CALCRIM Brief Bank # CCB-003 [Re: F 604.5 Inst 1 In Defining Imperfect Defense As Existing Only Where Both Of The Defendant’s Beliefs Are Unreasonable, CALCRIM 604 Misstates The Law]
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I. IN DEFINING IMPERFECT DEFENSE AS EXISTING ONLY WHERE BOTH OF THE DEFENDANT’S BELIEFS ARE UNREASONABLE, CALCRIM No. 604 MISSTATES THE LAW.
The court gave instructions on self-defense and defense of another as a complete justification defense, requiring acquittal. (5RT 1458-1460, 1485-1487; CALCRIM Nos. 505, 3470.) Accordingly, the court also instructed on “imperfect” self-defense and defense of another, as a theory supporting lesser verdicts of voluntary manslaughter (count 1) and attempted voluntary manslaughter (counts 2 and 3). (5RT 1465-1466, 1471-1472; CALCRIM Nos. 571, 604; see CALCRIM No. 505, Related Issues, Imperfect Self-Defense: “Most courts hold that an instruction on imperfect self-defense is required in every case in which a court instructs on perfect self-defense.” See, e.g., People v. Viramontes, supra, 93 Cal.App.4th 1256, 1262-1263.)
“For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is ‘imperfect self-defense,’ i.e., ‘the defendant is deemed to have acted without malice and cannot be convicted of murder,’ but can be convicted of manslaughter. [Citation.]” (People v. Humphrey, supra, 13 Cal.4th 1073, 1082, fn. omitted; see also, e.g., People v. Villanueva (2008) 169 Cal.App.4th 41, 52-53 [attempted voluntary manslaughter as lesser included offense to attempted murder, based on imperfect self-defense].)
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.
Defendant properly makes this argument on appeal, despite the absence of objection below. (§ 1259; discussion at arg. I-C-1, ante.)
B. Instructions Given to Jury
As relevant here, the court gave the following instructions:
1. Murder and Attempted Murder
The court defined the charged crimes, using CALCRIM Nos. 520 and 600. (See pp. 10-12, ante.)
2. Justifiable Homicide: Self-Defense or Defense of Another
The defendant is not guilty of murder or manslaughter, attempted murder, or attempted voluntary manslaughter if he was justified in killing, or attempting to kill, someone in self-defense or defense of another. The defendant acted in lawful self-defense or defense of another if:
1. The defendant reasonably believed that he or she was in imminent danger of being killed or suffering great bodily injury.
2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger, and;
3. The defendant used no more force than was reasonably necessary to defend against that danger.
Belief in how much [sic; future] harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of great bodily injury to himself or someone else. Defendant’s belief must have been reasonable, and he must have acted only because of that belief. …
When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to, and appeared to, the defendant, and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not have to have actually existed.
[¶] … [¶]
The People have the burden of proving beyond a reasonable doubt that the killing or attempted killing was not justified. If the People have not met this burden, you must find the defendant not guilty of murder or manslaughter, attempted murder or attempted voluntary manslaughter.
(5RT 1458-1460, italics added; 2CT 355-358; CALCRIM No. 505.)
3. Voluntary Manslaughter: Imperfect Self-Defense — Lesser Included Offense
A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense or imperfect defense of another.
If you conclude the defendant acted in complete self-defense or defense of another, his action was lawful, and you must find him not guilty of any crime. The difference between complete self-defense or defense of another and imperfect self-defense or imperfect defense of another depends on whether the defendant’s belief in the need to use deadly force was reasonable.
The defendant acted in imperfect self-defense or imperfect defense of another if:
1. The defendant actually believed that he or Doe was in imminent danger of being killed or suffering great bodily injury, and;
2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger, but;
3. At least one of those beliefs was unreasonable.
[¶] … [¶]
The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense or imperfect defense of another. If the People have not met this murder [sic; burden], you must find the defendant not guilty of murder.
(5RT 1465-1466, italics added; 2CT 366-368; CALCRIM No. 571.)
4. Attempted Voluntary Manslaughter: Imperfect Self-Defense — Lesser Included Offense
An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant killed [sic] a person because he acted in imperfect self-defense or imperfect defense of another.
If you conclude the defendant acted in complete self-defense or defense of another, his action was lawful, and you must find him not guilty of any crime.
The difference between complete self-defense or defense of another and imperfect self-defense or imperfect defense of another depends on whether the defendant’s belief in the need to use deadly force was reasonable.
