Brief Bank # B-538
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA ) NO.
Plaintiff/Respondent ) 4th DCA DO14513
HOWARD B. ) San Diego CR 113143
PETITIONER’S PETITION FOR REVIEW
From the Court of Appeal, Fourth Appellate District
CHARLES M. SEVILLA
Cleary & Sevilla
1010 Second Avenue, Suite 1601
San Diego, California 92101
Telephone: (619) 232‑2222
Attorneys for Petitioner B.
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA ) NO.
Plaintiff/Respondent ) 4th DCA DO14513
HOWARD B. ) San Diego CR 113143
PETITIONER’S PETITION FOR REVIEW
Petitioner respectfully petitions this court to review the published decision of January 13, 1993, by the Fourth Appellate District, Division One, which affirmed petitioner’s conviction for voluntary manslaughter. The opinion is attached as Exhibit A. This petition is made pursuant to Rule 29 of the Rules of Court. It presents a serious issue of law for which there is conflicting treatment by the courts of appeal (and perhaps as well by this Court). The law governing lesser included offense instructions in the most serious of criminal cases, as indicated by the opinion of the Court of Appeal in this case, is now directed by contradictory case law and is in pressing need of clarification by this court. Also, as will be discussed, it is related to People v. Montoya (S030181; review granted on January 28, 1993).
The charge was murder. Petitioner was acquitted of the charge. He is serving a ten-year sentence based upon a jury finding on an uncharged offense, voluntary manslaughter, that was presented to the jury at the behest of the prosecution and over the objection of petitioner. The manslaughter verdict form was predicated on two “defense” theories of a non-malicious intentional killing ‑‑ heat of passion and imperfect self‑defense ‑‑ given over objection of the petitioner.
Petitioner’s defense was accident. The prosecution sought to prove first or second degree murder and never argued for voluntary manslaughter. It sought and obtained the “defense” theory instructions on voluntary manslaughter as a tactic to obtain a compromise verdict in case it could not prove the charged offense to the jury’s satisfaction.
This petition presents a simple question: when murder is charged, may a trial court force “defense” theory intent to kill instructions upon an objecting defendant whose defense is accident? The answer is not so simple, as the opinion of the Court of Appeal makes plain. As the Court below stated, “The issue is complex. It is also troubling because there appears to be inconsistent California Supreme Court and Court of Appeal opinions on the matter (some arguably supportive of petitioner’s contention) and because of the ominous implications for the administration of justice should appellant’s position prevail.” (Exhibit A, 8).
As will be shown, there is nothing “ominous” in sustaining petitioner’s view of the law. First, petitioner’s view more accurately reflects the current state of the law than the opinion below; second, there can be no injury to the administration of justice where, in circumstances such as this, a court declines to overrule a defendant’s objection to voluntary manslaughter instructions because the instructions would be based upon non‑malicious intent‑to‑kill “defenses” the defendant is not only not urging, but are factually inconsistent with his defense of accidental shooting. Further, this court in the two leading lesser included defense cases has ruled that heat of passion and imperfect self‑defense are inappropriate to give sua sponte when the defense in accident. See People v. Sedeno (1974) 10 Cal.3d 703, and People v. Wickersham (1982) 32 Cal.3d 307. If improperly given sua sponte, a fortiori they are improperly given over defense objection.
The charge here was murder and only murder. Instructions on first and second degree murder were properly given. Further, involuntary manslaughter instructions were also given based upon petitioner’s alleged brandishing a weapon during his confrontation with Mr. S.; petitioner voiced no objection to it. This was no “all or nothing” gamble by petitioner (People v. St. Martin (1970) 1 Cal.3d 524, 533).
While the Court of Appeal recognized the divergent textual passages from cases on this issue, it erroneously seized upon dictum from footnote 7 in People v. Sedeno (1974) 10 Cal.3d 703, 717. Specifically,
The Sedeno court was sensitive to this potential problem. At the end of its discussion on the obligation to instruct on defenses and before applying the law announced to the particular facts of the case, the court inserted footnote seven. The first paragraph of that footnote emphasizes the duty of counsel to request all instructions necessary to explain the legal theories relied upon. The footnote states, however, if the court finds substantial evidence of a defense inconsistent with that advanced by the defendant, the court should inquire whether counsel wishes that instruction given. The court in the second paragraph of the footnote states: “When the charged offense is one that is divided into degrees or encompasses lesser offenses, and there is evidence from which the jury could conclude that the lesser offense has been committed, the court must instruct on the alternative theory even if it is inconsistent with the defense elected by the defendant under the rules obliging the court to instruct on lesser included offenses discussed supra.” (People v. Sedeno, supra, 10 Cal.3d at p. 717, fn. 7.)
Clearly this statement means that when evidence of a partial “defense” exists that would reduce a greater offense to a lesser, the court is required to instruct on that lesser included offense and the theories supporting it even if inconsistent with the defendant’s theory of the case. Were this not so, the absolute requirement for sua sponte instruction on lesser included offenses would be swallowed by the rule that the court is not to instruct on defenses inconsistent with the defendant’s theory of the case.
We conclude, therefore, the reasoning of Sedeno would reject petitioner’s claim the trial court erred in instructing over his objection on the lesser included offense of voluntary manslaughter based on theories of heat of passion and unreasonable self‑defense. While those “defenses” were inconsistent with petitioner’s claim of accident, they were supported by substantial evidence and raised a question as to whether all the elements of the charged offense were present. The trial court was required to instruct on voluntary manslaughter based on both heat of passion and unreasonable self‑defense. Appellant could not, based on his approach to the case, deny to the jury in reaching its verdict consideration of appropriate intermediate offenses. Courtrooms are not gambling halls. (Exhibit A, 12‑13; emphasis in original).
The Court then goes on to mummify and inter People v. Wickersham (1982) 32 Cal.3d 307, among the antiquities of judicial history, finding it “inexplicable and inconsistent with” with its Sedeno analysis. (Exhibit A, 15). It also finds this Court’s recent decision in People v. Saille (1991) 54 Cal.3d 1103, “troubling” in that the case held that voluntary intoxication, which if proved may rebut the intent element of murder, does not require sua sponte lesser included instructions [LIO] by the trial court. (Exhibit A, 18, n. 2). The opinion then cites Court of Appeal opinions which support petitioner’s version of the law. (Exhibit A, 17-18).
To say the least, the law in this area is confused and contradictory. This Court’s more recent pronouncements appropriately focus and give weight to defense counsel’s competent choice in the matter. See People v. Hardy (1992) 2 Cal.4th 86, 184, where this Court rejected an argument of a trial court’s duty to give sua sponte diminished capacity instructions:
“The trial court has a sua sponte duty to instruct on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present and there is evidence that would justify a conviction of such a lesser offense.” (Cooper, supra, 53 Cal.3d at p. 827.) A trial court need not deliver the instruction, however, where a defendant expresses a deliberate tactical purpose for objecting to the instruction. (Ibid; People v. Gallego (1990) 52 Cal.3d 115, 182‑183 [276 Cal.Rptr. 679, 802 P.2d 169].) The record clearly shows such a waiver as to [defendant] Reilly, whose counsel unequivocally indicated that he did not want instructions on diminished capacity or voluntary intoxication because those defenses were inconsistent with Reilly’s proffered defense in the guilt phase. [italic emphasis supplied].
The essence of one of the issues raised here is: when the prosecution evidence supports instructions on the charged offense as well as lesser included offenses, the trial court has a sua sponte duty to give the LIO instructions. But where the LIO instruction is based upon defense theories which the defendant competently rejects as inconsistent with his defense and is not pressing to the jury, a court should not give such instructions. If the prosecution wishes to guarantee that the LIO is part of its case to present to the jury, it may charge the offenses in the alternative (see footnote 2 supra). By charging the LIO, the prosecution’s ability to achieve tactical advantage is reduced. If the factual basis for the LIO exists, it will survive a motion for judgment of acquittal and the court may give the LIO verdict form to the jury. Such a rule continues the policy that juries will be permitted to reach those verdicts supported by the evidence, including LIOs, but it will also ensure that defendants do not face the Catch-22 dilemma of being force-fed “defense-based” uncharged LlOs over objection which undermine the actual defense presented and encourage compromise verdicts.
