Instruction Bank # I-852 (Re: F 5.17 n4 [Application Of Imperfect Self-Defense To Attempted Murder: Adaption Of CALJIC Instructions].)
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LAW OFFICES
LOS ANGELES COUNTY PUBLIC DEFENDER
19-513 CRIMINAL COURTS BUILDING
210 WEST TEMPLE STREET
LOS ANGELES, CALIFORNIA 90012
TELEPHONE: 974-2811
July 7, 1992
Thomas Lundy
Editor
Forecite
115 Fourth Street, 2nd Floor
Santa Rosa, CA 95401
Dear Tom,
I am pleased to report that I am having continued success adapting Forecite instructions to my trials.
When I last wrote to you, I used your “claim of right” instruction to win acquittals in robbery and burglary counts (the defendant was acquitted of two counts of kidnapping for robbery in a related incident because of a reasonable doubt as to identity). In May, another client won an acquittal on a charge of premeditated attempted murder, involving a shooting which crippled an unfortunate teenage victim. The jury overcame their sympathy for the victim and accepted an “unreasonable self-defense” argument based upon the enclosed modified forecite instructions. The “harsher measures in self-defense” instruction was particularly useful. The jury hung on attempted manslaughter, a lesser included offense, and acquitted the defendant of assault with a firearm against a second purported victim. I have enclosed the CALJIC instructions which I modified for use in attempted murder trials, a chore your readers might avoid should you choose to publish these.
I look forward to continued success with Forecite.
Sincerely,
MARK WINDHAM
Deputy Public Defender
MW:bg
Encls.
Defense Special Instruction # 1
CALJIC 5.12 (Modified)
JUSTIFIABLE ATTEMPTED HOMICIDE IN SELF-DEFENSE
People v. Aris (89) 215 CA3d 1178, 1188
The attempted killing of another person in self-defense is justifiable and not unlawful when the person who attempts the killing honestly and reasonably believes:
1. That there is imminent danger that the other person will kill him or cause him great bodily injury, and
2. That it was necessary under the circumstances to attempt to kill the other person to prevent death or great bodily injury to himself. In order to justify an attempted killing of another person in self-defense, actual danger or great bodily injury is not necessary. on the other hand, a mere fear of death or great bodily injury that is not imminent is not sufficient.
Defense Special Instruction # 2
CALJIC 5.13 (Modified)
JUSTIFIABLE ATTEMPTED MURDER-LAWFUL
DEFENSE OF SELF OR ANOTHER
Attempted homicide is justifiable and not unlawful when committed by any person in the defense of himself if he honestly and reasonably believed that the individual he attempted to kill intended to commit a forcible and atrocious crime and that there was imminent danger of such crime being accomplished. A person may act upon appearances whether such danger is real or merely apparent.
Defense Special Instruction # 3
HONEST BUT UNREASONABLE BELIEF
IN NECESSITY TO DEFEND:
DEFINITION OF IMMINENT
People v. Aris (89) 215 CA3d 1178, 1187
“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 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.
Defense Special Instruction # 4
CALJIC 5.16
FORCIBLE AND ATROCIOUS CRIME —
DEFINED
A forcible and atrocious crime, as the term is used in these instructions, is any felony, the character and manner of the commission of which threatens, or is reasonably believed by the defendant to threaten, life or great bodily injury so as to instill in him a reasonable fear of death or great bodily injury.
Defense Special Instruction # 5
One whose life or person has been threatened by previous attacks is justified. in acting more quickly and taking harsher measures for his own protection in the event of assault either actual or threatened, than would be a person who had not experienced such attacks.
If in this case you believe from the evidence that gang members threatened the life or person of the defendant by the attacks made upon him before March 29, 1991 and that the defendant because of such prior attacks had reasonable cause to fear greater peril in the event of a confrontation with gang members than he would have otherwise, you are to take such facts and circumstances into consideration in determining whether, defendant acted in a manner in which a reasonable person would act in protecting his own life or bodily safety.
POINTS AND AUTHORITIES
Defense Special Instruction # 5
Under California law, one who has received threats against his life or person by another is justified in acting more quickly and taking harsher measures for his own protection in the event of assault, whether actual or threatened, than would a person who had not received such threats. (People v. Moore (1954) 43 Cal.2d 517, 528, 275 P.2d 485; People v. Bush (1978) 84 Cal.App.3d 294, 302-304, 148 Cal.Rptr. 430, see People v. Aris (1989) 215 Cal.App.3d 1178, 1190). By analogy, prior attacks, similar in nature, could give rise to the mitigated mental state contemplated in Moore, and a jury instruction would be required.
“Where, . . . there is evidence tending to show (facts) (such as in this case) the making of threats of death or great bodily harm by deceased against thedefendant, which are relied on as influencing or justifying defendant’s act, instruction on the law of this subject is proper (41 C.J.S., Homicide, § 382, p. 185) and if not covered a correct instruction on the subject proposed by one of the parties should be given [T]he proposed instruction would not tell the jury that. under the circumstances mentioned the defendant would be justified in committing an assault with a deadly weapon in self-defense, but only that the jury was ‘to take such facts and circumstances into . . . consideration in determining whether the defendant acted in a manner in which a reasonable man would act in protecting his own life or bodily safety.'” People v. Moore (1954) 43 C2d 517, 528.