The defendant acted in imperfect self-defense or imperfect defense of another if:
1. The defendant took at least one direct but ineffective step towards killing a person.
2. The defendant intended to kill when he acted.
3. The defendant believed that he or Doe was in imminent danger of being killed or suffering great bodily injury, and;
4. The defendant believed that the immediate use of deadly force was necessary to defend against the danger, but;
3. The defendant’s beliefs were unreasonable.
[¶] … [¶]
The People have the burden of proving … beyond a reasonable doubt that the defendant was not acting in imperfect self-defense [or in imperfect defense of another]. If the People have not met this burden, you must find the defendant not guilty of attempted murder.
(5RT 1471-1473, italics added; 2CT 376-378; CALCRIM No. 604.)
C. In Defining Imperfect Defense to Attempted Murder, CALCRIM No. 604 Erroneously Removes the Disjunctive Statement of Defendant’s Unreasonable Beliefs.
Under the imperfect defense doctrine, unreasonable defense of self or another negates malice (People v. Humphrey, supra, 13 Cal.4th 1073, 1082; People v. Randle (2005) 35 Cal. 4th 987, 994-1001), which is an element of both murder and attempted murder. (People v. Visciotti, supra, 2 Cal.4th 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 Cal.3d 668, 674-680; People v. Villanueva, supra, 169 Cal.App.4th 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 Cal.App.3d 192, 197, italics added, citing People v. Flannel, supra, 25 Cal.3d 668, 674; see In re Christian S. (1994) 7 Cal.4th 768, 773 [preferring “actual” to “honest” belief]; People v. Viramontes, supra, 93 Cal.App.4th 1256, 1262 [under both perfect and imperfect theories, defendant “must actually believe in  the need to defend himself against  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 No. 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 No. 571, elements 1 and 2; CALCRIM No. 604, elements 3 and 4.)
At this point, the imperfect defense instructions diverge from CALCRIM No. 505, by adding the element of unreasonable belief. Inexplicably, they also diverge from each other. Under CALCRIM No. 571: “BUT [¶] 3. At least one of those beliefs was unreasonable.” (Original capitalization; italics added.) According to CALCRIM No. 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 No. 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 Cal.3d 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 Cal.App.2d 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 Cal.3d 668, 676; Roads v. Superior Court (1969) 275 Cal.App.2d 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 Nos. 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 No. 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 No. 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 No. 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, supra, 51 Cal.2d 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 Cal.App.4th 249, 256 [same].)
D. The Error Violated Both State and Federal Constitutional Guarantees.
The Supreme Court has acknowledged manslaughter instructional error in a murder prosecution may trigger federal constitutional concerns, while saying otherwise in dictum. The majority has not addressed the issue as a general principle, so this court is free to do so. (Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1196.)
In People v. Breverman, supra, 19 Cal.4th 142, the majority held that an erroneous failure to instruct on “every supportable theory of the lesser included offense of voluntary manslaughter” violated the state constitutional duty “to instruct fully on all lesser included offenses suggested by the evidence ….” (Id. at 149, 154-162.) As for whether the error was also one of federal dimension (cf. People v. Flood, supra, 18 Cal.4th 470 [elemental instructional error violates California and federal constitutions]), the majority rejected two — of four — theories: (1) To the extent the error involved failure to instruct (or misinstruction) on a lesser offense, there is no “federal constitutional right to instructions on lesser included offenses in noncapital cases.” (Id. at 165-170.) (2) Lesser offense instructional error violates no federal constitutional liberty interest in “the exercise of normative jury discretion.” (Id. at 170-173.)
In dissent, Justice Kennard endorsed two additional federal theories; defendant relies on both here:
(3) “[W]hen a defendant is charged with murder and there is sufficient evidence to support a conviction for voluntary manslaughter on a ‘heat of passion’ theory, failure to instruct on that theory violates the defendant’s federal constitutional rights to a jury trial and to due process of law.” (Id. at 187, dis. opn. of Kennard, J., discussion at 188-190 [“Given the manner in which California has structured the relationship between murder and voluntary manslaughter, the complete definition of malice is the intent to kill or the intent to do a dangerous act with conscious disregard of its danger plus the absence of both heat of passion and unreasonable self-defense” (original italics)]; Mullaney v. Wilbur, supra, 421 U.S. 684, 704 [under such a system, due process requires state to prove absence of passion/provocation]; United States v. Gaudin, supra, 515 U.S. 506, 522-523 [Sixth Amendment right to jury determination re each element].)