As the Court of Appeal opinion notes, the course of the law since Sedeno has not run true in the California appellate courts, and this Court must clarify an area of law with conflicting opinions at every level. The mischief of continued ambiguity is certain: in the most serious criminal cases of this State, courts and counsel will continue to guess at which line of case authority to follow with potentially disastrous consequences for the citizen-accused and California criminal justice.
1. THE LAW GOVERNING LESSER INCLUDED OFFENSE INSTRUCTIONS IN CRIMINAL CASES, AS INDICATED BY THE OPINION OF THE COURT OF APPEAL, IS NOW GUIDED BY CONTRADICTORY CASE LAW AND IS IN PRESSING NEED OF CLARIFICATION BY THIS COURT.
There is no dispute that the defense presented to the jury was accident. Petitioner testified that at no time did he intend to shoot Mr. S. (RT 1487). A videotape of his post-arrest statement was also played in which he said the same thing (RT 1510, Deft’s Exhibit FFF & GGG). During the instruction conference, the trial court stated that it was inclined to instruct the jury on voluntary manslaughter based upon heat‑of‑passion and imperfect self-defense. Defense counsel objected strenuously to the giving of such instructions for tactical and legal reasons (RT 1783, 1789, 1791, 1793). The prosecutor urged the LIO instruction for manslaughter (RT 1792), but then argued to the jury that nothing in the evidence “negate[d] malice aforethought” (RT 1975‑76, 2083).
The court stated it was required to give the voluntary manslaughter instruction:
… I’ve got an obligation, if the evidence merits giving the instruction, to give them sua sponte despite what the position of the defense might be (RT 1792).
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… it will be my intent to give the instructions on the lesser included offenses … it’s clear that these lesser included offenses could be established on the evidence that the court has before it (RT 1797).
In People v. Sedeno, supra at 716, this Court stated generally that “[t]he obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given.” However, Sedeno also set forth the following rule as to the court’s duty to instruct sua sponte on defense theories and lessers:
the duty to give instructions, sua sponte, on particular defenses [] and their relevance to the charged offense arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case. Indeed, this limitation on the duty of the trial court is necessary not only because it would be unduly burdensome to require more of trial judges, but also because of the potential prejudice to defendants if instructions were given on defenses inconsistent with the theory relied upon (at 716; emphasis added).
There should be no duty to give jury instructions on possible defenses unless there is substantial evidence supportive of the defense and the defense is not inconsistent with the defendant’s theory of the case. However, this is followed by the inconsistent dictum at the conclusion of footnote 7 that if evidence supports an LIO, the LIO instruction must be given even if objected to by the defendant and inconsistent with this defense. But what of the situation where the alleged evidence of the LIO for manslaughter is the defendant’s evidence of a different and inconsistent defense such as accident? Here, petitioner testified to an accident; the trial court improperly used that evidence as a predicate to allow instructions on voluntary manslaughter through heat of passion or imperfect self defense.
Ironically, with the same trial evidence, had the trial court not given the instructions and petitioner remained silent about it, the Court of Appeal would have affirmed because under authority of this Court the theories are inconsistent with the defense and would be improper to give sua sponte.
In Sedeno, the defendant was convicted of murdering a police officer who was attempting to apprehend him. The defendant testified that the officer’s gun, which he grabbed in a struggle, went off by accident and that he did not intend to shoot him. On appeal, he argued inter alia that the trial court should have instructed sua sponte on imperfect self defense and heat of passion, the identical instructions at issue here. In holding there was no sua sponte duty to instruct on defenses such as unconsciousness and self-defense, the Court relied on the state of the evidence and particularly the defendant’s testimony that the shooting was an accident (Id. 717‑718). In language which should have convinced the trial court below to refrain from giving imperfect self-defense instructions, this Court said: “Since there was no evidence that defendant believed he was acting in self-defense, there was likewise no basis for an instruction on the effect of an unreasonable belief that deadly force was necessary in defense of self. (Id. at 718).
As to the heat of passion instruction for voluntary manslaughter, Sedeno again found no basis for a sua sponte instruction.
…. [U]nless it appears from the prosecution’s case that the killing was committed in the heat of passion and upon sufficient provocation the burden is on the defendant to raise a reasonable doubt in the minds of the jurors that malice was present. …[Citation]… Because the existence of malice is presumed when the circumstances of a killing suggest an intent to kill or that “‘the killing proximately resulted from an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life”‘ …[Citation]… provocation and heat of passion must be affirmatively demonstrated. …[Citations]… It is not enough that provocation alone be demonstrated. There must also be evidence from which it can be inferred that the defendant’s reason was in fact obscured by passion at the time of the act. [Citation] Before a court must instruct sua sponte on voluntary manslaughter in the heat of passion as a lesser offense included within murder there must be either some evidence that heat of passion was present at the time of the killing or some reason for the court to know that the defendant is relying on that theory of manslaughter as a defense.
Here defendant testified that the arresting officers kicked and choked him although he was not resisting. That evidence might form the basis for a finding of adequate provocation. But no evidence was offered that suggested that defendant was acting in a resultant heat of passion when he shot Officer Klass. He not only denied intending to shoot Officer Klass when he took the gun, a fact that would not preclude giving a requested instruction on voluntary manslaughter [Citation], but twice expressly denied fighting back when he was being beaten. Additionally, he testified that he realized as soon as he took the gun that it was wrong to have done so and therefore fired into the air. Had defendant elected to invite the jury to speculate as to whether he had shot the officer in a heat of passion resulting from the assault upon him by the officer, notwithstanding his testimony to the contrary, he might have requested and received instructions on voluntary manslaughter in that context since inconsistent defenses may be offered. He may not, however, expect the trial judge to give a sua sponte instruction on that theory of manslaughter when his own testimony is to the effect that he was not acting in a heat of passion and there is neither direct evidence of heat of passion nor reason for the court to know that he is relying on that defense. (Id. at 719‑722; emphasis added).
In Sedeno, as in petitioner’s case, the defense was accident. This court rejected any sua sponte duty under the facts to warrant heat of passion or imperfect self defense instructions. In Sedeno, as in petitioner’s case, the instructions were not requested, and there was no direct evidence supporting them; the trial court was given no reasons to believe that the defense was relying on either. In the instant case, however, petitioner went further — he objected to the instructions and informed the court they were inconsistent with his defense of accident. Yet, despite Mr. Sedeno being legally unentitled to the same two instructions under similar facts, petitioner has them forced upon him over his objection.
The actual holding in Sedeno thus supports petitioner. Two instructions supporting the LIO of manslaughter were given in petitioner’s case which were legally improper where the defense is accident. They should not have been given sua sponte much less, as here, over objection.
Petitioner’s position is further supported by People v. Wickersham (1982) 32 Cal.3d 307. There, the defendant was convicted of the first degree murder of her husband. The trial court instructed on first degree murder and involuntary manslaughter only. The defense was that the victim was accidentally shot during a sudden scuffle during which the defendant had been trying to keep her husband away from her gun. She denied any intent to fire the gun or kill her husband. Defense counsel only requested involuntary manslaughter instructions.
The conviction was reversed for failure to instruct on second degree murder. In reversing, this Court noted that a trial court should not instruct on a heat‑of‑passion voluntary manslaughter or imperfect self‑defense where the same facts would give rise to a finding of reasonable self‑defense (32 Cal.3d at 328‑29). Further, there should be no “unreasonable or imperfect self‑defense” instruction unless there is an intentional killing as opposed to an accidental one (32 Cal.3d at 328). And even if the evidence ordinarily would warrant such an “unreasonable self‑defense” instruction:
unreasonable self‑defense falls within Sedeno’s category of “defenses” for purposes of the duty to instruct sua sponte…. [T]he trial court need only instruct on a particular defense “if it appears that the petitioner is relying on such a defense, or there is substantial evidence supportive of such a defense and the defense is not inconsistent with the petitioner’s theory of the case” [citation to Sedeno]. (Wickersham, 32 Cal.3d at 329).
Unreasonable self‑defense was obviously not petitioner’s theory; he at all times argued that he acted reasonably and that the single and fatal shot went off by accident as he stumbled back from the victim’s car. Indeed, any argument of unreasonable conduct by petitioner amounting to negligence would have completely nullified his defense of accident or misfortune. The accident instruction given in this case told the jury to disregard the defense if the defendant acted negligently. See next argument.
