cal.App.2d at 480-813.) Penal Code § 197(4) provides that homicide is justifiable “[w]hen necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed….” Although section 197(4) uses the words “any felony” this has been interpreted to apply, as matter of law, only to felonies which were common law felonies. (People v. Martin, supra, 168 Cal.App.3d at 1111; People v. Piorkowski, supra, 41 Cal.App.3d at 330 [dictum]; People v. Quesada (1981) 13 Cal.App.3d 533; see also, People v. Ceballos, supra, 12 Cal.3d at 478-479, construing section 197(2).) [Footnote 23] Hence, section 197 does not apply to “all felonies.”
These decisions are founded on the reality that crimes which are classified as felonies have been greatly expanded since 1872. (People v. Martin, supra, 168 Cal.App.3d at 1123.) “Elimination of most felonies from the category of capital crimes, coupled with the inclusion in the felony list of many misdeeds never punishable by death, has caused some to doubt the propriety of continuing the ancient rule which permitted any fleeing felon to be killed if he could not otherwise be overtaken. Limitation of such force for this purpose to arrest for capital crimes would be too restrictive and has seldom been suggested; the question has been whether it should be limited to the so-called ‘dangerous felonies’ such as murder, manslaughter, arson, rape, robbery, burglary, mayhem, kidnapping and various types of felonious assault.” (Perkins, supra, at 983 [footnotes omitted].) Hence, crimes which were felonies at common law are “forcible and atrocious” as a matter of law and the use of deadly force by private citizens to apprehend felons fleeing from the commission of such common law felonies is justified under section 197(4). (People v. Martin, supra, 168 Cal.App.3d at 1116.)
On the other hand, for felonies which were not common law felonies, deadly force may be used against suspects only if the felony is “forcible and atrocious,” that is, one which threatens death or great bodily harm. (Long Beach Police Officers Assn. v. City of Long Beach (1976) 61 Cal.App.3d 364, 374; People v. Ceballos, supra, 12 Cal.3d at 477-484; People v. Piorkowski, supra, 41 Cal.App.3d at 328-332; People v. Jones, supra, 191 Cal.App.2d at 481-482; see also, Kortum v. Alkire (1977) 69 Cal.App.3d 325, 333; see also, Gilmore v. Superior Ct., supra, 230 Cal.App.3d at 422 [recognizing common law rule but not resolving whether deadly force is privileged as a matter of law in all cases of first degree burglary].)
Accordingly, in order to find that deadly force was lawfully used against the perpetrators of a non-common law burglary second degree such as auto burglary, the jury must find that “the circumstances of the particular case establish that the perpetrator’s conduct ‘threatened, or was reasonably believed to threaten, death or serious bodily harm.”‘ (See, People v. Ceballos, supra, 12 Cal.3d at 479.)
B. The Instruction Was Erroneous
In the present case, the jury was not required to make such a finding. The jury was instructed that “a private citizen may not use deadly force in apprehending a criminal who has committed a non-dangerous felony.” [Emphasis added.] (CT 320.) Hence, there was no requirement that the jury find that the perpetrator’s conduct threatened, or was reasonably believed to threaten, death or serious bodily harm. By allowing the lawfulness of deadly force to turn on a finding of “dangerousness” the judge allowed the jury to be instructed on a term which requires a more precise and limited definition than the ordinary meaning of the term dangerous implied. While a trial court has no sua sponte duty to give amplifying or clarifying instructions in the absence of a request where the terms used in the instructions given are “commonly understood by those familiar with the English language” the court does have a duty to define terms which have a “technical meaning peculiar to the law.” (People v. McElheny (1982) 137 Cal.3d 396, 403; see also, People v. Pitmon (1985) 170 Cal.App.3d 38, 52; People v. Hill (1983) 141 Cal.App.3d 661, 668.)
Here, the ordinary meaning of the term “dangerous” did not encompass the legal meaning of the term. The jurors could have understood the term “dangerous” to include dangers short of a threat of death or great bodily injury. [Footnote 24]
Moreover, the jury could have found that the burglary was dangerous based on Doe’s possession of the knife even though they may have concluded that there was no threat on his part to use the knife. The testimony was conflicting regarding what took place during the burglary. At trial, Troy A testified that Doe approached him and unzipped his jacket as if to threaten use of the knife. However, Doe’s testimony disputes this and Troy A’s testimony was contested in general by other misstatements (e.g., he falsely testified that no one was drinking that evening (Statement of Facts pp. 9-10) and in particular as to this fact by his failure to mention the unzipping of the jacket at the preliminary hearing. (Statement of Facts, p. 6, fn. 4.)
