Brief Bank # B-540
PORTION OF APPELLATE BRIEF ON THE ISSUE
A. The Doctrine of Transferred Self Defense Applied To Appellant’s Case The doctrine of transferred self defense is available to insulate one from criminal responsibility where his act, justifiably in self defense, inadvertently results in the injury of an innocent bystander. Under this doctrine, just as “one’s criminal intent follows the corresponding criminal act to its unintended consequences,” so too one’s lack of criminal intent follows the corresponding non-criminal act to its unintended consequences. (People v. Matthews (1979) 91 Cal.App.3d 1018, 1023; People v. Levitt (1984) 156 Cal.App.3d 500, 508, emphasis in original.)
In his argument to the jury urging them to reject the self defense claim, the prosecutor made it clear that Mr. Victim, an innocent bystander, had suffered as a result of Mr. Defendant’s misguided acts. The prosecutor said:
“And the scary thing about it is that it could have been anyone of us going to Duke’s Cork-N-Bottle that evening.
Could have been anyone like Mr. Victim, going into the store to buy beer, or to buy something else, and had no idea of what had transpired in the store, had no reason to be involved, and he happens to be in the wrong place at the wrong time.
And he hears the shots, he sees the gun, and he seeks protection by the tree, and he is shot.” (RT p. 616.)
The theory that Mr. Victim was injured as an innocent bystander, whether advanced by the prosecution or as the result of the jury’s potential (and ultimate) rejection of the defense theory that Mr. Victim was not an innocent bystander, is precisely the factual situation to which the doctrine of transferred self defense applies.
B. The Evidence of Transferred Self Defense Was Sufficient to Require Instruction Rather than restate the facts from the Appellant’s Opening Brief and the Respondent’s Brief Mr. Defendant incorporates the facts described in the prior briefs. Mr. Defendant submits that the evidence was overwhelming that Mr. Victim was injured as an inadvertent result of what the jury determined to be legitimate acts of self defense by Mr. Defendant directed toward Malicea Aggressive and her friend, Manly Strongarm.
C. The Court Had A Sua Sponte Duty To Instruct On Transferred Self Defense It is well settled that in criminal cases, even in the absence of a request, the trial court must instruct on general principles of law relevant to the issues raised by the evidence. (People v. Castillo (1969) 70 Cal.2d 264, 270-271, fn. 5.) “The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” (People v. St. Martin (1970) 1 Cal.3d 524, 531; People v. Kimble (1988) 44 Cal.3d 480, 503, cert. dn. (1988) 488 U.S. 871, 109 S.Ct. 188, 102 L.Ed.2d 157.) The duty to instruct on general principles closely and openly connected with the facts before the court also encompasses a sua sponte duty to instruct on defenses relied on by the defendant and on the relationship of these defenses to the elements of the charged offense. The trial court’s duty is limited to those situations where the defense is relied on by the defendant, or there is substantial evidence to support the defense and the defense is not inconsistent with the defendant’s theory of the case. (People v. Sedeno (1974) 10 Cal.3d 703, 716, overruled on other grounds, People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12.)
The purpose of this limitation is not only to protect the defendant from potential prejudice if instructions were given that were inconsistent with the defense theory, but also to avoid being unduly burdensome to trial judges. Regardless of the request for special instructions, however, the trial court must act as a neutral arbiter between the contesting parties to guide the jury on the law. People v. Wickersham (1982) 32 Cal.3d 307, 323.) As the California Supreme Court has explained:
“The fulfillment of this obligation ensures that the jury will consider the full range of possible verdicts–not limited by the strategy, ignorance, or mistakes of the parties. The jury should not be constrained by the fact that the prosecution and defense have chosen to focus on certain theories.” (Wickersham, supra, 32 Cal.3d at p. 324.)
In Mr. Defendant’s case, as has been discussed, the applicable law has been clearly set out in prior court decisions and there is no additional burden on the trial court’s obligation to properly instruct. Certainly, in providing correct general instructions that meet the particular facts of the case and are based upon established law, there is no need for the court to feel an undue pressure “to glean legal theories and winnow the evidence for remotely tenable and sophistical instructions.” (People v. Crawford (1968) 259 Cal.App.2d 874, 878.)
The court erred in failing to instruct sua sponte on the doctrine of transferred self defense.
D. The Court’s Error in Failing to Instruct Prejudiced Mr. Defendant The failure to instruct prejudiced Mr. Defendant because the jury was not properly directed to apply the defense of self defense, and particularly as it applied to Mr. Victim, by way of transferred self defense. The court’s erroneous failure to advise the jury of an affirmative defense deprived Mr. Defendant of his right to have the jury determine every material issue pertaining to his case. Reversal is required unless it is possible to determine that although an instruction was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. (People v. Sedeno, supra, 10 Cal.3d at p. 721; People v. Ramkeesoon (1986) 39 Cal.3d 346, 351-352.)
It is evident by Mr. Defendant’s acquittal on two counts of assault that the jury found that he acted in legitimate self defense in firing the weapon in the store parking lot. It is equally apparent that the jury believed that Mr. Victim was an innocent bystander, who was not involved in the dispute between Mr. Defendant and the other people. On that basis, given the nature of the instructions given, it is completely understandable that the jury did not believe that Mr. Defendant had directly acted in self defense concerning Mr. Victim. That reasoning, however, is not in accord with the applicable law, and if properly instructed the jury would have been required to find that Mr. Defendant was not criminally culpable when, as the result of legitimate acts of self defense gone awry, Mr. Victim was inadvertently injured.
[[Note: Victim, who was hiding behind a tree, was shot in the leg by one of several rounds fired by Defendant toward Aggressive and Strongarm. The jury acquitted Defendant of assault on Aggressive and Strongarm on self defense theory. On the facts the DCA determined that because Mr. Victim had come upon the scene and said “Hey, stop that shooting,” he was not a “mere innocent bystander” and Defendant was not entitled to a sua sponte instruction.]]
