Antecedent Threats Made To The Defendant
Justify Quicker And Harsher Measures In Self-Defense
One who has received threats against [his] [her] life or person made by another is justified in acting more quickly and taking harsher measures for [his] [her] own protection in the event of assault either actual or threatened, than would be a person who had not received such threats.
If in this case you believe that __________ [insert name of deceased or assault victim] made prior threats against the defendant and that the defendant, because of such threats, had reasonable cause to fear greater peril in the event of an altercation with __________ [insert name of deceased or assault victim], you are to consider such facts in determining whether the defendant acted reasonably in protecting [his] [her] own life or bodily safety.
Points and Authorities
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 (54) 43 C2d 517, 528 [275 P2d 485]; People v. Gonzales (92) 8 CA4th 1658, 1664 [11 CR2d 267]; People v. Bush (78) 84 CA3d 294, 302-04 [148 CR 430].) When the assault is by a party other than the one who made the antecedent threats, the instruction must be modified requiring the jury to find that the defendant “in fact believed” the assault and threats were made by the same person.
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
NOTES
Assault By Different Party. Antecedent threat by one party and subsequent assault by another. (People v. Gonzales (92) 8 CA4th 1658, 1664 [11 CR2d 267].)
Refusal of Antecedent Threat Instruction Is Reversible Error. In People v. Jelks UNPUBLISHED (A053527) the Court of Appeal reversed for failure to give FORECITE’s antecedent threat instruction. [A copy of this opinion is available to current FORECITE subscribers. Ask for Opinion # O-119.]
Failure To Request Antecedent Threat Instruction Is IAC. People v. Marshall UNPUBLISHED (12/16/92) (F016198). [A copy of the Marshall opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-131.]
