Brief Bank # B-757 (Re: F 5.12 n8 [Antecedent Threat Doctrine Applies To Recent Threats Or Violence By Victim].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION THREE
THE PEOPLE OF THE STATE OF CALIFORNIA, )
)
Plaintiff and Respondent, ) Appeal #A000000
)
v. ) Alameda County
) Superior Court
JOHN DOE, ) No. 000000
)
Defendant and Appellant. )
APPEAL FROM THE JUDGMENT OF THE SUPERIOR
COURT OF THE STATE OF CALIFORNIA FOR THE
COUNTY OF ALAMEDA
Honorable Joseph Hurley, Presiding
Excerpt from
APPELLANT’S REPLY BRIEF
JIM FAHEY
State Bar #122029
P.O. Box 4956
Arcata, CA 95518-4956
Telephone: (707) 822-5776
Attorney for Appellant
By Appointment of the Court of
Appeal under the First
District Appellate Project’s
Independent Case System
C. Respondent’s second contention
Respondent appears to contend that the antecedent threats rule applies only to threats made a substantial amount of time before the confrontation in question. Respondent begins this contention by noting that the instruction at issue in People v. Bush (1978) 84 Cal.App.3d 294, 303, n. 2, alluded to threats “made previously to the transaction complained of.” (RB 13.) After observing that FORECITE F 5.12a contains no such language, respondent makes the following pronouncement:
A review of cases makes [it] clear that the Forecite instruction distorts the antecedent threats doctrine. The doctrine clarifies the law of self-defense where the requirement of imminent danger otherwise might appear to render irrelevant evidence of remote threats. A proper instruction allows the jury to take earlier threats in other incidents, not immediate ones as it this case, into consideration to determine whether a reasonable person would act more quickly or more harshly than is otherwise justified, assuming the defendant reasonably believed greater peril existed than he otherwise would have because of those remote threats. A review of the cases also shows the threat in the instant case–which occurred in the brief moments before the shooting itself–was either irrelevant or, at best, marginally relevant to the case. (RB 13-14.)
Respondent follows this pronouncement with brief discussions of three cases cited in AOB, People v. Moore (1954) 43 Cal.2d 517, People v. Torres (1949) 94 Cal.App.2d 146 and People v. Bush, supra. After noting that the threats in Moore took place over a period of time starting four years before the killing, and that the threat in Torres occurred two weeks before the killing, and that the threat in Bush occurred in the previous year, respondent argues decedent’s threat occurred “bare moments” before the shooting. (RB 14-15.)
Respondent’s position is insupportable. As respondent acknowledges, appellant’s testimony indicated there was enough of an interlude between decedent’s outbursts for him to go to his room and put on a pair of shoes. (RT 921-925.) Hence, it is reasonable to infer decedent was gone for two or three minutes, perhaps longer, before he resumed his eruption. Respondent suggests no logical reason why, and cites no authority holding that, antecedent threats which occurred minutes earlier are any less subject to the Moore rule than ones which occurred days, weeks, months or years before. Indeed, if respondent’s position is well-taken, one must then wonder at precisely what point threats become sufficiently “antecedent” to trigger the rule. After twelve hours? Two weeks? Eight and one-half months? And whatever the magic amount of time is, why is that the point at which the threats become sufficiently antecedent?
If anything, the law should be the opposite of what respondent advocates. That is, prior threats which were made recently, and especially very recently, logically should be more terrifying than ones made long ago. After all, who is likelier to pose a deadly risk to a person–someone who credibly threatened that person’s life an hour ago, or someone who did so 25 years ago?
Significantly, appellant has found only two cases which address the position now advanced by respondent, and both of them reject it. In State v. People’s (1981, Mo.) 621 S.W.2d 324, the reviewing court held as follows:
The developed law of self-defense requires the special attention of the jury to evidence of prior threats …. A mere direction to the jury to consider such proofs does not suffice …. In a word: such evidence, contrary to contention, serves the duplicate role as proof of the fact of aggressor and as proof of the fact of the reasonableness of the apprehension at the time of resort to physical force for defense. [Citations.] That evidence, so salient to the defense, becomes part of the law of the case and is given to the jury as a component of basic self-defense instruction. [Citations.] Thus, these incidents of prior threat of violence are submitted to explain the conduct of the defendant at the time of resort to defense,, and not at the time of a determined provocation by the victim. They encompass for purpose of instruction any threat or violence by the victim upon the defendant prior to the act of defense, whether contemporaneous with that conduct or less proximate to that event. (Id., at pp. 327-328, emphasis added.)
Similarly, in Quinlivan v. State (1989, Ala.) 555 So.2d 802, the reviewing court held that an antecedent threats instruction is required “when a threat is made by a victim at or about the time of a fatal altercation, as well as when threats are made by a victim prior to an incident causing his death.” (Id., at 804, emphasis added.)
In sum, neither case law nor logic supports respondent’s position. Hence, while the prior threat in the instant case was indeed made a short time before the fatal encounter, that fact cannot justify the absence of an antecedent threats instruction. Respondent’s contrary argument must be rejected.
