) 3 Crim. C010739
v. ) No. CR89635
Defendant and Appellant. )
HONORABLE STEVEN H. RODDA, JUDGE
V
SELF-DEFENSE AGAINST DEADLY FORCE SHOULD BE
AVAILABLE TO ONE WHO COMMITS A NON-DEADLY FELONY
The evidence presented by both the prosecution and the defense established a basis for the jury to conclude that the defendants acted in self-defense. John Doe testified that he was struck by the baseball bat wielded by Terry M and in response to this deadly attack Doe defended himself by stabbing Mr. M with the knife. Obviously, the jury reasonably could have found the use of a knife to defend against a deadly attack by a baseball bat to be lawful self-defense. The weight to be afforded the evidence, the resolution of conflicts and the reasonableness of the defendant’s fears are all matters for the jury to determine. (People v. Furber (1965) 233 Cal.App.2d 678, 685.)
Moreover, even if the jury did not believe Doe’s testimony, the prosecution’s evidence alone provided a substantial basis for finding self-defense. The evidence is uncontroverted that Doe and his brother were fleeing from the scene of the auto break-in when they were confronted by Terry M. Moreover, Shawn O’s initial statement to the police indicated that Terry M, after cutting the Doe brothers off with his truck, exited with the baseball bat. (RT 511, 1341.) And, John F told the police he saw Mr. M swing the bat at Doe. (See Statement of Facts, p. 13.) Also, Mr. F and Mr. O, both of whom were bigger than the defendants, began hitting them in the body and face with their fists. (Statement of Facts p. 10.) Finally, the jury could have concluded that Mr. M attempted to hit Doe with his truck. (John Doe so testified: RT 1202-1203.) Obviously, such an act constitutes the use of deadly force sufficient to trigger the right to use deadly force in response. Furthermore, the evidence is uncontroverted that at some point during the confrontation, Doe received at least two blows to the head from the baseball bat which were severe enough to nearly knock him unconscious and which required sutures on his forehead and ear.
Hence, even without Doe’s testimony, there is ample evidence in the record that Doe and Johnny were confronted with deadly force on the part of Terry M initially and subsequently on the part of John F and Shawn O. On this basis, the jury could have concluded that Doe acted in self-defense when he used the knife to defend himself and his brother against the bat-wielding assailants.
However, because Doe was charged with felony murder, his attorney, the district attorney and the judge, all agreed that self-defense was not available to him. (RT 999-1000, 1461-1463.) Even though self-defense instructions were given for use in the event that the jury did not find felony murder, the instructions and argument of counsel, when taken as a whole, informed the jury that self-defense was not available to Doe if the killing occurred during the escape from a burglary.
This result is contrary to settled legal principles for two reasons. First, one who commits a felony which is not “forcible and atrocious”—that is one which does not threaten “death or serious bodily harm”—does not necessarily forfeit his right to defend against a deadly attack. Second, a felon who has withdrawn from the scene of the felony and communicated his intent to withdraw from the encounter, should regain his right to use self-defense at least as to a deadly attack.
A. There Should Not Be A Blanket Prohibition Against Self-Defense In Felony Murder Cases
The issue presented in this case is one of first impression in California. While it has been held that self-defense does not apply to felony murder predicated upon a nighttime burglary of an occupied residence (People v. Loustaunau (1986) 181 Cal.App.3d 163, 170), no case has addressed the question of whether a felony murder predicated upon second degree burglary of an unoccupied automobile precludes self-defense. The distinctions between burglary of an occupied residence and burglary of an unoccupied automobile are numerous and significant.
1. Burglary Now Encompasses Crimes Which Are Not “Forcible and Atrocious”
Burglary pursuant to Penal Code § 459 covers a wide range of conduct, much of which would not have constituted burglary at common law. (See Gilmore v. Superior Ct. (1990) 230 Cal.App.3d 416, 422.) As the Supreme Court pointed out in People v. Ceballos (1974) 12 Cal.3d 470, 479, fn. 2, when section 459 was enacted, the common law sanctioned the use of deadly force only in situations where the felony being committed could be characterized as “forcible and atrocious.” (Id. at 478.) Now, however, § 459 includes acts which are “forcible and atrocious.” “For example, under section 459 a person who enters a store with the intent of committing theft is guilty of burglary. [Citation omitted.] It would seem absurd to hold that a store detective could kill that person if necessary to prevent him from committing the offense. [Citation omitted.]” (People v. Ceballos, supra, 12 Cal.3d at 479.) And, it would be equally absurd to permit the use of deadly force against a person who enters an unoccupied automobile. (See, People v. Fuller, supra, 86 Cal.App.3d at 627.)