Because the focus, in a Flannel defense is upon defendant’s state of mind, it is the entirety of the circumstances in this particular case, including the prior attacks which the jury must consider:
“If the circumstances are both adequate to raise, and sufficient to justify a belief in the necessity to take life in order to save oneself from such a danger, where the belief exists and is acted upon, the homicide is excusable upon a theory of self-defense; while, if the act is committed under the influence of uncontrollable fear of death or great bodily harm, caused by the circumstances, but without the presence of all the ingredients necessary to excuse the act on the ground of self-defense, the killing is manslaughter.”
People v. Flannel 25 Cal.3d 668, 676
It would not matter that the victims in this case were entirely innocent as in People v. Wells (1949) 33 C2d 330, 345 where the court held that in a case of “honest though unreasonable” self-defense “the jury could well be materially aided” by knowledge of defendant’s mental condition. This is so because the focus is on defendant’s perception of the situation and facts that affected it, though the victims may have had nothing to do with the development of this state of mind on the part of defendant.
As in Moore, defendant is entitled to a jury instruction, in particular, defense special instruction number five to pinpoint the crux of defendant’s case. People v. Rincon-Pineda (1985) 14 Cal.3d 864, 885 held:
For his part, the defendant is entitled upon request to an instruction “relating particular facts to any legal issue.” (People v. Sears (1970) 2 Cal.3d 180, 190 [84 Cal.Rptr. 711, 465 P.2d 847].) Such a requested instruction may, in appropriate circumstances, relate the reasonable doubt standard for proof of guilt to particular elements of the crime charged or may pinpoint the crux of a defendant’s case, such as mistaken identification or alibi (People v. Roberts (1967) 256 Cal.App.2d 488, 492-494 [64 Cal.Rptr. 70]; People v. Gomez (1972) 24 Cal.App.3d 486, 490 [100 Cal.Rptr. 896]).
Defense Special Instruction # 6
CALJIC 5.15 (Modified)
CHARGE OF ATTEMPTED MURDER — BURDEN OF
PROOF RE JUSTIFICATION OR EXCUSE
Upon a trial of a charge of attempted murder, the attempted killing is lawful, if it was justifiable. The burden is on the prosecution to prove beyond a reasonable doubt that the homicide was unlawful, that is, not justifiable. If you have a reasonable doubt that the attempted homicide was unlawful, you must find the defendant not guilty.
Defense Special Instruction # 7
CALJIC 5.17 (Modified)
HONEST BUT UNREASONABLE BELIEF IN
NECESSITY TO DEFEND — ATTEMPTED
MANSLAUGHTER
A person, who attempts to kill another person in the honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, acts unlawfully, but does not harbor malice aforethought and is not guilty of attempted murder. This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief. Such an honest but unreasonable belief is not a defense to the crime of attempted manslaughter.
Defense Special Instruction # 8
CALJIC 8.40 (Modified)
ATTEMPTED MANSLAUGHTER — DEFINED
(See CALJIC 8.66 Use Note, January 1992 Pocket Part)
A lesser included offense of attempted murder is attempted manslaughter, a violation of Section 664/192 of the Penal Code.
The crime of attempted manslaughter is the attempted unlawful killing of a human being without malice aforethought.
There is no malice aforethought if the defendant attempted to kill a human being in the honest but unreasonable belief in the necessity to defend himself against imminent peril to life or great bodily injury.
In order to prove the commission of the crime of attempted manslaughter, each of the following elements must be proved:
1. That the defendant attempted to kill a human being, and
2. That the attempted killing was unlawful.
Defense Special Instruction # 9
CALJIC 8.50 Modified
ATTEMPTED MURDER AND ATTEMPTED MANSLAUGHTER DISTINGUISHED
The distinction between attempted murder and attempted manslaughter is that attempted murder requires malice while attempted manslaughter does not.
When an attempt to kill, though unlawful, is made in the honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury the offense is attempted manslaughter. In such a case, even if an intent to kill exists, the law is that malice, which is an essential element of attempted murder, is absent.
To establish that an attempted killing is attempted murder and not attempted manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of attempted murder and that , the attempt to kill was not made in the honest, even though unreasonable, belief in the necessity to defend against imminent peril to life or great bodily injury.
Defense Special Instruction # 10
CALJIC 8.72 Modified
DOUBT WHETHER ATTEMPTED MURDER OR ATTEMPTED MANSLAUGHTER
If you are satisfied beyond a reasonable doubt that the attempted killing was unlawful, but you have a .reasonable doubt whether the crime is attempted murder or attempted manslaughter, you must give the defendant the benefit of such doubt and find it to be attempted manslaughter rather than attempted murder.
Defense Special Instruction # 13
Assault: Intent To Frighten Or Distract
The defendant may not be convicted of assault with a firearm if he merely intended to confront _____________ and if his intent was not an attempt to apply physical force against him,.
If after consideration of all the evidence you have a reasonable doubt that the defendant intended to apply physical force against ________________ you must find him not guilty of assault with a firearm in count two.
