Brief Bank # B-742
NOTE: The text of the footnotes appear at the end of the document.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REFUSING DEFENSE INSTRUCTION NUMBER TWO.
A. Relevant procedural history
During appellant’s trial, defense counsel submitted three special jury instructions which he wanted the court to give. (CT 135-137.) One of them, which was titled “Defendant’s Proposed Special Instruction #2,11 read as follows:
[To be added at end of 2d sentence of CALJIC 5.17:] There need not be a reasonable basis for the defendant’s belief in the necessity to defend. That belief may be the product of delusion or simple mistaken perception. (CT 136.)
During the instructions conference, the attorneys and the trial court had the following colloquy, and the trial court made the following ruling, with regard to Special Instruction
THE COURT: Let me just say that on [N]umber [T]wo I think it’s already covered.
(DEFENSE COUNSEL]: I don’t think it’s covered, Your Honor. I got this directly from [FORECITE California] which points out that it is not specifically covered.
THE COURT: From what case?
[DEFENSE COUNSEL]: From [FORECITE California], the service–that deals with subscription service, that deals with Cal Jic, and it points out that there is not a complete statement of the law in 5.17, and that this is a correct statement of the law, and it’s inherent in the concept of unreasonable self defense.
[THE PROSECUTOR]: Judge, if the cited authority that he’s giving is People versus Orate [sic], a case where the Court specifically refused to give 5.17, to argue that 5.17 was incompletely given, and this additional language is supported by the case, is irreconcilable with the holding of the case where they specifically didn’t give it, and the Court did not go on to say that had it been given, the defendant testified, which is the whole theory under orate [sic] for giving this.
THE COURT: I would be denying the proposed special number two. (RT 2482-2483, emphasis added.)
B. Relevant law; application to this case
In People v. Flannel (1979) 25 Cal.3d 668, 674-683, our supreme court reviewed case law from the previous 70 years and ruled that when a defendant kills in “imperfect self-defense,” the crime is voluntary manslaughter, rather than murder. In so ruling, the Court explained the doctrine of imperfect self-defense as follows: “An honest but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury negates malice aforethought, the mental element necessary for murder, so that the chargeable offense is reduced to manslaughter.” (Id., at 674, italics deleted.)
Recently, in In re Christian S. (1994) 7 Cal.4th 768, our Supreme Court considered whether the California Legislature had abolished the doctrine of imperfect self-defense, along with the defense of diminished capacity, when it passed certain legislation amending the Penal Code in 1981. The Court ruled that the Legislature had not done so, and thus confirmed that the doctrine of imperfect self-defense is alive and well today. (Id., at 773-782.)
CALJIC No. 5.17 is the standard instruction used to inform juries about imperfect self-defense. As recited by the trial court in the present case, it told appellant’s jury as follows:
A person who kills another person in the actual but unreasonable belief in the necessity to defend against the imminent peril to life or great bodily injury kills unlawfully does not harbor malice aforethought and is not guilty of murder. This would be so even though a reasonable person in the same situation, seeing and knowing the same facts, would not have had the same belief. Such an actual but unreasonable belief is not a defense to the crime of voluntary or involuntary manslaughter.
As used in this instruction, an “imminent” peril or danger means one that is apparent, present, immediate, and must be instantly dealt with or must so appear at the time to the slayer. (RT 2555-2556.)
As noted above at pp. 27-28, the court denied a defense request to augment CALJIC No. 5.17 with a two-sentence insert stating that a defendant’s belief in the need to defend may, for purposes of imperfect self-defense, be the product of a delusion or a mistaken perception. As also noted above at pp. 27-28, the court’s stated reason for so doing was that the substance of the requested instruction was “already covered.” (RT 2482.) In order to determine whether this ruling was correct, it will be necessary to answer two questions: First, was the refused instruction an accurate statement of the law? Second, if so, was the court correct in concluding that the substance of the refused instruction was “already covered” by other instructions?
The answer to the first of these question “yes.” In deciding Christian S., ante, our Supreme Court reviewed the legislative history of the 1981 Penal Code amendments for signs that, in abolishing the defense of diminished capacity, our Legislature intended to abolish imperfect self-defense as well. (In re Christian S., ante, 7 Cal.4th at 781-782.) The Court’s review of the legislative history materials led it to exactly the opposite conclusion, as shown by this passage from Justice Baxter’s majority opinion:
For example, an extensive analysis of the amendments by the Legislature’s Joint Committee for the Revision of the Penal Code was titled: The Diminished Capacity Defense: Why Senate Bill 54?, and the committee explained, “The recent cases of Dan White in San Francisco and Richard Chase in San Francisco, brought to the public’s attention an area of long standing controversy, the defenses of diminished capacity and insanity in criminal prosecution . . . . [Par.] It [Senate Bill No. 54] would repeal the defenses of voluntary intoxication and diminished capacity.” (Joint Com. for Revision of the Pen. Code Rep. (Sept 3, 1981) p. 1 (1981-1982 Reg. Sess.).)