As to heat of passion, even assuming arguendo facts are presented at trial from which the jury could find voluntary manslaughter based upon provocation and passion, if the same facts could give rise to a finding of reasonable self‑defense (and the defendant is asserting self‑defense), the instruction should not be given. Wickersham stated “a trial court should not instruct on heat‑of‑passion voluntary manslaughter where the same facts would give rise to a finding of reasonable self‑defense” (Wickersham, 32 Cal.3d at 328; People v. Federico (1981) 127 Cal.App.3d 20, 34: “the court should not render sua sponte instructions that are inconsistent with the defendant’s theory of the case.”).
Both Sedeno and Wickersham then are similar to petitioner’s case in that there were murder charges in all three to which the defendants testified to support an accident defense. This Court twice rejected any sua sponte duty to instruct on manslaughter based upon an unreasonable self‑defense or heat of passion theory. Petitioner, however, objected to such instructions and the trial court gave them.
This was a classic case of fettering a defendant with unwanted “protections,” imprisoning him in his privileges and calling it justice. Petitioner labors in confinement under a misguided rule which holds that while a court has no sua sponte duty to give defense LIO instructions which are inconsistent with the defense evidence and theory of defense, it may do so when the prosecutor is not advancing the theory and when defendant objects.
The Courts of Appeal, as noted in the opinion below, have given conflicting signals in this area. People v. Eilers (1991) 231 Cal.App.3d 288, 294, fn. 4, wrongly cited People v. Duncan (1991) 53 Cal.3d 955 (holding that failure to instruct on lesser included offenses at the request of defense counsel constituted invited error, and was not a basis for reversal on appeal), misreads the Sedeno‑Wickersham rule because it finds that while the defendant may object to inconsistent defense theory instructions, it cannot block lesser included instructions based upon such inconsistencies:
Thus, a defendant may exercise some control over the trial court’s instructions regarding inconsistent defenses, but has no similar control over supposedly inconsistent lesser included offenses (231 Cal.App.3d 295).
This rationale ignores that the only way lesser included offenses of murder may be given in cases such as this is through theories of defense such as heat of passion or imperfect self‑defense. Without the giving of defense instructions such as heat of passion or imperfect self‑defense, there could be no lesser included offense of voluntary manslaughter in this case. Other cases hold that a defendant may block inconsistent defense instructions (and thus the lesser included offense instructions). See People v. Bobb (1989) 207 Cal.App.3d 88, 91 (“The trial court has a duty to instruct on necessarily included offenses which are not inconsistent with the defense”); People v. Hooper (1986) 181 Cal.App.3d 1174, 1183; (only “when an instruction on a lesser included offense would be inconsistent with the defendant’s theory of defense is the failure to instruct on a lesser included offense proper)”; People v. Helton (1984) 162 Cal.App.3d 1141, 1146 (“It is obvious that the court has no duty to force instructions on an unwilling defendant”); People v. Allums (1975) 47 Cal.App.3d 654, 662‑63) (same); and People v. McCoy (1984) 150 Cal.App.3d 705, 708 (quoting the rule).
These appellate courts have properly stated that the Sedeno‑Wickersham decisions do not mandate that every LIO which is theoretically arguable (based on defense theories) must be given over defense objection. In People v. McKelvey (1987) 194 Cal.App.3d 694, the defendant was convicted of mayhem based upon his conduct of blinding the prosecuting witness with a pool cue (Id. at 698). The defendant claimed in his statement to police, that prior to his hitting the witness with the pool cue, she hit him with a pool ball ‑‑ self‑defense (Id. at 699); at trial, he testified that the prosecuting witness was intoxicated and fell into the cue ‑‑ accident (Id. at 700). On appeal, the defendant claimed the judge should have given a sua sponte instruction that the “honest but unreasonable belief in the need to defend oneself negates the ‘malice’ required for a mayhem conviction” (Id., at 701). In deciding whether such a sua sponte duty existed, the court analyzed the language of Sedeno and Wickersham, and concluded:
An unreasonable self‑defense instruction should not be given … where a defendant makes a tactical decision to forego instructions on lesser included offenses and no lesser offense arising out of the same facts has been charged (Id. at 703).
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. . . if defense counsel deliberately objects to lesser included offense instructions for tactical reasons [citation], neither instruction on the lesser nor on unreasonable belief are required (Id. at 704).
Although an unreasonable self‑defense instruction would have been appropriate since Mr. McKelvey “was relying on this theory, which was very explicitly put to the jury” (Id. at 705), the McKelvey court held there was no error in failing to give the instruction sua sponte since Flannel‑type instructions had previously been held applicable in the context of reducing murder to manslaughter, but not in reducing mayhem to some lesser offense (Id. at 705).
In People v. McCoy (1984) 150 Cal.App.3d 705, the defendant was convicted of attempted first degree murder. On appeal, he claimed that the trial judge should have instructed sua sponte on unreasonable self‑defense. The Court of Appeal held:
the proffered defense of accident was inconsistent with the theory of unreasonable self‑defense. Under these circumstances, the court was not obligated to instruct on this theory of manslaughter on its own motion (Id. at 712).
Had the trial court followed defense counsel’s request not to instruct the jury on the lesser included offense of voluntary manslaughter, petitioner would have no arguable issue to raise on this subject before this court. In People v. Hooper (1986) 181 Cal.App.3d 1174, an arson case, the court upheld the refusal of the trial court to instruct on lesser offenses because defense counsel “invited error” in expressing a “definite tactical decision that the instruction not be given” (at 1183).
The above legal analysis takes the case through to People v. Saille (1991) 54 Cal.3d 1103, where this Court found no duty for sua sponte voluntary intoxication instructions in a murder case. The Court stated that voluntary intoxication was not a “defense” although it could aid in proving the lack of intent to kill and justify lesser included instructions. This decision seems to further blur the already amorphous concept of “defenses” and when sua sponte instructions are required.
Thus, today, a court need not give sua sponte instructions in a murder case on intoxication (which could warrant giving involuntary manslaughter LIO instructions) no matter how strong the evidence supporting it. But under the analysis of the court below, such LIO instructions may be given by the trial court when objected to and inconsistent with the defendant’s testimony and contrary to his defense!
Perhaps one of this Court’s latest pronouncements, People v. Hardy (1992) 2 Cal.4th 86, 184-185, provides a key to the questions raised in this case. There, a jury convicted two defendants, Hardy and Reilly, each of two counts of first degree murder (Pen. Code, § 187), and other offenses. The jury also found true six special‑circumstance allegations for each defendant and sentenced them to death. On appeal, the defendants contended that the trial court erroneously failed to instruct, sua sponte, on the lesser included offenses of second degree murder and voluntary manslaughter, as well as the defenses of diminished capacity and voluntary intoxication. There was trial evidence they both drank beer and snorted cocaine on the night of the murders. In response, this Court stated:
Even if we assume there was sufficient evidence to support such instructions, we reject the contention because the record reveals defendants’ trial attorneys each made a tactical decision to forgo these instructions because they were inconsistent with the defense on which defendants relied. (Id. at 183).
The Court reviewed the record of the instruction conference where the defense counsel stated that they did not want such instructions given, one of them (at least) articulating that it would be inconsistent with their defenses of non‑participation. Then the Court stated that while the trial court has a sua sponte duty to instruct on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present, it need “not deliver the instruction, however, where a defendant expresses a deliberate tactical purpose for objecting to the instruction.” (Id. at 184). This rule should apply to petitioner.
Further, in response to a federal constitutional argument that under Beck v. Alabama (1980) 447 U.S. 625, such LIOs were required, this Court responded: “…Beck does not prohibit a criminal defendant from choosing to forgo such instructions for strategic reasons, as was the case here. (U.S. v. Lopez Andino (1st Cir. 1987) 831 F.2d 1164, 1171, cert. den. 486 U.S. 1034; Look v. Amaral (1st Cir. 1984) 725 F.2d 4, 9.)
Although the question is in need of clarification, this Court appears to at least agree that a defendant may forgo instructions on “defense‑based LlOs” where there is a legitimate basis for doing so such as when neither the facts nor the law support them. Here, both of the “defense” theories to support manslaughter were, under Sedeno and Wickersham, improperly given here as a matter of law and fact and reversal is required.