C. The Erroneous Jury Instruction Was Prejudicial
Because this error constitutes a misinstruction upon a material factual element of an alternative theory of the prosecution, [Footnote 25] the reviewing court must determine whether or not it is
possible to determine whether the verdict was based under other correct instructions. Under this standard, “reversal is required when it is impossible to determine whether the verdict was based on admissible evidence submitted under correct instructions, or on erroneous determination of questions improperly submitted to the jury.” (People v. Robinson (1964) 61 Cal.2d 373, 406; see also, People v. Cantrell (1973) 8 Cal.3d 672, 686; People v. Reyes, supra,__Cal.App.3d__, 92 DAR 1452.)
In the present case, it is impossible to determine whether or not the jury relied on the erroneous instruction. Although there were other bases upon which self-defense could have been rejected by the jury–e.g., deadly force was initiated by the defendants–there is nothing in the record to establish that the jurors did so. All of the other theories relied upon by the prosecution were based upon a disputed interpretation of the facts. And, of course, the weight to be given such disputed evidence vis a vis self-defense was a matter for the jury to determine. (People v. Furber, supra, 233 Cal.App.2d at 685.) It is not possible, therefore, to determine from this record the factual disputes were resolved in favor of the prosecution and, hence, that the jury relied upon any particular theory.
Nor can it be determined that the jury otherwise resolved the material factual issue omitted by the erroneous instruction–i.e., whether the auto burglary involved a threat of death or great bodily injury. Again, the evidence on this issue was disputed and far from overwhelming. More importantly, however, even overwhelming evidence in the record would not be sufficient “because the jury was not instructed to deliberate upon the issue at all.” (People v. Reyes, supra.) The reviewing court “can find the error harmless only if other facts necessarily found by the jury are so closely related to the omitted issue that, on this evidence, no rational jury could find one without finding the other.” (Ibid.) In the present case no other finding by the jury can suffice as a substitute for a finding on the issue omitted by the erroneous instruction.
Moreover, misinstruction which relieves the jury of its obligation to find an element of the offense or removes a defense from the jury’s consideration, violates the defendant’s federal constitutional rights to compulsory process, trial by jury and due process. (6th and 14th Amendments.) (See U.S. v. Unruh (9th Cir. 1988) 855 F.2d 1363; People v. Figueroa (1986) 41 Cal.3d 714.)
In sum, “because we cannot know on which instruction the jury relied,” and because there is no other finding by the jury which would substitute for a finding on the omitted issue, the judgment should be reversed. (People v. Collie (1981) 30 Cal.3d 43, 62.)
VII
THE PERSON WHO USES DEADLY FORCE MUST HAVE
KNOWLEDGE OF THE CIRCUMSTANCES WHICH
JUSTIFY SUCH FORCE
The jury was effectively told that deadly force could be used if the defendants had committed a “dangerous felony.” However, the instructions failed to require the jury to make the determination of dangerousness from the perspective of those who inflicted the deadly force: Mr. M, Mr. F and Mr. O. Hence, the jury could have improperly found the felony to be dangerous based on the alleged threat made by Doe to Troy A even though Mr. M, Mr. F and Mr. O were not aware of that threat.
Penal Code § 197(4) permits the use of deadly force to apprehend a felon. In view of the great expansion of crimes which have been made felonies, the courts have held that deadly force may be used against felony suspects only if the felony is a “forcible and atrocious” one, which threatens death or great bodily injury. (People v. Ceballos, supra, 12 Cal.3d at 477-484; People v. Piorkowski, supra, 41 Cal.App.3d 328-332; People v. Jones, supra, 191 Cal.App.2d at 481-482.)
No case, however, has had occasion to consider whether the person utilizing the deadly force must personally be aware that the crime committed was forcible and atrocious. (All the published cases involved situations where it was obvious that the person using deadly force was aware of the acts committed by the person who was shot.) Nevertheless, logic and common sense require Penal Code § 197(4) to be construed to require knowledge.
If knowledge was not required then the use of deadly force would be based upon unknown and fortuitous circumstances rather than objective facts. For example, assume a private citizen (A) observes a person (B) being chased by another private citizen (C) who says, “Stop him. He committed a burglary.” If A shoots B it would be illogical for the lawfulness of the shooting to depend upon the knowledge of C. B’s conduct would be measured by the entirely fortuitous fact of whether the acts observed by C and characterized by C as a “burglary” were in fact acts constituting a “forcible and atrocious” crime. If B had committed an unarmed burglary of an unoccupied, isolated storage shed, deadly force would have been unlawful. However, if he committed an armed burglary of an occupied residence then deadly force was lawful.