(4) “Due process requires fundamental fairness in the criminal procedures by which a defendant is convicted of a crime. [Citations.]” (People v. Breverman, supra, 19 Cal.4th 142, 190, dis. opn. of Kennard, J., citing United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 872, and Spencer v. Texas (1967) 385 U.S. 554, 563-564.) “It is manifestly unjust to permit the state to use the jury’s ignorance of the elements of voluntary manslaughter to convict a defendant of murder when the jury, had it known of voluntary manslaughter, could have found the additional circumstance of heat of passion that would have instead made the defendant liable only for that lesser crime.” (Id. at 191.)
Finding Justice Kennard’s constitutional analysis insufficiently briefed by the defendant, the majority did not address it: “The issues presented by such a claim must properly await a case in which they have been clearly raised and fully briefed.” (Id. at 170, fn. 19; compare id. at 191-194 [Justice Kennard found briefing adequate to raise issue].)
Two years later, Justice Kennard wrote for the majority in People v. Lasko (2000) 23 Cal.4th 101. Because “intent to kill is not a necessary element of the crime of voluntary manslaughter,” the court found a contrary instruction erroneous. (Id. at 111.) Following the Breverman majority, the opinion declared the error one of state law in “failing to properly instruct the jury on a lesser included offense ….” (Ibid.) Turning to her Breverman dissent, Justice Kennard noted the federal claim was now fully briefed. (Id. at 113.) But she distinguished the two cases, finding no federal error on Lasko’s facts:
In contrast to People v. Breverman, supra, 19 Cal.4th 142, the trial court here instructed the jury on voluntary manslaughter, correctly explaining to the jury that a killing in the heat of passion is not murder. The court erred only in telling the jury that to convict defendant of voluntary manslaughter, the jury had to find that defendant intended to kill the victim. Defendant insists this instruction could have led the jury to conclude that if he lacked an intent to kill, it had to find him guilty of the more serious crime of murder. But, as previously explained, the trial court’s instructions taken as a whole do not support this assertion. Thus, the court’s instructional error did not violate defendant’s federal constitutional rights to trial by jury or to due process of law.
The error here is materially distinct. In Lasko, the instructions correctly defined heat of passion theory and explained its relationship to the malice element of murder; the error was confined to an erroneous element of the lesser offense. By contrast, CALCRIM No. 604 materially misstates the nature of imperfect defense as a defense to malice, by making it overly difficult to establish — and malice easier to prove. If jurors accepted the imperfect defense theory (i.e., found reasonable doubt) as to only one of the two beliefs at issue (imminence or necessity), they would find defendant guilty of attempted murder. (See discussion at arg. C, ante; compare fn. 17 on previous page.) Thus, under Justice Kennard’s analysis — discussed in Breverman, noted in Lasko, and not rejected in this context by a Supreme Court majority — the error denied defendant his Sixth and Fourteenth Amendment rights to jury trial and due process.
On the same day as Lasko, the Supreme Court issued its opinion in People v. Blakeley (2000) 23 Cal.4th 82, holding the trial court erroneously failed to instruct on imperfect self-defense. (Id. at 93.) Citing the Breverman majority opinion, the court treated the error as one of state law — without noting any federal claim. (Ibid.) For all that appears in the opinion, the defendant made no such claim.
Defendant incorporates his earlier discussion of People v. Rios, supra, in argument I. “[T]he People must establish malice, including, in appropriate cases, the absence of provocation [and imperfect self-defense], as an essential element of murder.” (23 Cal.4th 450, 469, original italics.) “If the issue of provocation or imperfect self-defense is thus ‘properly presented’ in a murder case [citation], the People must prove beyond reasonable doubt that these circumstances were lacking in order to establish the murder element of malice. [Citations.]” (Id. at 462, original italics.)
