CALJIC 5.54 is derived from Penal Code § 197(3) which states that a homicide is not justifiable if the defendant was “the assailant” unless the defendant “really and in good faith endeavored to decline any further struggle before the homicide was committed…” However, Penal Code § 197 “does no more than codify the common law and should be read in light thereof.” (People v. Jones, supra, 191 Cal.App.2d at 481; see also, People v. Ceballos, supra, 12 Cal.3d at 478.) Thus, the aggressor instruction should reflect fully and accurately the existing common law as it related to the evidence before the jury.
An analysis of the common law rules of self-defense demonstrates that Penal Code § 197 and CALJIC 5.56 are incomplete statements of the law with respect to a defendant who initiates or culpably participates in a non-deadly encounter. In California, the courts have adopted the common law “no retreat” rule with respect to self-defense in general. Under this rule, one who is himself blameless need not, in common law terms, “retreat to the wall” before using non-deadly force to repel a non-deadly attack or deadly force to repel a deadly attack. (1 Witkin, California Criminal Law, 2d Ed., 1988, § 244, pp. 279-280.) Under this rule, however, one who unlawfully enters the encounter by aggression, provocation or mutual combat, cannot normally benefit from the no retreat law. (Id. at § 245, p. 280.)
However, an important exception to this rule exists at common law and has been recognized by the California courts. If the individual unlawfully initiated or joined in the contest with no thought of causing death or great bodily harm (e.g., a fist fight), then his fault in doing so is entirely excused if the other participant willfully escalates it to a deadly encounter. Moreover, if the unanticipated escalation of the combat is so sudden it appears that there is no reasonable opportunity to retreat, then the one who is so attacked may justifiably defend himself with deadly force. (Perkins and Boyce Criminal Law, 3d Ed., 1982, Chapter 10, p. 1128-1129.) “‘[T]he accused already has his “back to the wall” if the assault is of such sudden and vengeful character that he cannot retire without increasing his danger or exposure to death or serious injury…’ [Citations.]” (Id. At 1129, fn. 91.)
The logical underpinnings of this rule are obvious. When a non-deadly assault is returned with a violence manifestly disproportionate to that of the assault “the character of the combat is essentially changed.” (State v. Hill (1839) 20 N.C. 629, 639, cited in Perkins, supra, at p. 1142, fn. 76.) In other words, the one who changes an ordinary fistfight into a deadly encounter has unjustifiably attacked his opponent with deadly force. “While statistics are not available it is a safe estimate that not once in a thousand times is the ordinary angry slap or fist-to-cuffs result in the use of deadly force on either side. On the rare occasion when this does happen, only he who unexpectedly changed the ordinary encounter into a life and death struggle should be regarded as having brought about mortal combat.” (Perkins, supra, at pp. 1141-1142.) Thus, the original wrongdoer is in reality guilty of only simple assault and battery and “should not be held criminally responsible for a homicide which was forced upon him by the greater wrong of the other party.” (Ibid.)
This common law rule was articulated by the California Supreme Court in People v. Hecker (1895) 109 C 451:
“Where one is the first wrongdoer, but his unlawful act is not felonious, as a simple assault upon the person of another,…and this unlawful act is met by a counter assault of a deadly character, the right of self-defense to the first wrongdoer is not lost… If…the counter assault be so sudden and perilous that no opportunity be given to decline or to make known to his adversary his willingness to decline the strife, if he cannot retreat with safety, then as the greater wrong of the deadly assault is upon his opponent, he would be justified in slaying forthwith, in self-defense. [Citations.]”
Subsequent opinions of California courts of appeal have reaffirmed this principle. “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 has first, in good faith, declined further combat, and has fairly notified him that he has abandoned the affray. [Citation to Hecker.] However, when the victim of a simple assault responds in a sudden and deadly encounter assault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense.” (People v. Gleghorn (1987) 193 Cal.App.3d 196, 201; see also, People v. Sawyer (1967) 256 Cal.App.2d 66, 75.)
The applicability of this rule in the present case is apparent. If the jury accepted the testimony of Mr. F and Mr. O that Doe initiated the altercation by “punching and slapping” Terry M through the pickup truck window, the jury would necessarily have found that Doe was the aggressor. In this event, CALJIC 5.54 required the jury to reject any claim of self-defense unless Doe withdrew and informed the others of his desire to end the encounter. (CT 333.) However, at the time of the alleged initiation of the aggression by punching and slapping Terry M, Doe was engaged in non-deadly aggression (a fistfight). And, the Hecker rule was clearly appropriate because there was evidence that Mr. M escalated the fistfight into a deadly encounter by using the baseball bat. [Footnote 28] The absence of an instruction on the Hecker principle was, therefore, clear error.
It was the trial court’s obligation to correct this error sua sponte. Once it determined that the jury should be instructed on the principles of self-defense, the court was obligated to instruct correctly upon that defense. The trial court is obligated to correct or tailor an instruction to the particular facts of the case even though the instruction submitted by the defense was incorrect. (People v. Malone (1988) 47 Cal.3d 1, 49; People v. Whitehorn (1963) 60 Cal.2d 256, 265; People v, Cole (1988) 202 Cal.App.3d 1439, 1446; People v. Bolden (1990) 217 Cal.App.3d 1591, 1597.)
Here, CALJIC was clearly incorrect because it informed the jury that the aggressor must always withdraw.
And, because the result of this error was to deprive John Doe of the primary defense upon which he relied at trial, the federal constitutional rights to due process, trial by jury and compulsory process were implicated (see p. 72, above). (6th and 14th Amendments.) Therefore, the judgment should be reversed. (See pp. 70-72, above.)
The jury, of course, may believe and/or reject selected portions of any witness’ testimony. (People v. Thornton, supra, 11 C3d at 755.)
The jury also could have concluded that Mr. O and Mr. F—who were much larger than the Doe brothers (Statement of Facts, pp. 10-11)—escalated the fight to a deadly encounter when they arrived and began punching the Doe brothers.