Prejudice. In a very close case, petitioner was convicted of an uncharged offense, manslaughter, based on instructions given by the trial court over objection which were unsupported by evidence and inconsistent with petitioner’s testimony that the shooting was an accident. The jury acquitted petitioner of murder. Had there been no voluntary manslaughter instruction, the jury’s job would have been to consider the involuntary manslaughter issue. The erroneous result here is the same as if the court had instructed on an uncharged non‑included offense. Without a request from counsel, a defendant may not be convicted of such an offense (People v. Geiger (1984) 35 Cal.3d 510, 526); see also People v. Lohbauer (1981) 29 Cal.3d 364, 367‑68 (court lacks jurisdiction to convict on non-included lessers).
Further, the forced giving of “defense” instructions to support a LIO implicates federal constitutional due process by not giving notice to the defendant prior to and during trial of the charges against him Sheppard v. Rees (9th Cir. 1990) 909 F.2d 1234, 1236‑7). Also, by giving “defenses” inconsistent to the defense under these circumstances here, the court unfairly undermines the defense actually relied upon. See cases where the appellate courts have found certain trial procedures used by the State as invalid infringements on the right to defend oneself: Brooks v. Tennessee (1972) 406 U.S. 605, 612 [statute requiring that a criminal defendant desiring to testify shall do so before any other defense witness held unconstitutional]; Rock v. Arkansas (1987) 483 U.S. 44, 62 [rule excluding all post‑hypnosis testimony by a defendant infringes impermissibly on defendant’s right to testify]; People v. Shirley (1982) 31 Cal.3d 18, 67 [same]; People v. Robles (1970) 2 Cal.3d 205, 215 [defendant may testify despite his attorney’s objection]. Foisting upon a defendant unwanted defenses to support an LIO for manslaughter then denies both federal constitutional notice and right-to-present a defense rights.
In sum, the serious issue presented is one in which conflict rages in the trial and appellate courts of this state. Does a court have a duty to instruct only on “defenses” supported by substantial evidence? Are heat of passion and imperfect self‑defense such defenses? What distinguishes a “defense” for which sua sponte instructional duties arise from defense theories such as voluntary intoxication which do not. May a defendant successfully object to the giving of an LIO for which some evidence exists based upon a defense theory which is totally inconsistent with this proffered defense (and where the prosecution is not arguing that defense theory)? Only this Court can resolve these important questions.
II. THIS COURT SHOULD RESOLVE THE CALJIC INSTRUCTIONAL DEFICIENCY ON THE DEFENSE OF ACCIDENT WHEREBY TRIAL COURTS PUT A BURDEN OF PROOF ON THE DEFENDANT TO DISPROVE UNDEFINED CONCEPTS OF SUCH AS “CRIMINAL NEGLIGENCE” WHILE ALSO NOT INFORMING THE JURY THAT THE BURDEN OF PROOF IS ON THE PROSECUTION TO DISPROVE THE DEFENSE OF ACCIDENT.
A. Criminal Negligence. Not only did the trial court give forced “defense theory” instructions inconsistent with accident, it compounded the error by giving the jury a CALJIC accident instruction with an undefined wild card concept which allowed it to reject the defense of accident. The undefined concept ‑‑ “criminal negligence” ‑‑ gave the jury a roving commission to nullify the defense based upon whatever it considered “criminal negligence.” Second, it put a burden on the defense to disprove such negligence. Third, unlike other defense theory instructions, it does not tell the jury that the burden is on the prosecution to disprove accident as required by statute and analogous case law.
Here, if the jury merely accepted the prosecutor’s argument that petitioner acted under circumstances of illegality ‑‑ e.g., beyond the scope of his concealed weapons permit ‑‑ such conduct could be deemed “criminal negligence” so as to deprive petitioner of any right for jury consideration of an accident defense. In People v. Thurmond (1985) 175 Cal.App.3d 865, the defendant had been convicted by a jury of attempted murder of his lover, an intentional act. The victim had been shot in the room shared with Mr. Thurmond. The defense was that Thurmond had his gun to defend himself from an unknown intruder in the apartment and the gun went off by accident killing the victim (Thurmond’s lover). The prosecution theory was that Thurmond shot the victim during a lovers’ quarrel. In reversing, the appellate court found error in excluding evidence as to Thurmond’s state of mind at the time of the shooting and in failing to define “criminal negligence.” In holding the errors to require reversal, the court noted:
“The defense of accident or misfortune requires the defendant to prove three negatives: he did not act with an evil design; he did not act with intent; and, he did not act with “culpable negligence.” We have no idea what “culpable negligence” meant to the jury. For instance, the jurors may have believed the defendant was culpably negligent in pointing a loaded gun in the intruder’s direction . . . . Or they may even have believed defendant was culpably negligent in keeping a loaded gun in his home. (Emphasis in original, at 873).
‑‑ Or, to continue the example in this case, petitioner was “criminally negligent” in acting outside the scope of his concealed weapons permit in possessing a handgun when not conducting official business, a permissible inference from the prosecution’s multiple statements to the jury on the issue (RT Voir Dire Aug. 391, RT 46, RT 1970, RT 2084). The Thurmond court found the jury was “misdirected or misled upon an issue vital to the defense and the evidence does not point unerringly to the defendant’s guilt [Citations].” Although it also found evidentiary error to support Thurmond’s reversal, the nature of the instructional error here is such that it provided a basis for the jury to ignore accident as a defense simply by finding some basis for finding “culpable negligence.”
The opinion below held that the trial court erred on this point (Exhibit A, 21), but that it was rendered harmless because the instructions on involuntary manslaughter somehow provided the clue to the jury as to the definition of the accident‑nullifier concept of “criminal negligence.” (Id. at 22‑23). An instruction defining “without due caution and circumspection” was given (CT 98) as part of a definition of one of the elements of involuntary manslaughter (that an unlawful killing occurs in the “commission of an act, ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection,” (see instruction given at CT 96). No one told this jury that the definition of “without due caution and circumspection” supplied the definition of “criminal negligence” in the accident instruction, and the opinion fails to point to a page where the record reflects any definition given the jury of “criminal negligence,” or just how the jury was told that an instruction on involuntary manslaughter could conceivably be applied to the defense of accident or the component of “criminal negligence.” The two concepts were never interrelated for the jury.
Having found intent to kill, it is highly unlikely the jury even considered the involuntary manslaughter instructions. Thus, the opinion’s assertion that this instruction accurately guided the jury in assessing what “criminal negligence” meant is speculative. Once the jury rejected accident based on its undefined notion of “criminal negligence,” it was free to find guilt on any of the instructed crimes without focusing on petitioner’s testimony that the shooting was accidental, that defense having been nullified without consideration by the jury. For these reasons, CALJIC 4.45 should not be used in any criminal case, much less a murder case, and this Court should grant review to so state.
B. Burden of Proof. Additionally, the accident instruction given was constitutionally erroneous because it required petitioner to prove three negatives: he did not act with an evil design; he did not act with intent; and, he did not act with criminal negligence. The jury could well have erroneously required petitioner affirmatively to prove he did not act intentionally (in derogation of the prosecution’s burden of proof on the issue), and having found he did not prove it, eliminated the defense on this basis.
The opinion states that the jury was adequately instructed on the burden of proof (Exhibit A, 24). Once the trial court found sufficient evidence to justify the instruction on accident, it had a duty to properly instruct on the issue. The current accident instruction not only does not inform the jury that it is the People’s burden to disprove accident, but could reasonably be read as placing the burden of proof on the defendant to disprove that he acted with evil design, intent, and, “criminal negligence.”
Nowhere does the opinion deal with Evidence Code section 502 which requires a burden of proof instruction “on each issue and as to whether that burden requires that a party raise a reasonable doubt. . . .” (Emphasis added). The plain language of this statute requires the giving of the burden instruction on the issue once the court deems there to be such an affirmative defense issue of accident.
The opinion’s reliance on the general CALJIC 2.90 reasonable doubt instruction (given at RT 1922), is misplaced because 2.90 fails to inform the jury that if the evidence raised a reasonable doubt as to accident, it must acquit. As the opinion notes, the defenses of identity (CALJIC 2.91), alibi (CALJIC 4.50), unconsciousness (CALJIC 4.31), and self‑defense (CALJIC 5.15), all have reasonable doubt components informing the jury how to apply the burden issue as to these defense instructions. (Exhibit A, 24). This is a recognition that CALJIC 2.90 does not adequately inform the jury as to how to apply the burden to these issues. Accord People v. Adrian (1982) 135 Cal.App.3d 335, 342 (noting inadequacy of CALJIC 2.90 to inform the jury of the burden of proof with respect to self‑defense).