Hence, because crimes which are not “forcible and atrocious” have been added to section 459 since enactment of the felony murder rule, a blanket prohibition against the utilization of self-defense for any felony murder predicated upon burglary should not be promulgated. Rather, the right to utilize self-defense should be determined by reference to whether or nor the underlying felony was “forcible and atrocious.”
2. A Citizen’s Right To Use Deadly Force To Apprehend A Felon Turns On Whether The Felony Was “Forcible And Atrocious”
The need to differentiate between a deadly and non-deadly predicate felony murder is also demonstrated by the cases which have interpreted the right of a citizen to employ deadly force pursuant to P.C. § 197(1) and (4). In determining the citizen’s right to use deadly force, the cases have focused upon the nature of the felony committed. For example, in People v. Quesada (1980) 113 Cal.App.3d 533, 539, the court held that “…since a burglary committed when no one was on the premises is not a crime which threatens death or serious bodily harm so as to justify the use of deadly force in preventing its occurrence, it would seem to follow that it is not common or at least not per se, the sort of crime which justifies the use of deadly force by its citizen in apprehending the criminal. [Footnote omitted.]”
In People v. Piorkowski (1974) 41 Cal.App.3d 324, the court conducted a similar analysis. Initially, the court cited People v. Jones (1961) 191 Cal.App.2d 478, 481-482, which construed P.C. § 197(1). Jones analyzed that section as follows:
It is true that Penal Code, section 197, subdivision 1, does provide that homicide is justifiable when resisting an attempt to commit a felony. But the section does no more than codify the common law and should be read in the light of it. Taken at face value, and without qualification, it represents an oversimplification of the law today. [¶] The authorities generally rely on Blackstone for the earliest expression of the rule. He rationalized it in terms of no killing being justified to prevent crime unless the offense was punishable by death. [Citation.] But in those days all felonies were capital offenses. [¶] Perhaps the leading American case on the point is Storey v. State, 71 Ala. 329, 336-341, where the early law is reviewed and rejected, and the application of the rule limited to the commission of felonies that involve a danger of great personal harm, or ‘some atrocious crime attempted to be committed by force.’ This limitation is today generally recognized. (Perkins on Criminal Law, 1957 ed. pp. 880-883; 1 Wharton’s Criminal Law, Anderson, 1957 ed. pp. 453-456; 1 Warren on Homicide, 1938 ed. pp. 634-637.) Any civilized system of law recognizes the supreme value of human life, and excuses or justifies its taking only in cases of apparent absolute necessity. (State v. Nodine, 198 Ore. 679 [259 p.2d 1056, 1067-1071].)
The Piorkowski case held that the reasoning of the court in Jones applies with like force and effect in construing 197(4).
The law of this state makes it a felony to commit such offenses as theft of $50 worth of avocadoes, olives, artichokes, nuts, etc. (Pen. Code § 487), the conversion of real estate of the value $50 or more into personal property by severance from the realty of another (Pen, Code § 487b), theft of a dog, the value of which exceeds $200 (Pen. Code §§ 487e and 487g), a second conviction for indecent exposure (Pen. Code § 314) or conspiracy to commit any crime (Pen. Code § 182). Needless to say, modern rationale must preclude the holding that a private citizen may use deadly force in attempting to arrest a person for such offenses. (Piorkowski at 330.)
3. At Common Law A Non-Deadly Aggressor Could Defend Against Deadly Force
The differentiation between deadly and non-deadly wrongdoing is a fundamental principle of self-defense jurisprudence. For example, where the original aggressor is not guilty of a deadly attack, the victim has no right to use deadly or excessive force and the original aggressor’s right of self-defense arises. (1 Witkin, California Criminal Law, (2d Ed.) § 245, p. 281.) “For, as his acts did not justify upon the part of the other the use of deadly means for their prevention, his killing by the other would be criminal, and one may always defend himself against a criminal attempt to take his life.” (People v. Hecker (1895) 109 C 463, 464; see also, Witkin, supra.)
