SERIES 500 HOMICIDE
F 505.3 PRIOR CONDUCT OF VICTIM AND ASSOCIATES RE: DEFENDANT‘S SUBJECTIVE BELIEF AND OBJECTIVE REASONABLENESS
F 505.4 PRIOR CONDUCT OF VICTIM RE: IDENTIFICATION OF ASSAILANT
TABLE OF CONTENTS
F 505.3 PRIOR CONDUCT OF VICTIM AND ASSOCIATES RE: DEFENDANT’S SUBJECTIVE BELIEF AND OBJECTIVE REASONABLENESS
F 505.3 Inst 1 A Previously Battered Person Has The Right To Act More Quickly And Harshly In Self-Defense
F 505.3 Inst 2 Antecedent Threats By A Third Party Or Group Justify Quicker And Harsher Measures In Self-Defense
F 505.3 Inst 3 Antecedent Threats: Existence Of Threat To Be Determined In Light Of All The Surrounding Circumstances
F 505.3 Inst 4 Battered Person Syndrome As Relevant To Issue Of Imminent Danger
F 505.4 PRIOR CONDUCT OF VICTIM RE: IDENTIFICATION OF ASSAILANT
F 505.4 Inst 1 Assaultive Character To Show Victim Acted In Conformity With Character
F 505.4 Inst 2 Evidence Of Assaultive Acts To Show Victim Acted In Accordance With Character And To Show Reasonableness Of Defendant’s Belief
Return to Series 500 Table of Contents.
F 505.3 Prior Conduct Of Victim And Associates Re: Defendant’s Subjective Belief And Objective Reasonableness
F 505.3 Inst 1 A Previously Battered Person Has The Right To Act More Quickly And Harshly In Self-Defense
*Add to CC 505:
A person who suffers from Battered Person Syndrome has a greater sensitivity to danger than does the ordinary person. As a result, a person who suffers from Battered Person Syndrome is justified in acting more quickly and taking harsher measures for her protection in the event of assault either actual or threatened, than would a person who is not subject to Battered Person Syndrome.
Evidence has been received in this case that the defendant suffers from Battered Person Syndrome and has a greater sensitivity to danger. If you believe that the defendant has a greater sensitivity to danger and, because of such sensitivity, had reasonable cause to fear greater peril in the event of an altercation with __________ <insert name of deceased or alleged assault victim>, you are to consider such sensitivity in determining whether the defendant:
1. Actually believed that the use of [deadly] force was necessary; and
2. Whether such belief was reasonable.
Points and Authorities
See FORECITE F 851.2 Inst 3; F 9.35.1a.
NOTES
[See Opinion Bank # O-136 for additional materials on BWS..]
[See also FORECITE BIBLIO 9.35.1.]
CALJIC NOTE: See FORECITE F 5.12c.
F 505.3 Inst 2 Antecedent Threats By A Third Party Or Group Justify Quicker And Harsher Measures In Self-Defense
*Add to CC 505, paragraph 7 or 8:
One who has been harmed by or received threats against [his] [her] life or person made by [a group] [or] [a person other than the victim] 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 provided the person receiving the threats reasonably associated the victim with those threats.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—CALCRIM 505, paragraph 7, limits the defendant’s right to “act more quickly” and “take greater self-defense measures” to situations where the antecedent threat was made by the alleged victim. However, this same principle applies when the threats were made by members or associates of a group who, in the defendant’s mind, was reasonably associated with the victim. (People v. Minifie (1996) 13 C4th 1055; see also Annotation, Admissibility Of Threats To Defendant Made By Third Parties To Support Claim Of Self-Defense In Criminal Prosecution For Assault Or Homicide, 55 ALR5th 449, and Later Case Service.)
Hence, where the prior assault or threat is by one party and the subsequent assault by another party, the instruction should include language such as the following: “If the assault is by a person other than the person who made the antecedent threat, then the defendant is justified in acting more quickly and taking harsher measures only if the defendant in fact believed the individual making the assault was the same individual who had previously assaulted him.” (People v. Gonzales (1992) 8 CA4th 1658, 1664.) Also note that Gonzales reaffirmed that the traditional antecedent threat instruction is “well settled.” (Gonzales, 8 CA4th at 1664.)
CALCRIM 505, paragraph 8, does address this principle but fails to include the “act more quickly” and “take greater self-defense measures” language.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 5.12g.
F 505.3 Inst 3 Antecedent Threats: Existence Of Threat To Be Determined In Light Of All The Surrounding Circumstances
*Add to CC 505:
In determining whether the defendant received a threat against his/her life or person, you must consider not just the words that were used but all of the surrounding circumstances.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Words May Be A Threat In Light Of Surrounding Circumstances—Even if the words used are ambiguous or do not literally articulate a threat, the defendant may still reasonably construe the words as a threat when considered together with all the surrounding circumstances. (See People v. Mendoza (1997) 59 CA4th 1333 [jury must consider all the surrounding circumstances in determining whether words were a “threat” per PC 422 and PC 136.1 (c)(1)].) Accordingly, when the language is ambiguous, the above instruction should be added to CC 505.
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 5.12i.
F 505.3 Inst 4 Battered Person Syndrome As Relevant To Issue Of Imminent Danger
*Add to CC 505:
Alternative a:
The imminent danger element may be satisfied when a battered woman believes she is in imminent danger of death or serious bodily harm even though her batterer is not physically abusing her at the time when the battered woman acts. This is because battered women can experience a heightened sense of imminent danger arising from the perpetual terror of physical and mental abuse. Often the terror does not wane, even when the batterer is absent or asleep.
[Source: Robinson v. State (SC 1991) 417 SE2d 88, 91.]