Additionally, as stated in People v. Thurmond, supra at 873, the wording of the CALJIC 4.45 accident instruction used in this case puts a burden initially on the defendant by requiring the defendant to prove three negatives including that he did not act with an evil design, intent, and criminal negligence. Indeed, Thurmond states (wrongly) that the defendant has a burden of proof to “establish the absence of evil design, intention and culpable negligence” (173 Cal.App.3d 865). Putting the burden of proof on the defendant to disprove intent is absolutely unconstitutional (Mullaney v. Wilbur (1975) 421 U.S. 684).
Despite the plain wording of the CALJIC 4.45 instruction and Thurmond’s statement that the accident instruction requires the defendant to disprove three negatives, the opinion below dismisses this issue by simply saying other instructions covered the issue, and that those instructions put the burden on the People to prove the defendant’s act “unlawful.” But this does not address the issue of the accident instruction itself and its functional placement of the burden on the defendant to prove himself entitled to an accident by disproving the three negatives.
The general burden of proof instruction given here did not make reference to the defense of justification (See People v. Adrian (1982) 135 Cal.App.3d 335, 342). The opinion’s generic references to instructions do not show that they conveyed the message to the jurors concerning the proper standards of proof in deciding the accident issue. Only CALJIC 5.15, cited at Exhibit A, 25, comes close. It reads:
Upon a trial of a charge of murder, a killing is lawful, if it was justifiable or excusable. The burden is on the prosecution to prove beyond a reasonable doubt that the homicide was unlawful, that is, not justifiable or excusable. If you have a reasonable doubt that the homicide was unlawful, you must find the defendant not guilty.
Again, this generally worded instruction does not address the defense of accident; nothing in the instruction tells the jury that an accident or misfortune defense is what constitutes a “justifiable or excusable” homicide; it also does not eliminate the problem of the accident defense instruction reasonably being understood to require the defendant to first disprove intent and criminal negligence before the jury is allowed to consider accident.
This court should grant review to eliminate the current irrational inconsistency which exists today whereby the accident defense instructions being given in the trial courts, unlike alibi, unconsciousness, self‑defense and identity defenses, does not meet the Evidence Code requirement of a allocated burden on the People. Further, CALJIC 4.45 is easily interpreted as putting a burden on the defense to disprove that he did not act with an evil design, intent and, “criminal negligence.” The court should forbid it being given in any criminal case as currently worded.
III. THE COURT SHOULD MAKE CLEAR THAT A DEFENDANT IS ENTITLED TO A DEFENSE OF USING DEADLY FORCE TO STOP A FLEEING DANGEROUS FELON AND THAT THE STATUTORY DEFENSE IS DISTINCT FROM SELF DEFENSE.
Penal Code section 197 states: “Homicide is also justifiable when committed by any person in any of the following cases: … [¶](4) When necessarily committed in attempting by lawful ways and means, to apprehend any person for any felony committed.” While section 197 literally allows the use of deadly force in apprehending any felon, the courts have interpreted the section to justify homicide only when the committed offense is a “forcible and atrocious crime”. A forcible and atrocious crime is one that because of its atrocity or violence imperils human life or threatens great personal harm, such as murder, mayhem, rape and robbery. (People v. Ceballos (1974) 12 Cal.3d 470, 478.) (Exhibit A, 26‑27).
In an odd switch, the Court of Appeal upheld the trial court’s refusal to give an instruction on the use of deadly force to stop a fleeing dangerous felon because “there was no evidence appellant fired his gun believing it necessary to apprehend a felon who would otherwise escape.” (Exhibit A, 27). If this assertion were sufficient to prevent the instruction, then it may be similarly asked by what right did the trial court instruct on heat of passion and imperfect self defense? Or in the Court of Appeals upholding those instructions?
Whether or not this Court agrees that inconsistent “defense theory” instructions may be forced upon a defendant (see Argument I), a defendant is entitled to have the jury consider an alternative defense theory instructions upon request. See People v. Atchison (1978) 22 Cal.3d 181, 183 (the defendant may assert inconsistent defenses). The trial judge refused to instruct the jury on a modified version of CALJIC 5.25 (Lawful Arrest or Keeping the Peace) (CT 39) which related the ability of a private citizen to use reasonable deadly force to apprehend a fleeing felon, the elements of assault with a deadly weapon (ADW) as requested in petitioner’s proposed instructions (CT 40, 41), stating he was “absolutely convinced at this point in time that the evidence d[id]n’t establish that” a felony had been committed by Mr. S. for which a lawful arrest could be made (RT 1787). The trial judge also refused to give CALJIC 9.24 (“Lawful Arrest ‑‑ Defined) (CT 38).
The opinion finds insufficient evidence to support the instruction in that there was no evidence showing the shooting was necessarily committed to stop a fleeing dangerous felon:
As to the first situation, there was no evidence appellant fired his gun believing it necessary to apprehend a felon who would otherwise escape. Trial courts are not required to instruct concerning defenses not supported by substantial evidence. (People v. Flannel, supra, 25 Cal.3d at pp. 684‑685.) While there was evidence the final confrontation between appellant and S. was the result of appellant’s desire to detain S. until the police arrived, appellant testified he drew his gun in response to S.’s attempt to cut him and fired reflexively with no intent to shoot S. There was no evidence the shot was intended as a means to apprehend a felon who would otherwise escape. The jury was adequately instructed on that defense. (Exhibit A, 27).
It is true that petitioner testified the gun went off by accident. With the improper instructional guidance on the accident issue (see preceding two arguments), the jury found intent to kill which was the prosecution theory of the case. Having found an intent to kill as requested by the prosecutor (see RT 2086), the jury was never given the opportunity to assess whether this defense, which presumes an intentional but lawful act in stopping a dangerous felon, applied. There was an abundance of evidence supporting an assault with a deadly weapon by Mr. S. based upon conduct in purposely running Andrea B. off the road with his car, and the assault with a deadly weapon on petitioner. The jury found the shooting intentional. They should have been given the opportunity to assess whether the intent was to stop an armed fleeing felon who was moving in the direction of petitioner’s daughter just outside the car.
The double standard in allowing this jury to receive such intent to kill LIO instructions as heat of passion and imperfect self defense ‑‑ despite petitioner’s testimony that the shooting was an accident ‑‑ and then disallowing this intent to kill (but lawful) instruction cannot be missed by this Court. Is the rule to be that the prosecution can force partial “defense” theories based on an intent to kill upon a defendant who claims accident, but that the defendant may not have an instruction on lawful deadly force in case the jury accepts the prosecution argument on intentional shooting?
IV. DOES A TRIAL COURT HAVE DISCRETION TO ALLOW INTO EVIDENCE A PROSECUTION VIDEOTAPE REENACTMENT WHICH ITS OWN PHYSICAL EVIDENCE DEMONSTRATES IS INACCURATE, AND GUN OWNERSHIP TO REBUT ACCIDENT, TO INSTRUCT, PURSUANT TO CALJIC 2.71, THAT A DEFENDANT’S TAPED ORAL STATEMENT SHOULD BE VIEWED WITH CAUTION, AND TO EXCLUDE EVIDENCE OF ATTEMPTS BY THE PROSECUTION TO INFLUENCE ONE OF THEIR OWN EXPERT WITNESSES WHO THEY FEARED WAS BECOMING A DEFENSE WITNESS?
The opinion below rules the above errors either not error at all or harmless. Cumulatively, they denied petitioner due process of law under state and federal constitutional protections. Further, each of the errors cited below aided the prosecution in urging an intent to kill and thus they also demonstrate the prejudice from the giving of the improper manslaughter and accident instructions.
a. Admission of the inaccurate videotaped shooting reenactments directed by prosecution witnesses is improper under People v. Dabb (1948) 32 Cal. 2d 491, because they are inherently prejudicial.
Petitioner objected to this evidence because it did not meet the elementary foundation for admission — accurately representing the scene. Further, the witnesses’ renditions in the tapes were contradicted by the physical evidence; thus, one witness had petitioner reaching into the car to shoot Sanchez, a fact contradicted by the prosecution’s physical evidence — the expelled shell found on the street outside the car and the gunshot residue tests. Defense counsel objected to the admission of these “reenactments” in his trial brief (CT III 42), and addressed the issue at the pretrial motions hearing (Motion’s RT 297‑309). He pointed out that much of what the witnesses directed on tape was impossible from the physical evidence, but that “. . . the jurors will have implanted in their brain that what they are seeing on the videotape is what happened” (Motion’s RT 298).