Hence, it would contradict sound principles of public policy to allow deadly force to be inflicted when the person inflicting such force has no knowledge–either through direct observation or through the statements of others who have such knowledge–of facts justifying the use of deadly force.
Indeed, this consideration has been impliedly recognized by the courts. For example, in Kortum v. Alkire, supra, 69 Cal.App.3d 325, after distilling the holdings of Ceballos and other cases, the court said:
“Thus, it appears, from the foregoing authorities, that the applicable sections of the California Penal Code [sections 196, 197, 835a and 837], as construed by the courts of this state, prohibit the use of deadly force by anyone, including a police officer, against a fleeing felony suspect unless the felony is of the violent variety, i.e., a forcible and atrocious one which threatens death or serious bodily harm, or there are other circumstances which reasonably create a fear of death or serious bodily harm to the officer or another.” [Emphasis added.] (Id. at 333.)
By focusing upon the fear of death or serious bodily harm to the officer, the court assumed the necessity of personal knowledge of the circumstances justifying deadly force. [Footnote 26]
In fact, such an assumption is consistently found in the law of justifiable homicide of which Penal Code § 197(4) is a part. The defense of justification is only available to one who subjectively believes that the force employed was necessary. (See CALJIC 5.12, 5.13 and 5.14.)
In sum, the use of deadly force may not be justified simply because the defendant committed a forcible and atrocious crime–the person inflicting the deadly force must be subjectively aware that such a crime was committed.
This rule was particularly important in the present case. The crime committed by the defendant was not personally observed by those who used deadly force to apprehend the defendants. Nor is there any evidence that Mr. M, Mr. F and Mr. O were told anything more than what Troy A said when he “sounded the alarm,” i.e., that someone had broken into an automobile in the parking lot. (See Statement of Facts, p.__.) Hence, Mr. M and the others knew only that there had been an auto break-in. This information was not even sufficient to establish the commission of a felony much less a forcible and atrocious one. Thus, they could not lawfully have used deadly force to apprehend the defendants.
However, because the jury instructions told the jury to consider the dangerousness of the felony itself, the jury was permitted to consider circumstances not known to Mr. M and the others when they allegedly used deadly force against the defendants. For example, the jury could have concluded that the burglary was “dangerous” because Doe carried a knife and/or the jury could have believed Troy A’s testimony that the Doe brothers made threatening moves toward Troy A before he drew his gun. (RT 175-177.) Or, the jury could have believed the crime was “dangerous” because defendants would be driving the car while intoxicated.
Hence, prejudicial error was committed. The jury was allowed to improperly find that Mr. M and the others lawfully used deadly force. This finding in turn required the jury to also find that the defendants had no right to self-defense. Hence, the error deprived defendants of a crucial defense in violation of the 6th and 14th Amendments (see p. 72, above) and the judgment should be reversed.
FootnoteS:
An assault with fists may justify use of a deadly weapon in self-defense if the person reasonably believes that the assault is likely to inflict bodily injury. Given the fact that Mr. F and Mr. O were both much bigger than Doe, the jury certainly could have concluded that Doe reasonably believed that great bodily injury would be inflicted by the blows from Mr. F and Mr. O. As the jury was instructed (CT 321) deadly force is force “likely or intended to cause death or great bodily harm.” (See also, CALJIC 5.31 (CT 330) “ASSAULT WITH FISTS–WHEN USE OF DEADLY WEAPON NOT JUSTIFIED.”)
At common law, a private citizen could use deadly force to apprehend a fleeing felon if necessary to capture him and if it was certain the person had actually committed a felony. (Perkins, Criminal Law (2d Ed. 1969) pp. 981-982.) “The privilege of using deadly force had its common-law development primarily in the areas of law enforcement and crime prevention, and the extent of the development is not surprising since all felonies were punishable by death in those early days.” (Perkins, supra, at 985.)
Danger is defined as “exposure or liability to injury, pain, or loss.” (Webster’s 7th New Collegiate Dictionary, 3d Ed., 1965, p. 209.)
A lawful citizen’s arrest was one alternative advanced by the prosecutor to negate self-defense. (See RT 1546.)
See also, Tennessee v. Garner (1985) 471 U.S. 1: to use deadly force a police officer must have probable cause to believe that the suspect poses a threat of death or great bodily injury.
