Return to CALJIC Part 5-8 – Contents
F 5.56a
Mutual Combat
*Add to CJ 5.56:
For purposes of this instruction the term mutual combat means a fight begun or continued by mutual prearrangement, agreement or consent.
Points and Authorities
See People v. Rogers (58) 164 CA2d 555, 558 [331 P2d 163]; see also People v. Fowler (1918) 178 C 657, 671 [174 P 892] [“…the phrase ‘mutual combat’ has been in general use to designate the branch of the law of self-defense relating to homicides committed in the course of a duel or other fight begun or continued by mutual consent or agreement, express or implied.”].)
F 5.56b
Mutual Combat: Non-Deadly Combatant
Need Not Withdraw From Deadly Counter-Attack
*Add to CJ 5.56:
A person who engages in non-deadly mutual combat, such as a fist fight, need not withdraw if [his] [her] opponent escalates the combat by the sudden use of deadly force.
Points and Authorities
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 first, in good faith, declines further combat and fairly notifies the adversary that he has abandoned the affray. (People v. Hecker (1895) 109 C 451, 463 [42 P 307].) This rule is embodied in CJ 5.54.
However, when the victim of a simple assault responds in a sudden and deadly counter-assault, the original aggressor need not attempt to withdraw and may use reasonable necessary force in self-defense. (People v. Quach (2004) 116 CA4th 294 [expressly holding that CJ 5.56 is wrong]; People v. Gleghorn (87) 193 CA3d 196, 201 [238 CR 82]; People v. Sawyer (67) 256 CA2d 66, 75 [63 CR 749].) CJ 5.54 does not include this exception to the general rule and therefore, when appropriate, CJ 5.54 should be supplemented.
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 generally, FORECITE PG VII(C).]
NOTES
[See Brief Bank # B-519 for additional briefing on this issue.]