The opinion below states that the tapes do “not and clearly [were]… not intended to be, nor could not have been taken as, a detailed reenactment of the crime.” (Exhibit A, 38). But this is not what the jury was told. The witnesses told the jury that what occurred on the tapes occurred in real life, a fact contradicted by the physical evidence. Accuracy is the issue. A court in accessing whether to allow such evidence cannot just stop with the proffer that the witness will say the tape accurately reflects the action based on what he or she recalls. Upon a showing that the witness’ video reenactment is in fact inaccurate in important respects, while the witness cannot be prevented from testifying to what he believes he or she saw, a taped representation which has material inaccuracies in fact cannot be introduced.
In People v. Dabb (1948) 32 Cal.2d 491, 498‑99, although it found the film before it admissible because the defendant voluntarily took part in the reenactment, this Court expressed the following concerns about such evidence:
A motion picture of the artificial recreation of an event may unduly accentuate certain phases of the happening, and because of the forceful impression made upon the minds of the jurors by this kind of evidence, it should be received with caution…. [S]uch a portrayal of an event is apt to cause a person to forget that “it is merely what certain witnesses say was the thing that happened, and may “impress the jury with the convincing impartiality of Nature herself.” (3 Wigmore, Evidence [3d ed.], §798a, p. 203.)
This issue should be addressed by this Court to prevent very influential and inaccurate visual exhibits from imbalancing the trial process.
b. The trial court should not admit evidence of gun ownership which bears no relevance to the issues presented in this case.
“[E]vidence of possession of a weapon not used in the crime is ordinarily not admissible” (People v. Ramos (1982) 30 Cal.3d 553, 580). Here, the evidence that petitioner had a gun collection is deemed relevant to show that the gun he had that day would not have gone off by accident. The opinion sustains the theory of introduction that ownership of other guns tend to negate an accident with the gun found at the scene. (Exhibit A., 35). Why? Particularly, where there was abundant evidence that the prosecutor was allowed to question petitioner on such as his gun safety training experience and “marksman” status in the service so as to try and negate the accidental firing defense in petitioner’s testimony (RT 1547‑49). This evidence included questions about “ownership” of an Uzi (which petitioner never owned), the purpose of which could not possibly add to the issue of whether petitioner accidentally fired the weapon in this case by accident.
c: The trial courts should not instruct a jury pursuant to CALJIC 2.71, that evidence of taped oral admissions should be viewed with caution.
In giving CALJIC 2.71, the court told the jury: “Evidence of an oral admission of the defendant should be viewed with caution.” (RT 1920‑21; emphasis added). That petitioner made taped statements to the police was never in dispute because petitioner affirmed making them, and he introduced the tape‑recording of the statement as evidence. Where the nature of the statement is undisputed, the cautionary instruction to view the statement with caution is totally inappropriate. It converts a protection of the defendant from biased or faulty recall of oral statements into a weapon against him; it has repeatedly been held that the cautionary instruction should not be given where the evidence of the statement is a tape recording. (E.g., People v. Hines (1964) 61 Cal.2d 164, 173.) The instruction is unnecessary because “there could be no mistake as to what the defendant said.” (People v. Gardner (1961) 195 Cal.App.2d 829, 832; see also People v. Britton (1936) 6 Cal.2d 10, 13 (cautionary instruction inapplicable when defendant’s statement is in writing)). The jury should not have been told that it must view the evidence of the statement with a skeptical eye since it was evidence which was exculpatory (petitioner stated to the police that the shot was an accident).
The opinion avoids the issue of error, and rules that the instruction was not prejudicial. (Exhibit A, 39‑40). It should be clear that it is error to give such an instruction.
d. Evidence of efforts by the prosecution to influence the testimony of an expert witness should never be excluded by the trial court as irrelevant.
On cross examination of the police criminalist, Mr. Wolberg, defense counsel attempted to question him about a phone call Wolberg received eight days earlier from a high ranking person in the District Attorney’s Office (RT 530). The prosecutor objected to this line of questioning on relevancy grounds (RT 530). Defense counsel then made the following offer of proof:
Mr. Neely [the high ranking District Attorney] called up Mr. Wolberg. He’s the number two man in the D.A.’s Office . . . . And expressed to the witness a concern that the witness would be turned into a defense witness by the defense. And I believe that’s relevant because it has a tendency in reason to show that the witness’ testimony might be influenced by such a statement (RT 530)…. [¶] I don’t think he’s biased. I don’t think he’s prejudiced. I think he might be influenced. I think the reluctance of the witness to state certain opinions that he has had … (RT 531; see also proffer at CT II 36).
The trial judge sustained the prosecutor’s objection (RT 532), prohibiting further inquiry on the subject. It is misconduct for the prosecution to intimidate defense witnesses (In re Martin (1987) 44 Cal.3d 1). Evidence of prosecution intimidation of defense witnesses is clearly relevant evidence if for no other reason than to explain the fearful demeanor of the witness. (See, e.g., People v. Warren (1988) 45 Cal.3d 471, 481: “. . . evidence that a witness is afraid to testify is relevant to the credibility of that witness and therefore admissible [Citation].”
The opinion below sustained the trial court’s ruling, deeming the exclusion necessary to avoid opening a “can of worms.” (Exhibit A, 49). The relevance of bias and untoward influence evidence is clear and petitioner proffered that the witness had been influenced and had backed off of earlier held opinions. That is a clearly sufficient basis to open the can since it evidence of constitutional import. See Davis v. Alaska (1973) 415 U.S. 308, 318.
Petitioner requests that the Court grant review on the questions raised, and for the reasons expressed above, order the judgment below reversed.
CHARLES M. SEVILLA
Cleary & Sevilla
February 12, 1993 Attorneys for Petitioner
 For purposes of the petition only, the petitioner adopts the statement of facts of the opinion below. Should a hearing be granted and briefing permitted, petitioner will expand upon the facts.
 “Under the statutory scheme in California, a prosecutor has the discretion to charge a lesser included offense and the greater offense in separate counts. (§ 954.) Alternatively, he may charge only the greater offense. (See § 1159.) The latter is the usual practice.” (Stone v. Superior Court (1982) 31 Cal.3d 503, 517).
 The policy against “all or nothing” decisions by the parties is certainly not absolute. Thus, the policy does not prevent the trial courts from withholding an LIO instruction where the LIO would be time‑barred due to the statute of limitations. (People v. Diedrich (1982) 31 Cal.3d 263, 283). In such cases, the defendant is put in the “all or nothing” position simply because the prosecution did not commence its case in a timely fashion.
 In the case of People v. Montoya (S030181; review granted on January 28, 1993), the defendant appealed his burglary conviction urging that the trial court should have given a sua sponte “time of intent” instruction as part of the prosecution theory that he aided and abetted a burglary by accompanying another individual who had a key to the building. The Court of Appeal held there was no such duty, finding that the instruction would have been contrary to Montoya’s theory of the case ‑ no criminal intent at any time.
 Unlike this case where there was legally insufficient evidence to support the LIO, the defense objected to it, and the prosecutor, who never argued to the jury that the LIO was a reasonable alternative verdict, urged the LIO in instructions to ensure the fall back position for its case should the jury reject, as it did, the charged offense of murder. This was a formula for an improper compromise verdict which the prosecution has no right to urge.
 The trial court believed it had no choice in the matter, but was required by precedent to deliver the defense-theory-based LIO of manslaughter. This renders moot the point made by the State in its pleadings below that even if the court has no sua sponte duty to give such instructions over objection by the defendant, it can do so in its discretion. See Justice Weiner’s concurring opinion, “To say a trial court does not have a duty to instruct is considerably different from saying the giving of such an instruction is forbidden.” To quote the Attorney General’s brief, “The courts do not live in T. H. White’s ant society … [‘The fortress was entered by tunnels, and over the entrance to each tunnel, there was a notice which said: EVERYTHING NOT FORBIDDEN IS COMPULSORY BY NEW ORDER’] White, T. H., The Book of Merlin, Ch. 7.)” Even if the giving of such instructions is discretionary, no discretion was exercised in this case.