Alternative b:
In deciding whether the defendant had a reasonable belief of imminent danger and whether defendant actually was in such imminent danger, consider prior instances of violence or of unprovoked aggression by _________ <name of alleged victim>.
[Cf. Hubbard, Jury Instructions for Criminal Cases in South Carolina: Defendants Requested Instructions VI(A)10.5 [Prior Incidents of Violence By Assailant] p. 278 (South Carolina CLE, 1994).]
Points and Authorities
See FORECITE F 851.2 Inst 3.
CALJIC NOTE: See FORECITE F 5.12m.
F 505.4 Prior Conduct Of Victim Re: Identification Of Assailant
F 505.4 Inst 1 Assaultive Character To Show Victim Acted In Conformity With Character
*Add to CC 505:
Evidence of the character trait for violence of __________ <victim> in the form of the opinions of people who knew [him] [her] may be considered by you as relevant to the issue of whether __________ <victim> was acting in conformity with [his] [her] character trait for violence on __________, 19____.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Relevance Of Character To Identity Of Assailant – When the defendant relies on self defense the alleged victim’s character – whether aggressive or non-aggressive – is relevant. (See People v. Romero (2007) 149 CA4th 29, 37-38; see also People v. Thomas (1969) 269 CA2d 327, 329; People v. Rowland (1968) 262 CA2d 790, 797. (EC 1103(a)(1); see also Rucker and Overland, California Criminal Forms and Inst., Vol. 4 §48:7 (1993 Ed.) for alternative form of instruction relating to bad character of victim per EC 1103.)
When the issue is the accused’s state of mind, the character of the deceased may be relevant but it must be accompanied with proof that the defendant was aware of such character or else it is irrelevant. (See generally, U.S. v. James (9th Cir. 1999) 169 F3d 1210; see also FORECITE F 505.4 Inst 2.) On the other hand, where the issue is who was the aggressor, the character of the deceased—even if unknown to the defendant— is relevant to show the probability that the deceased was the aggressor. (See U.S. v. Burks (D.C. Cir. 1972) 470 F2d 432, 437.) As Wigmore put it: “It is well and generally known that there are some violent and dangerous men in this country, who are in the habit of carrying pistols, belted behind them and in their pockets, who never think of fighting in any other way than with deadly weapons, who are expert in using them, and who, especially when intoxicated, bring on and press to the extreme of outrage their deadly encounters for causes and provocations that would be regarded as utterly trivial by peaceable men; and that if one of such persons, while engaged in an angry altercation, should suddenly step back and rapidly throw his hand behind him, it might readily be understood by those who saw it to mean that he was in the act of drawing a pistol to use it. The same act by one of the great mass of our peaceable citizens who are not in the habit of carrying weapons would suggest no such thought, and in such case the pistol would have to be drawn and exhibited before any such thing would be conceived, unless there had been some very extraordinary provocation.” (II Wigmore at §246(1)(a), at 51 quoting Horbach v. State (1875) 43 Tex. 242, 250; see U.S. v. Saenz (9th Cir. 1999) 179 F3d 686, 688-89; U.S. v. James (9th Cir. 1999) 169 F3d 1210, 1214-15.)
No Reference To “The People” – The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
[Additional briefing on this issue is available to FORECITE subscribers. Brief Bank # B-840.]
CAVEAT: If the defense shows that the victim had a violent character, the prosecution may rebut with non-violent character evidence of the victim (see e.g., People v. Romero (2007) 149 CA4th 29, 37-38) and/or put on evidence of the violent character of the defendant. (See People v. Myers (2007) 148 CA4th 546, 552.) However, this rule does not apply when the defense evidence is limited to the conduct of the victim at the time of the murder. (Ibid.)
RESEARCH NOTE: See also George P. Fletcher, Self-Defense As A Justification For Punishment, 12 Cardozo L.Rev. 859 (1991).
CALJIC NOTE: See FORECITE F 5.12d.
F 505.4 Inst 2 Evidence Of Assaultive Acts To Show Victim Acted In Accordance With Character And To Show Reasonableness Of Defendant’s Belief
*Add to CC 505:
Evidence was received of assaultive, aggressive or violent acts committed by __________ <victim> upon __________ <defendant>. This evidence may be considered by you for two purposes:
(1) To prove that __________ <victim> had an assaultive, aggressive or violent character and that [he] [she] acted in conformity with such character on __________, 20_____;
(2) As relevant to __________’s <defendant> honest and reasonable belief in the necessity to defend [himself] [herself] against death or great bodily injury at the hands of __________ <victim>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Relevance Of Victim’s Character To Identity Of Assailant – See FORECITE F 505.4 Inst 1.
Relevance Of Victim’s Character To Defendant’s State Of Mind – It is well established that prior threats or violent acts by the victim are relevant to the issue of whether the defendant honestly and reasonably believed that self-defense was necessary. (See e.g., People v. Humphrey (1996) 13 Cal.4th 1073; People v. Day (1992) 2 CA4th 405, 415-16; People v. Bush (1978) 84 CA3d 294, 302-04.) Under the same rationale, the victim’s violent character or reputation – if known by the defendant – is also relevant to the defendant’s state of mind. (See e.g., U.S. v. James (9th Cir. 1999) 169 F3d 1210,1214; State v. Gantt (LA 1993) 616 So2d 1300, 1304 [defendant may introduce specific acts of victim known to defendant, which affected defendant’s state of mind and which jury could consider in determining whether defendant acted in self-defense].)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CAVEAT: See FORECITE F 505.4 Inst 1 Caveat.
CALJIC NOTE: See FORECITE F 5.12e.