B. Unless The Felony Is “Forcible And Atrocious” The Felon Should Be Entitled To Use Self-Defense Against Deadly Force
The foregoing discussion demonstrates that self-defense should be available to one who is defending against deadly force unless the underlying felony was “forcible and atrocious.” If self-defense is not available against deadly force, the result will be illogical, inconsistent and contrary to public policy. For, unless a felon has the right to use self-defense against the infliction of unlawful deadly force by those attempting to apprehend him, then the law will encourage the use of such unlawful deadly force. Moreover, such a result would produce a decided lack of symmetry and logic in the law. While the settled principles of self-defense hold that one may always defend against the infliction of unlawful force (People v. Hecker, supra, 109 C 463), these statutory principles would be inapplicable in the case of a non-deadly felony.
Furthermore, the principles of self-defense have always provided that one who is the original aggressor or wrongdoer may regain the right to self-defense by withdrawal and communication of an intent to abandon the conflict. (People v. Button (1895) 106 C 628; see also, 1 Witkin and Epstein Calif. Criminal Law § 245, pp. 280-281.) Elimination of self-defense in cases of felony murder would contravene this principle, thus producing the following illogical result: one who, with malice aforethought, intentionally assaults another with deadly force may regain the right to self-defense by withdrawal and communication of abandonment; while one who commits a non-deadly felony with no malice or intent to kill or inflict great bodily injury, may not regain his right to self-defense by withdrawal. Similarly, one who commits burglary with the intent to murder (to which felony murder does not apply (People v. Ireland (1969) 70 Cal.2d 522)) could regain self-defense by withdrawal but one who commits burglary to steal could not.
In sum, the legal authority, social policy, and plain logic all require that self-defense be made available to those charged with felony murder.
C. The Instructions And Argument Informed The Jury That Self-Defense Was Not Available
The jury was told that “[i]f a human being is killed during the commission of a burglary—which includes the escape therefrom (CT 279-280)—then both the perpetrator and aider and abettor of the burglary are guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental.
The existence of such language presents a “reasonable likelihood” that the jurors believed self-defense to be inapplicable to felony murder. (Estelle v. McGuire (1991) __ U.S. __, 91 DAR 14785 at fn. 4.)
Moreover, the interplay between the instruction and argument should also be considered. (People v. Brown, supra, 45 Cal.3d at 1256.) Here, the prosecutor—who was the only one to discuss the issue in argument—made it clear to the jury that self-defense did not apply.
…murderers set this whole thing in motion, they didn’t have a right to self-defense, and in the felony-murder rule, ladies and gentlemen, you are not going to see anywhere on this instruction on felony-murder, you are not going to see anywhere on this instruction that during the course of this felony these defendants had a right to self defense. You are not going to see it. It doesn’t exist. It’s that simple. They didn’t have a right to self defense under these facts. (RT 1529-1530.) [Footnote 21]
And, while defense counsel did not specifically discuss this issue, he did admit to the jury that felony murder imposed “strict liability.” (RT 1554.)
D. The Error Was Prejudicial
Instructional error which deprives an accused of a defense deprives the defendant of his federal constitutional rights to due process, compulsory process and trial by jury, thus raising such fundamental 6th and 14th Amendment constitutional concerns that such error can never be deemed harmless. (See, U.S. v. Unruh (9th Cir. 1988) 855 F2d 1363, 1372; U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201-1202.) Here, the error deprived John Doe of his defense of self-defense by erroneously informing the jury that self-defense was not available if it found felony murder. The record contains substantial evidence upon which the jury could reasonably have found self-defense available based upon a finding that the auto burglary was not “forcible and atrocious” and/or upon the defendants’ withdrawal. Because the jury obviously found felony murder in reaching its verdict of guilt, it is clear that self-defense was removed from the jury’s consideration. Accordingly, the judgment should be reversed.
VI
SELF-DEFENSE WAS ERRONEOUSLY NEGATED BY THE
JURY INSTRUCTION WHICH DEFINED THE CIRCUMSTANCES
UNDER WHICH A CITIZEN MAY USE DEADLY FORCE
The heart of 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 John Doe and his brother (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. Ouesada (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 factual 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 Mr. 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 above) and the judgment should be reversed.