 “Defenses” would include the “heat of passion” and “imperfect self-defense” which were used in this case to give manslaughter instructions over defense objection (RT 1927‑30). That imperfect self-defense is a “defense” is self‑evident, and the same holds for the “heat of passion defense” (People v. Hernandez (1988) 47 Cal.3d 315, 373; In re Cordero (1988) 46 Cal.3d 161, 189 (“the statutory heat of passion defense;” People v. Schatz (1992) 8 Cal.App.4th 748, 754 fn. 5 (“The proper focus of a heat of passion defense is the perpetrator’s, i.e., defendant’s, state of mind”); People v. Czahara (1988) 203 Cal.App.3d 1468, 1477 (“The Attorney General counters that to allow such testimony would destroy the objective element of the heat of passion defense….”); People v. Ogen (1985) 168 Cal.App.3d 611, 622 (“well settled, well recognized and routinely applied case law relating to the defense of heat of passion”); People v. Hyde (1985) 166 Cal.App.3d 463, 473 (“cases in which a “heat of passion” defense was supported by evidence of extreme jealousy”).
 Examples of cases which discuss the inappropriateness of sua sponte inconsistent “defense” instructions are: People v. Phillips (1981) 122 Cal.App.3d 90 (diminished capacity where defendant claimed she was completely sane); People v. Guthrie (1983) 144 Cal.App.3d 832, 843 (error under Sedeno to give an instruction that the defendant had a reasonable belief the house he allegedly broke into was uninhabited when the defense was alibi); People v. Watts (1976) 59 Cal.App.3d 80, 87 (” … unwarranted instructions may be incompatible with primary defense theories [citing Sedeno] and thus hamper defense strategy. At the very least they may distract the jury from, and diminish the impact of, other more critical instructions” ‑‑ here, the defense was an innocent entry to a house and accidental stabbing; no duty to give sua sponte instruction on voluntary intoxication); People v. Federico (1981) 127 Cal.App.3d 20, 34 (“the court should not render sua sponte instructions that are inconsistent with the defendant’s theory of the case”); People v. Moringlane (1981) 127 Cal.App.3d 811, 820 (where theory of defense was an alibi, i.e., that “defendant did not commit the acts and was not even present at the scene of the crime … in all likelihood it would have been error to” have given diminished capacity instructions).
 Between Sedeno and Wickersham came People v. Flannel (1979) 25 Cal.3d 668, 685, which made equivalent the duty to instruct upon request as on the court’s own motion ‑ the court should instruct the jury on every theory of the case, but only to the extent each is supported by “substantial evidence.’
 Which cannot be assumed here. The defense objected to the court that there was no basis for the instruction and the prosecution told the jury no facts negated malice.
 See Faretta v. California (1975) 422 U.S. 806: “The right to assistance of counsel and the correlative right to dispense with a lawyer’s help are not legal formalisms. They rest on considerations that go to the substance of an accused’s position before the law …. [¶] What were contrived as protections for the accused should not be turned into fetters…. To deny an accused a choice of procedure in circumstances in which he, though a layman, is a capable as any lawyer of making an intelligent choice, is to impair the worth of great Constitutional safeguards by treating them as empty verbalisms. [¶] …. When the administration of the criminal law … is hedged about as it is by the Constitutional safeguards for the protection of an accused, to deny him in the exercise of his free choice the right to dispense with some of these safeguards … isto imprison a man in his privileges and call it the Constitution.” [emphasis in original, quoting Adams v. United States ex rel. McCann (1942) 317 U.S. 269, 279‑280].
 The Court of Appeal in Eilers failed to mention, much less grapple with the Sedeno‑Wickersham rules. Further, the reliance of the Eilers court on Duncan was improper given the factual distinctions between the two cases. The defendant in Eilers relied upon self‑defense as justification for injuries inflicted on the complaining witness (Id. at 291). In Duncan, the defendant did not present an affirmative defense, but relied upon the jury finding reasonable doubt that the prosecution had proven he was the murderer. Thus, the issue presented in petitioner’s case (and by the appellant in Eilers) was not before the Court in Duncan, since there was no defense with which the lesser included instructions would have conflicted had they been given in that case.
 Eilers demonstrates Its error by stating that the most common example of its rule is where the defendant relies on alibi and the court instructs on self‑defense (231 Cal.App.3d 288, 294 n. 3). Since neither alibi nor self‑defense entail the giving of lesser included offenses, the example is meaningless to the problem presented ‑‑ an objection to the giving of defense instructions on heat of passion and imperfect self‑defense which results in the giving of unwanted, inconsistent with the defense, lesser included offense instructions.
 “When a killing is proved to have been committed by the accused, and nothing further is shown, the presumption is that it was malicious” (People v. Roy (1971) 18 Cal.App.3d 537, 551).
 In People v. Bobb, the defendant was convicted of one count of unlawful sexuaI intercourse, and claimed that the trial court should have instructed sua sponte on contributing to the delinquency of a minor (Id. at 90). The appellate court ruled that due to recent legislative amendments contributing to the delinquency of a minor was no longer a lesser included offense within unlawful sexual intercourse (Id. at 96). Therefore, the trial judge had no duty to instruct sua sponte on the lesser offense of contributing.
 Again, if the prosecution sincerely believes there to be a LIO which it wants before the jury, it can charge it and, assuming it meets procedural and evidentiary requirements, this will produce an instruction. See footnote 2 supra. This avoids the tactical maneuvering as was done in this case where the prosecution never argued heat of passion and involuntary manslaughter to support a voluntary manslaughter verdict.
 As stated in People v. Cooper (1991) 53 Cal.3d 771, 827, where “the record clearly reflects that the failure to instruct on [lesser included offenses] resulted from a deliberate choice by defense counsel as well as the defendant personally to utilize an all‑or‑nothing strategy” the defendant may not complain on appeal “that the court did exactly what he insisted upon.” See also People v. Duncan (1991) 53 Cal.3d 955, 969‑70; People v. Bunyard (1988) 45 Cal.3d 1189, 1234.
 As the opinion below asked, “But if there is substantial evidence of intoxication such that a jury could determine the defendant did not actually premeditate or deliberate a killing, is there not evidence, in Sedeno’s words, that “raises a question as to whether all the elements of the charged offense were present.” (People v. Sedeno, supra, 10 Cal.3d at p. 715.) And if there is substantial evidence supporting such a finding, is not the trial court required by Sedeno and Wickersham to instruct on that lesser degree of the crime?” (Exhibit A, 18, fn. 2).
 Lopez Andino, supra, states: “A defendant, however, also is entitled to forgo the [lesser included] instructions for strategic reasons.” (at 831 F.2d 1164). Look v. Amaral, supra, at 9, says the same: “Nothing in Beck or elsewhere prevents a defendant from making such a strategic choice.”
 “The Sixth Amendment guarantees a criminal defendant a fundamental right to be clearly informed of the nature and cause of the charges in order to permit adequate preparation of a defense. [Citations.] ‘A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense ‑‑ a right to his day in court ‑- are basic in our system of jurisprudence.'” (909 F.2d at p. 1236, fn. omitted.) See People v. Gallego (1990) 52 Cal.3d 115, 189‑190 (finding Rees notice argument inapplicable to facts there).
 In People v. Stewart (1976) 16 Cal.3d 133, 140‑141, the Court found a sua sponteduty to instruct on a defense theory which “was that defendant was actually authorized, or, alternatively, possessed a good faith belief that he was so authorized, to appropriate corporate funds in the manner disclosed in the record.” Is such a defense one which today would produce the same sua sponteduty?
 “When a person commits an act or makes an omission through misfortune or by accident under circumstances that show neither criminal intent nor purpose, nor criminal negligence, he does not thereby commit a crime” (RT 1923). This is CALJIC 4.45. The CALJIC Use Note to this instruction states that in homicide cases, CALJIC 5.00 should be given instead of 4.45. It reads: “The unintentional killing of a human being is excusable and not unlawful when committed by accident and misfortune in the performance of a lawful act by lawful means and where the person causing the death acted with that care and caution which would be exercised by an ordinarily careful and prudent individual under like circumstances.”
 Petitioner’s case was very close. “Instructional error will justify a reversal of the judgment where, as here, the jury is misdirected or misled upon an issue vital to the defense and the evidence does not point unerringly to the defendant’s guilt (People v. Rogers (1943) 22 Cal.2d 787, 807; People v. Wilson (1967) 66 Cal.2d 749, 764).” (People v. Thurmond, supra at 175 Cal.App.3d 874).
