SERIES 600 ATTEMPTED MURDER
TABLE OF CONTENTS
F 601 ATTEMPTED MURDER: DELIBERATION AND PREMEDITATION
F 602 ATTEMPTED MURDER: PEACE OFFICER OR FIREFIGHTER
F 603 ATTEMPTED VOLUNTARY MANSLAUGHTER: HEAT OF PASSION—LESSER INCLUDED OFFENSE
F 603 NOTES
F 604 ATTEMPTED VOLUNTARY MANSLAUGHTER: IMPERFECT SELF-DEFENSE—LESSER INCLUDED OFFENSE
F 604 Inst 1 In Defining Imperfect Defense As Existing Only Where Both Of The Defendant’s Beliefs Are Unreasonable, CALCRIM 604 Misstates The Law
F 604 Note 1 Additional Issues Regarding Imperfect Self-Defense
Return to Series 600 Table of Contents.
F 601 Attempted Murder: Deliberation And Premeditation
See FORECITE F 521; F 8.67.
F 602 Attempted Murder: Peace Officer Or Firefighter
See FORECITE F 600.
F 603 Attempted Voluntary Manslaughter: Heat Of Passion—Lesser Included Offense
See FORECITE 570.1-570.9.
F 603 NOTES
See FORECITE F 570 Notes.
F 604 Attempted Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense
See FORECITE F 571.
F 604 Inst 1 In Defining Imperfect Defense As Existing Only Where Both Of The Defendant’s Beliefs Are Unreasonable, CALCRIM 604 Misstates The Law
[ACKNOWLEDGMENT: This entry was adapted from briefing provided by Stephen Greenberg.]
*Modify CC 604, Element 5, as follows:
[Replace: 5. The defendant’s beliefs were unreasonable.]
With: 5. At least one of the beliefs set forth in Elements 3 and 4 above was unreasonable.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Defining Imperfect Defense As Existing Only Where Both Of The Defendant’s Beliefs Are Unreasonable, CALCRIM 604 Misstates The Law – While the imperfect defense doctrine is identical as between murder and attempted murder, the same cannot be said for the pattern instructions. If either aspect of the defendant’s belief in the need for defense is unreasonable, the lesser verdict is proper. But under CALCRIM No. 604, the test applies to both beliefs — facilitating an attempted murder conviction.
Under the imperfect defense doctrine, unreasonable defense of self or another negates malice (People v. Humphrey (1996) 13 C4th 1073, 1082; People v. Randle (2005) 35 C 4th 987, 994-1001), which is an element of both murder and attempted murder. (People v. Visciotti (1992) 2 C4th 1, 56, 61.) Logically, the doctrine must be identical as applied to both crimes; that is, an imperfect defense to the defendant’s homicidal act exists — or doesn’t — independently of the victim’s survival or death. If the defendant’s belief in the need for lethal defense was reasonable, the act was justifiable; the result, acquittal. If that belief was unreasonable, what would otherwise be murder or attempted murder is reduced to voluntary manslaughter if the victim died; to attempted voluntary manslaughter, if he or she lived. (People v. Flannel (1979) 25 C3d 668, 674-680; People v. Villanueva (2008) 169 CA4th 41, 52-53.)
But “belief in the need for lethal defense” is a simplification. The courts have identified two elements: “the defendant must honestly (if unreasonably) believe that serious injury is imminent and that lethal force is necessary. [Citation.]” (People v. Uriarte< (1990) 223 CA3d 192, 197, italics added, citing People v. Flannel, supra, 25 C3d 668, 674; see u>In re Christian S. (1994) 7 C4th 768, 773 [preferring “actual” to “honest” belief]; People v. Viramontes (2001) 93 CA4th 1256, 1262 [under both perfect and imperfect theories, defendant “must actually believe in [1] the need to defend himself against [2] imminent peril to life or great bodily injury”].)
These elements are defined as such in the CALCRIM instructions. For justifiable defense in a homicide or attempted homicide case, the defendant must actually and reasonably believe in (1) imminent danger of death or great bodily injury and (2) the necessity of immediate deadly force in defense. (CALCRIM 505, elements 1 and 2.) As for imperfect defense, CALCRIM offers two different instructions: one for a charged murder, the other for an attempted murder case. The subjective elements remain the same: the defendant must have “actually believed” in imminent danger of death or great bodily injury and the necessity of immediate deadly force in defense. (CALCRIM 571, elements 1 and 2; CALCRIM 604, elements 3 and 4.)
At this point, the imperfect defense instructions diverge from CALCRIM 505, by adding the element of unreasonable belief. Inexplicably, they also diverge from each other. Under CALCRIM 571: “BUT [¶] 3. At least one of those beliefs was unreasonable.” (Original capitalization; italics added.) According to CALCRIM 604: “BUT [¶] 5. The defendant’s beliefs were unreasonable.” (Original capitalization; italics added.) Only one formulation can be correct, and it is the former; CALCRIM 604 is a misstatement of law.
Under perfect and imperfect defense theories the defendant must actually believe in both imminence and necessity. If either belief is unreasonable, malice is negated, and the result is manslaughter or attempted manslaughter. In such a case, the defendant “fails to meet the standard of a reasonable person.'” (People v. Flannel, supra, 25 C3d 668, 675.) That is because “the proper offense in a case of unreasonable belief is manslaughter.” (Ibid., citing this court’s opinion in People v. Lewis (1960) 186 CA2d 585, 598.) So where an actual belief in defense circumstances exists, “but without the presence of all the ingredients necessary to excuse the act on the ground of self-defense, the killing is manslaughter.” (Ibid., quotations omitted, italics added, also quoted in Flannel, 25 C3d 668, 676; Roads v. Superior Court (1969) 275 CA2d 593, 597, fn. 2.)
Of course, none of these defense elements must be established according to an evidentiary burden; instead, the prosecution must prove their absence. (CALCRIM 505, 571, 604, final ¶¶.) Thus, where the prosecution shows beyond a reasonable doubt that either of the defendant’s beliefs (in imminence or necessity) was unreasonable, a claim of perfect defense fails — but imperfect defense is established. In a murder prosecution, CALCRIM 571 makes that clear, providing that “[a]t least one of [the defendant’s] beliefs was unreasonable.” The result would be a voluntary manslaughter verdict.
But under CALCRIM 604, reasonable doubt as to whether one belief was reasonable would result in an attempted murder conviction; only the same finding as to both beliefs would mitigate the verdict. CALCRIM 571’s accurate statement of law does not cure its counterpart’s error. On the contrary, even if jurors were to notice the distinction, they need not guess that either formulation was wrong. (Cf. People v. Dewberry (1959) 51 C2d 548, 557 [where instructions state rule as applicable in one circumstance, jury reasonably may conclude rule is inapplicable in another]; People v. Bell (2004) 118 CA4th 249, 256 [same].)
Briefing Available – For additional briefing on this issue, see Brief Bank # CCB-003.
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.
F 604 Note 1 Additional Issues Regarding Imperfect Self-Defense
See FORECITE F 571 et seq.