VIll
THE INSTRUCTIONS ERRONEOUSLY REQUIRED
JOHN DOE TO WITHDRAW EVEN IF HIS ADVERSARY
ESCALATED THE CONFLICT BY USING DEADLY FORCE
The jury reasonably could have concluded that the encounter between the Doe brothers and their pursuers began as a fist fight. Such a conclusion would have been consistent with the testimony of prosecution witnesses Shawn O and John F. (RT 312-314, 472.) Moreover, the jury also could have concluded that the fist fight was suddenly escalated into a deadly encounter by Terry M’s use of a baseball bat. Mr. O told the police that Mr. M exited his truck with the bat (RT 511, 1341) and Mr. F told the police he saw Mr. M swing the bat at John Doe. (Exhibit G.) Hence, the jury could have concluded that what began as a fist fight was escalated into a deadly encounter by Mr. M’s introduction of the bat. [Footnote 27]
However, under the instructions given to the jury Doe would have had no right to self-defense under this scenario because he was the aggressor. The jury was instructed as follows:
The right of self-defense is not immediately available to a person who was originally an assailant, but such person must really and in good faith endeavor to decline further combat and fairly and clearly inform his adversary of his desire for peace and that he has abandoned the contest. After such steps have been taken, if his opponent continues the fight, the rights of the person who was the original assailant, with respect to self-defense, are then the same as the rights of any person assailed by another. (CALJIC 5.54; CT 333.)
This instruction was prejudicially erroneous because it failed to require the jury to differentiate between a deadly and non-deadly aggressor. Well settled law permits the aggressor in a fistfight (a non-deadly encounter) to defend against sudden use of deadly force by his opponent. Hence, the instruction deprived Doe of a crucial defense by allowing the jury to reject his claims of self-defense if they concluded that he was the aggressor in a fistfight.
CALJIC 5.54 is derived from Penal Code § 197(3) which states that a homicide is not justifiable if the defendant was “the assailant” unless the defendant “really and in good faith endeavored to decline any further struggle before the homicide was committed….” However, Penal Code § 197 “does no more than codify the common law and should be read in light thereof.” (People v. Jones, supra, 191 Cal.App.2d at 481; see also, People v. Ceballos, supra, 12 Cal.3d at 478.) Thus, the aggressor instruction should reflect fully and accurately the existing common law as it related to the evidence before the jury.
An analysis of the common law rules of self-defense demonstrates that Penal Code § 197 and CALJIC 5.56 are incomplete statements of the law with respect to a defendant who initiates or culpably participates in a non-deadly encounter. In California, the courts have adopted the common law “no retreat” rule with respect to self-defense in general. Under this rule, one who is himself blameless need not, in common law terms, “retreat to the wall” before using non-deadly force to repel a non-deadly attack or deadly force to repel a deadly attack. (1 Witkin, California Criminal Law, 2d Ed., 1988, § 244, pp. 279-280.) Under this rule, however, one who unlawfully enters the encounter by aggression, provocation or mutual combat, cannot normally benefit from the no retreat law. (Id. At § 245, p. 280.)
However, an important exception to this rule exists at common law and has been recognized by the California courts. If the individual unlawfully initiated or joined in the contest with no thought of causing death or great bodily harm (e.g., a fist fight), then his fault in doing so is entirely excused if the other participant willfully escalates it to a deadly encounter. Moreover, if the unanticipated escalation of the combat is so sudden it appears that there is no reasonable opportunity to retreat, then the one who is so attacked may justifiably defend himself with deadly force. (Perkins and Boyce Criminal Law, 3d Ed., 1982, Chapter 10, p. 1128-1129.) “‘[T]he accused already has his “back to the wall” if the assault is of such sudden and vengeful character that he cannot retire without increasing his danger or exposure to death or serious injury…’ [Citations.]” (Id. at 1129, fn. 91.)