The same joint committee explained to the Governor’s office that “[t]he defenses of diminished capacity, diminished responsibility, and irresistible impulse are repealed . . . .” (Letter from Joint Com. for the Revision of the Pen. Code to Governor’s Deputy Legal Affairs Sect., Sept. 4, 1981, italics added.) There was no suggestion of eliminating imperfect self-defense. To the contrary, the same analysis stated that “to reduce murder to manslaughter, except in the delusional self-defense kinds of cases, there will have to be a showing of provocation, the traditional basis of manslaughter, to reduce murder to manslaughter.” (In re Christian S., supra, 7 Cal.4th at 781; original italics, brackets and abbreviations; bold underlining added.)
Hence, in deciding Christian S., our Supreme Court indicated that the Legislature had previously recognized that a delusional person may kill in imperfect self-defense, making him/her guilty of manslaughter rather than murder. This portion of Christian S., appellant submits, is more than enough to show that the refused instruction accurately stated the law.
The refused instruction also finds legal support in People v. Uriarte (1990) 223 Cal.App.3d 192, 196-198, a murder case in which two psychiatrists testified the defendant was delusional at the time of the killings, but the court nonetheless refused to instruct on imperfect self-defense. The appellate court ultimately upheld the lower court’s ruling because there was no testimony about what Mr. Uriarte was actually thinking or fearing at the time of the shootings. (Id., at 197-198.) Before so ruling, however, the appellate court made the following pronouncement:
. . . The prosecutor argued that the Flannel principles apply only where there is some reasonable objective basis for the defendant’s unreasonable belief. He asserted that an honest belief caused by voluntary intoxication does not eliminate the malice necessary for murder. [Footnote.] The trial court ultimately refused to give the requested instruction.
Because Uriarte’s theory for requesting the instruction is correct, we were initially sympathetic to his argument that the instruction should have been given. The focus of Flannel is that a person who honestly believes there is an imminent threat to his own life or the lives of others cannot harbor malice. Nowhere does Flannel suggest that only “reasonably unreasonable” defendants may avail themselves of its rationale. A defendant’s mental state is the same when he kills in the honest-but-mistaken belief that the victim was reaching for a gun whether such belief is the product of a delusion or a mistaken interpretation of the victim’s reaching for his car keys. (Id., at 197, emphasis added.)
In view of the holdings in Christian S. and Uriarte, it is clear that the refused instruction accurately stated the law. The propriety of the trial court’s ruling thus depends upon whether the court was correct in concluding the refused instruction was “already covered.” (RT 2482.)
This question will take little time to answer. Nothing in CALJIC NO. 5.17, or in any of the other instructions given by the trial court, told the jury that an honest-but-unreasonable fear of imminent harm may be based solely on a delusion. Absent such language, the jury was free to interpret CALJIC NO. 5.17 just as the prosecutor in Uriarte did – i.e., as requiring that there be some objective, “reasonably unreasonable” basis for a fear of imminent harm. The court was thus mistaken in concluding te requested instruction was “already covered.” (RT 2482.)
In sum, Defendant’s Proposed Special Instruction Number Two accurately stated the law, and it’s substance was not covered by any of the given instructions. Moreover, in contrast to the defendant in Uriarte, Mr. Doe took the stand and specifically averred that he feared for his life when he shot decedent. (RT 685-686.) Hence, in addition to being legally correct, Instruction Number Two was supported by the evidence. The court’s refusal t give it was error.
In refusing to give the requested instruction, the court abrogated Mr. Doe’s right to adequate instructions on a court abrogated Mr. Doe’s right to adequate instruction on a factually supported defense theory. Such an error violates a defendant’s Sixth and Fourteenth Amendment rights to a fair jury trial, compulsory process and due process. (FORECITE California F 5.17b; United States v. Unruh (9th Cir. 1987) 855 F.2d 1363, 1372; Bennett v. Scroggy (6th Cir. 1986) 793 F.2d 772, 777-779; United States v. Escobar de Bright (9th Cir. 1984) 742 F.2d 1196, 1201-1202.) The judgement must therefore be reversed unless the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
The error cannot survive such a standard of prejudice. To be sure, there was substantial evidence to support the prosecution’s version of the shooting, but there was also substantial evidence to support appellant’s version. Doctor Lynch testified that appellant’s I.Q. is 81, that appellant has organic brain impairment, that such a condition can cause a person to perceive a threat where none exists, and that he was not the first professional to conclude appellant has organic brain damage. (See pp. 11-12, supra.) A finding of imperfect self-defense was thus supported by expert testimony.
Such a finding was also supported by lay testimony. Appellant averred that he honestly feared for his life when he shot decedent; more specifically, he said that the man who threatened him at Kentucky Fried Chicken acted like he had a gun, that he assumed decedent was connected with the man, and that he therefore concluded decedent was armed as well. (See PP. 7-8, supra.) Mr. H similarly testified that while he and appellant were waiting for the police, appellant told him, “They threatened me.” (RT 210.)
Hence, there was substantial evidence from which a properly instructed jury could have concluded that because of his delusional state, appellant actually but unreasonably feared for his life when he shot decedent. Since the jury rejected the prosecutor’s argument that the killing was deliberate and premeditated (CT 206, 218-219), it is likely appellant would have received a more favorable result, namely a conviction for voluntary manslaughter, but for the instructional error. Appellant respectfully asks that this Court reverse his murder conviction or, if the government agrees to such a disposition, reduce it to a conviction for voluntary manslaughter.