Addressing a non-instructional issue in People v. Martinez, supra, 31 Cal.4th 673, the majority stated, “[T]he absence of imperfect self-defense or voluntary intoxication is not an element of the offense of murder which must be proved by the People. Instead, these doctrines are ‘mitigating circumstances,’ which may reduce murder to manslaughter by negating malice. [Citing People v. Rios, supra, 23 Cal.4th 450, 461.]” (31 Cal.4th 673, 685, original italics.) Justice Kennard identified a problem in the majority’s analysis: together, the statutory homicide scheme and case law provide that “[m]alice as an element of the crime of murder under California law includes as an essential component the absence of imperfect self-defense.” (People v. Martinez, supra, 31 Cal.4th 673, 705-707, conc. & dis. opn. of Kennard, J.) This triggers federal constitutional concerns:
[I]t is the prosecution, not the defense, that has the burden of proof on the issue of imperfect self-defense. (People v. Rios, supra, 23 Cal.4th at p. 462.) When a factual circumstance negates an element of the crime, as imperfect self-defense negates malice, the federal Constitution’s due process guarantee requires the prosecution to bear the burden of proving the absence of that circumstance beyond a reasonable doubt. (Mullaney v. Wilbur (1975) 421 U.S. 684, 704; Walker v. Endell (9th Cir. 1988) 850 F.2d 470, 472.) The elements of a crime are “[t]hose constituent parts of a crime which must be proved by the prosecution to sustain a conviction.” (Black’s Law Dictionary (5th ed. 1979) p. 467.) To sustain a conviction for murder under California law, the prosecution must prove malice and, in so doing, must prove the absence of imperfect self-defense. Accordingly, the absence of imperfect self-defense is an element, or an essential component of an element, of the offense of murder.
(Id. at 707.)
In People v. Randle, supra, 35 Cal.4th 987, the court recognized the doctrine of imperfect defense of others. (Id. at 990, 993-1001.) The trial court erred in refusing to instruct the jury on that principle. (Id. at 993, 1001-1003.) Citing Blakely’s reliance on Breverman, the opinion reviewed the issue under California law: “Any error in failing to instruct on imperfect defense of others is state law error alone, and thus subject, under article VI, section 13 of the California Constitution, to the harmless error test articulated in People v. Watson (1956) 46 Cal.2d 818, 836.” (Id. at 1003.) But just like Blakely, Randle did not examine whether the error also denied federal rights. The word “federal” is absent from the opinion, with no indication that the defendant raised the point. In any event, because the court found the error prejudicial under the less rigorous Watson test (id. at 1004), it did not need to address any federal constitutional question. (Cf. People v. Russell (2006) 144 Cal.App.4th 1415, 1431-1432.)
7. This Court Should Follow Justice Kennard’s Analysis in Breverman, as Generally Accepted in Lasko.
With the exception of Lasko — materially distinguishable from defendant’s case (see pp. 56-58, ante) — no Supreme Court majority opinion provides useful precedent for defendant’s federal claim, as none have addressed it. (People v. Knoller, supra, 41 Cal.4th 139, 155.) The dicta limitation is important, for several reasons.
First, even where the majority reaches one conclusion as a matter of state law (for example, in Martinez: absence of imperfect defense is not a murder element), it may reach another when confronting a federal constitutional analysis. That is essentially what occurred in People v. Seel (2004) 34 Cal.4th 535, where the Supreme Court reconsidered — and discarded — its still-recent holding in People v. Bright (1998) 12 Cal.4th 652, 656-657. In the earlier case, the court had reviewed the statutory language and legislative history of section 664, subdivision (a), concluding that a premeditation allegation was a mere “penalty provision and not an element of the crime. (Bright, supra, 12 Cal.4th at p. 669.)” (34 Cal.4th 535, 543.) Notably, Justice Kennard dissented in Bright, suggesting that even a penalty provision may trigger the federal jury trial guarantee. (12 Cal.4th 652, 659, dis. opn. of Kennard, J.; see People v. Seel, supra, 34 Cal.4th 535, 551, conc. opn. of Kennard, J.) Squarely faced with the claim that recent United States Supreme Court authority dictated a different analysis, Seel restated the issue: “Does section 664(a), though designated a penalty provision (Bright, supra, 12 Cal.4th at p. 669), constitute an element of an offense for [federal] double jeopardy purposes? [Citing Apprendi v. New Jersey (1999) 530 U.S. 466, 494, fn. 19.]) (34 Cal.4th 535, 541.) The court concluded: “Apprendi now compels the conclusion that the premeditation allegation (§ 664(a)) constitutes an element of an offense.” (Id. at 550; cf., e.g., People v. Wims (1995) 10 Cal.4th 293, 303-314 [majority found instructional error re weapon enhancement only state law error]; compare id. at 317-318, 320-327, conc. & dis. opn. of Kennard, J. [Justice Kennard would declare same error denied federal due process and jury trial]; People v. Sengpadychith (2001) 26 Cal.4th 316, 325-326[with Justice Kennard writing for majority, Supreme Court effectively overruled Wims in part, based on Apprendi].)