 If a jury must be instructed sua spontethat if they have a reasonable doubt as to the degree of a crime (see People v. Dewberry, 51 Cal.2d 548, 555 (dictum that “… jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense.”); People v. Aikin (1971) 19 Cal.App.3d 685, 704‑705, overruled o.g., People v. Lines (1975) 13 Cal.3d 500, 514), even when the general reasonable doubt instruction is given, then it is difficult logically to reconcile how the accident defense instruction informs the jury of the burden of proof on that issue.
 “While there was evidence the final confrontation between appellant and S. was the result of appellant’s desire to detain S. until the police arrived, appellant testified he drew his gun in response to S.’s attempt to cut him and fired reflexively with no intent to shoot S..” (Exhibit A, 27).
 The requested 5.25 instruction read: “Homicide is also justifiable when necessarily committed in attempting by lawful ways and means: ¶ To apprehend any dangerous person who has committed a felony. ¶ A dangerous person is one who poses a significant threat of death or serious bodily injury to the person attempting the apprehension or to others, or has committed a forcible and atrocious felony.”
 The court said: “There is no doubt this guy [Mr. S.] was a complete jerk …. But the bottom line is whether or not there was a felony committed for which a lawful arrest could be made, and I’m absolutely convinced at this point in time that the evidence doesn’t establish that…. I’ve got the proffered CALJIC 5.25 and we will make it part of the court’s file, noting that with the arguments cited it is being not given” (RT 1787). The trial court was clearly wrong on this assessment of the evidence and the Court of Appeal makes no attempt to adopt his rationale.
 Mr. B.’s stated purpose at the scene and at the car was to detain S. until the police could come (RT 1473, 1475, 1476, 1192).
 At common law, deadly force could be used to kill a fleeing felon who had committed a felony. (See generally Perkins & Boyce, Criminal Law (Third Ed. 1982), pp. 1099‑1104).) California’s use of the term “any felony” in Penal Code § l97(4) has been interpreted to apply only to felonies which are dangerous. Felonies such as rape, mayhem, murder, robbery and dangerous types of burglary have been determined by California courts to meet this requirement. See People v. Ceballos (1974) 12 Cal.3d 470, 479 (holding that use of deadly force to prevent a felony is justified “only if the offense was a forcible and atrocious crime,” and that the defendant could not justify using a trap gun to fire on burglars); People v. Brooks (1901) 131 Cal. 311, 313‑14 (where the deceased had allegedly shot at a policeman and the officer requested the defendant’s aid, it was proper to instruct the jury that if it found the shot was fired at the officer, that the defendant could give pursuit and use all necessary means to effect an arrest); Gilmore v. Superior Court (1991) 230 Cal.App.3d 416, 423 (dangerous burglaries can be forcible and atrocious); People v. Martin (1985) 168 Cal.App.3d 1111, 1121 (upholding night‑time killing of fleeing armed residential burglar); People v. Piorkowski (1974) 41 Cal.App.3d 324, 329 (disallowing use of deadly force in context of day‑time burglary of a dry‑cleaning establishment); People v. Jones (1961) 191 Cal.App.2d 478 (spousal battery does not justify deadly force); People v. Lillard (1912) 18 Cal.App. 343 (uncontradicted evidence that victim had entered a house and assaulted woman inside with the “evident intent of robbery” justified lethal force by defendant; manslaughter conviction reversed). See also Tennessee v. Garner (1985) 471 U.S. 1, 11‑12, 85 L.Ed.2d 1, 105 S.Ct. 1694 (“if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if where feasible, some warning has been given”).
 The second prong of the defense (the theory the shot was justified as a reasonable use of force against a felon resisting arrest) is subsumed in the first prong, at least under the facts of this case. If a citizen shoots an armed dangerous fleeing felon who has earlier attempted to run off his daughter off the road and has just taken a swipe at him with a blade instrument, then it makes no difference whether any forcible resistance to arrest is made by the felon. The statutory right to shoot exists irrespective of resistance; there simply must be flight coupled with a dangerous felony having been committed.
 The reenactments were not based upon the witnesses’ statements given to the police immediately following the incident, but instead reflected the witnesses’ recollections in March of what they had seen in February (PXRT RT 66‑67). The reenactments did not accurately reflect the events of February 22, 1990, and should have been excluded. He then pointed to a number of these impossibilities which included:
1. If the witnesses were right as to the distance petitioner was from S. when the gun was fired, then the prosecution’s own trajectory evidence would be wrong (Motion’s RT 306). The “reenactment” has petitioner one to two feet closer to Mr. S. than the laser reconstruction demonstrated.
2. Where the witnesses say they saw S., after the shot, run from the car to the store, the “… physical evidence shows drop‑down blood … staggering … inconsistent with the sprints.” (Id.).
3. Mr. E. states that he saw Mr. S. slide across the seat of his car, but the arm rest was down making such movement impossible; further, the trajectory of the bullet was such that Mr. S. was shot while lying flat across the seat. The video is “… completely incompatible with the evidence in the case … That shows him [Mr. S.] scooting across the seat and getting out” (Motion’s RT 298).
4. The persons selected to play Mr. B. and Mr. S. did not even closely match their “… height and weight … it appeared to me that the man [who played the role of petitioner] that pointed the finger in the face of the other man was substantially taller than Mr. S.’s (Motion’s RT 299). Although the witnesses erroneously remembered Mr. S. as being up to six inches shorter than Mr. B., this was a misperception, as was clearly established at trial. Mr. B. was six feet one inch tall (RT 1473) and Mr. S. was six feet tall (RT 1008). Mr. B. weighed 275 to 280 pounds (RT 1474) and Mr. S. weighed 235 pounds (RT 1008). But the investigator selected by the prosecution to play the role of Mr. B. in the reenactments, Gary Terrell, was six feet five and one‑half inches tall (RT 1366). Robert Cruz, the officer who played Mr. S., was five feet nine inches tall (RT 1571).
5. The gun owned by petitioner is small; the gun used in the tapes was larger (Motion’s RT 302). The gun used by investigator Terrell during the reenactments was a Walther P.P.K.S. (RT 1365), which was larger than the .38 caliber, 9 millimeter Kurz used by petitioner in this case (RT 1118).
6. Additionally, both men wore orange police jackets during the filming of the “reenactments” (RT 1895). The jackets made it far easier to track the movements of the participants by distinguishing them from other passers‑by and surroundings; it made the actors appear more violent than the real parties may have been (RT 1895). These jackets were worn despite the fact that police units were on hand, controlling traffic flow during the filming of all three videos (RT 362). On February 22, 1990, petitioner was wearing gray work pants (RT 1411) and a jacket (RT 1164) and Mr. S. was wearing a black t‑shirt (RT 967) and shorts (RT 473), hardly the eye‑catching clothing used by the prosecutor in her recreation.
7. Petitioner noted that because of the traffic control for the taping, “There are traffic patterns that are involved in the case here that are probably different than the traffic patterns that were involved on the day in question. And I think, therefore, it is potentially misleading to the jury” (Motion’s RT 304).
8. The wide‑angle lens used did not create a ‘human’s eye” perspective of what the witnesses saw, one witness, Mr. E., saying it was twenty feet more distant that what he saw on the date of the shooting (see PXRT 303‑304; CT II 14). The prosecution would be asking to jury to imagine the scene twenty feet closer (Motion’s RT 301, 306).
 Thus, in a case where an eye‑witness to a murder says he saw the defendant brutally stabbed the victim. A “reenactment’ of the murder could be made precisely as the witness “recreates” it for the police (i.e., a stabbing death). The defendant objects, noting that the coroner’s report shows death caused by a single gunshot wound and no signs of stab wounds. Just because the witness testifies that the video is accurate should not permit the admission of inaccurate‑in‑fact video reenactments. This is particularly true given the advantage of resources by the prosecution over defendants to create movie‑studio‑like departments for the creation of such tapes.
 The admission of such irrelevant evidence is “highly prejudicial in nature” (People v. Henderson (1976) 58 Cal.App.3d 349, 360; People v. De La Plane (1979) 88 Cal.App.3d 223, 240; People v. Hamilton (1985) 41 Cal.3d 408, 430). This Court has long stated the rule that:
When the prosecution relies, however, on a specific type of weapon, it is error to admit evidence that other weapons were found in his [the appellant’s] possession, for such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons [citations omitted] (People v. Riser (1956) 47 Cal.2d 566,577).