The logical underpinnings of this rule are obvious. When a non-deadly assault is returned with a violence manifestly disproportionate to that of the assault “the character of the combat is essentially changed.” (State v. Hill (1839) 20 N.C. 629, 639, cited in Perkins, supra, at p. 1142, fn. 76.) In other words, the one who changes an ordinary fistfight into a deadly encounter has unjustifiably attacked his opponent with deadly force. “While statistics are not available it is a safe estimate that not once in a thousand times is the ordinary angry slap or fist-to-cuffs result in the use of deadly force on either side. On the rare occasion when this does happen, only he who unexpectedly changed the ordinary encounter into a life and death struggle should be regarded as having brought about mortal combat.” (Perkins, supra, at pp. 1141-1142.) Thus, the original wrongdoer is in reality guilty of only simple assault and battery and “should not be held criminally responsible for a homicide which was forced upon him by the greater wrong of the other party.” (Ibid.)
This common law rule was articulated by the California Supreme Court in People v. Hecker (1895) 109 C 451:
Where one is the first wrongdoer, but his unlawful act is not felonious, as a simple assault upon the person of another,…and this unlawful act is met by a counter assault of a deadly character, the right of self-defense to the first wrongdoer is not lost…If…the counter assault be so sudden and perilous that no opportunity be given to decline or to make known to his adversary his willingness to decline the strife, if he cannot retreat with safety, then as the greater wrong of the deadly assault is upon his opponent, he would be justified in slaying forthwith, in self-defense. [Citations.]
Subsequent opinions of California courts of appeal have reaffirmed this principle.
Generally, if one makes a felonious assault upon another or has created appearances justifying the other to launch a deadly counter attack in self-defense, the original assailant cannot slay his adversary in self-defense unless he has first, in good faith, declined further combat, and has fairly notified him that he has abandoned the affray. [Citation to Hecker.] However, when the victim of a simple assault responds in a sudden and deadly encounter assault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense. (People v. Gleghorn (1987) 193 Cal.App.3d 196, 201; see also, People v. Sawyer (1967) 256 Cal.App.2d 66, 75.)
The applicability of this rule in the present case is apparent. If the jury accepted the testimony of Mr. F and Mr. O that Doe initiated the altercation by “punching and slapping” Terry M through the pickup truck window, the jury would necessarily have found that Doe was the aggressor. In this event, CALJIC 5.54 required the jury to reject any claim of self-defense unless Doe withdrew and informed the others of his desire to end the encounter. (CT 333.) However, at the time of the alleged initiation of the aggression by punching and slapping Terry M, Doe was engaged in non-deadly aggression (a fistfight). And, the Hecker rule was clearly appropriate because there was evidence that Mr. M escalated the fistfight into a deadly encounter by using the baseball bat. [Footnote 28] The absence of an instruction on the Hecker principle was, therefore, clear error.
It was the trial court’s obligation to correct this error sua sponte. Once it determined that the jury should be instructed on the principles of self-defense, the court was obligated to instruct correctly upon that defense. The trial court is obligated to correct or tailor an instruction to the particular facts of the case even though the instruction submitted by the defense was incorrect. (People v. Malone (1988) 47 Cal.3d 1, 49; People v. Whitehorn (1963) 60 Cal.2d 256, 265; People v. Cole (1988) 202 Cal.App.3d 1439, 1446; People v. Bolden (1990) 217 Cal.App.3d 1591, 1597.)
Here, CALJIC was clearly incorrect because it informed the jury that the aggressor must always withdraw.
And, because the result of this error was to deprive Doe of the primary defense upon which he relied at trial, the federal constitutional rights to due process, trial by jury and compulsory process were implicated (see above). (6th and 14th Amendments.) Therefore, the judgment should be reversed. (See above.)
FootnoteS:
The district attorney later suggested that self-defense would be applicable if in defense against “excessive force.” (RT 1546.) However, even if the jury relied upon this portion of the argument this did not accurately state the law. “Excessive force” is a much broader term than “deadly force.” Force is excessive if it is beyond that which is reasonably necessary. “Deadly force,” therefore, is not necessarily excessive. Hence, the jurors could have concluded that self-defense was not available to defendants because the deadly force used upon them was not “excessive.”
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. Game (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.
The jury, of course, may believe and/or reject selected portions of any witness’ testimony. (People v. Thornton, supra, 11 C3d at 755.)
The jury also could have concluded that Mr. O and Mr. F—who were much larger than Doe and his brother (Statement of Facts, pp. 10-11)—escalated the fight to a deadly encounter when they arrived and began punching the Doe brothers.