Second, in both Breverman and Lasko, the court expressly acknowledged the federal constitutional arguments defendant raises here and did not reject them as a general principle. Nor has any Court of Appeal. (Cf. People v. Russell, supra, 144 Cal.App.4th 1415, 1431-1432 [citing Randle, Blakeley, and Breverman as applying Watson standard]; People v. Viramontes, supra, 93 Cal.App.4th 1256, 1263-1264 [failure to instruct on imperfect self-defense held prejudicial under state law; opinion cited Breverman but did not address any federal claim].) Thus, this court should resolve defendant’s claims. (See People v. Breverman, supra, 19 Cal.4th 142, 170, fn. 19: “The issues presented by such a claim must properly await a case in which they have been clearly raised and fully briefed.”)
Third, although as a single-justice opinion Justice Kennard’s Breverman analysis does not have the force of stare decisis (People v. Franz (2001) 88 Cal.App.4th 1426, 1442), it offers something else. Even judicial dictum, “while not controlling authority, carries persuasive weight and should be followed where it demonstrates a thorough analysis of the issue or reflects compelling logic. [Citations.]” (Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266, 297.) To date, the most complete analysis of the interplay between federal constitutional requirements and murder-manslaughter instructional error remains the Breverman dissent.
Finally, a recent United States Supreme Court decision provided implicit support for Justice Kennard’s approach. In a per curiam opinion in Middleton v. McNeil, supra, 541 U.S. 433, 437-438, the court found that an erroneous imperfect self-defense instruction did not require reversal because — considering the instructions as a whole and the attorneys’ arguments — there was no “reasonable likelihood” the jurors misunderstood the doctrine. But the decision is noteworthy for what it did not say — that this sort of claim must be confined to state law because it involves lesser offense instructions in a non-capital case. Instead, the Supreme Court directly addressed the constitutional claim, implicitly recognizing that due process requires accurate imperfect self-defense instructions. “In a criminal trial, the State must prove every element of the offense, and a jury instruction violates due process if it fails to give effect to that requirement. [Citation.]” (Id. at 437.)
Here, the jury heard only one definition of imperfect defense to attempted murder, and it was materially wrong — to defendant’s prejudice on the issue of malice. As Justice Kennard has explained, the error violated defendant’s rights to due process and trial by jury. (People v. Breverman, supra, 19 Cal.4th 142, 187-191, dis. opn. of Kennard, J.; cf. People v. Flannel, supra, 25 Cal.3d 668, 680: “the state has no legitimate interest in obtaining a conviction of murder when, by virtue of defendant’s unreasonable belief, the jury entertains a reasonable doubt whether defendant harbored malice.”)
E. The Attempted Murder Judgments Must Be Reversed.
Because the error violated defendant’s federal rights, the state must show beyond a reasonable doubt that the error did not contribute to the verdict. (Chapman v. California, supra, 386 U.S. 18, 24; discussion of standard at p. 43, ante.) Even under the state Watson test, reversal is necessary. (Discussion of standard at pp. 46-47, ante.) “Since the defenses at issue negate one of the elements of the offense, defendant needed only to raise a reasonable doubt regarding the existence of that element. [Citation.]” (People v. Russell, supra, 144 Cal.App.4th 1415, 1433.) The evidence allowed for reasonable doubt as to either sub-element at issue: whether defendant — in response to a sudden physical attack — reasonably perceived imminent serious bodily danger to himself and Doe; whether — with evidence suggesting another source of gunfire — he reasonably believed in the necessity of immediate deadly force in defense. (See discussion of evidence at pp. 43-46, ante; cf. People v. Randle, supra, 35 Cal.4th 987, 1004 [where evidence is “susceptible of the interpretation” consistent with imperfect defense, failure to instruct on doctrine is prejudicial].) A juror following CALCRIM No. 604 would incorrectly understand that reasonable doubt on only one element proved attempted murder. The instruction misdefined the test for imperfect defense, and no other instruction provided a clue as to the error.
Nor did the closing arguments. The prosecutor initially ignored the imperfect defense doctrine. (6RT 1521.) Without discussing specific instructional elements, defense counsel asked jurors to consider defense of others, self-defense, and whether those theories were “unreasonable[.]” (6RT 1536.) In rebuttal, the prosecutor argued both beliefs were unreasonable, so the jury could not find self-defense. (6RT 1551-1553.) But only the mistaken instruction told jurors — incorrectly — what to do if they should find a single belief unreasonable.