B-846

Brief Bank # B-846 (Re: F 5.54b [Self-Defense By An Aggressor: No Requirement That Aggressor Verbally Notify Adversary Of Withdrawal].)

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NOTE: The text of the footnotes appear at the end of the document.

Date of Brief: April 2000

Excerpt From

APPELLANT’S OPENING BRIEF

II.

THE TRIAL COURT MISINSTRUCTED THE JURY ON AN ELEMENT OF THE CRIME, LACK OF JUSTIFICATION, WHEN IT MISINSTRUCTED ON THE CIRCUMSTANCES WHEN AN ORIGINAL AGGRESSOR MAY EXERCISE SELF-DEFENSE

A. The Trial Court Incorrectly Instructed the Jury on How an Original Aggressor Needed to Show the Victim that He had Stopped Fighting, before the Original Aggressor Could Exercise Self-Defense Against a Counter-attack

Under California statute, the original aggressor in a fight may use deadly force in self-defense to protect himself against a counter-attack (a) if that exercise of self-defense would have been proper, under the circumstances, if he had not been the original aggressor, and (b) provided that the original aggressor “must really and in good faith have endeavored to decline any further struggle before the homicide was committed.” Penal Code § 197(3). [Footnote 1]

The trial court erred here when it delivered the standard CALJIC instruction on self-defense by an original aggressor, CALJIC 5.54, [Footnote 2] because that instruction incorrectly imposed a higher threshold for using force upon Appellant, as the original aggressor, than does the applicable statute, Penal Code § 197(3).

CALJIC 5.54 imposes a higher threshold than the statute, because the instruction adds to the single statutory requirement of (a) “actually try[ing] in good faith to refuse to continue fighting,” the additional requirements that the original aggressor (b) “clearly inform [the] opponent that he wants to stop fighting” and (c) “clearly [inform] [the] opponent that he has stopped fighting.” By adding these conditions, CALJIC 5.54 makes it harder for the original assailant to establish self-defense than does the statute, because CALJIC 5.54 adds the extra requirements of explicit verbal notification by the original aggressor to the victim of two facts, (1) that he wants to stop fighting, and (2) that he has stopped fighting.

The leading authorities on the exercise of self-defense by an original aggressor are the venerable decisions of People v. Button (1895) 106 Cal. 628, 632, 39 P. 1073, and People v. Hecker (1895) 109 Cal. 451, 462, 42 P. 307. They do not require any such verbal notification to the victim. They merely require that the original aggressor “make known” to the victim, People v. Button, 106 Cal. 632, 39 P. 1074, or “indicate” to the victim, (id.), 106 Cal. at 633, 39 P. at 1075 that his is ceasing fighting, or “fairly notify” the victim “that danger no longer threatens him,” (id.), before the original aggressor has the right to exercise self-defense against a counter-attack by the victim. As the Supreme Court held in People v. Button, 106 Cal. at 632, 39 P. at 1073:

In order for an assailant to justify the killing of his adversary, he must not only endeavor to really and in good faith withdraw from the combat, but he must make known his intentions to his adversary. His secret intentions to withdraw amount to nothing. They furnish no guide for his antagonist’s future conduct. They indicate in no way that the assault may not be repeated, and afford no assurance to the party assailed that the need of defense is gone. (emphasis added)

The Supreme Court similarly held in People v. Hecker, supra, 42 Cal. at 465, 42 P. at 312:

If, on the other hand, Hecker made the first deadly assault, his right to slay Riley in self-defense did not exist, even though willing thereafter to decline further combat until he had in good faith declined and fairly made known to Riley his willingness to do so. (emphasis added)

All these formulations require that the original aggressor “make known” to the victim that he is ceasing fighting. Simply holding a secret desire to stop fighting is not enough. For, unless the original aggressor “makes known” to the victim that has stopped fighting, the victim has no indication of whether he needs to exercise self-defense to protect himself. People v. Button, supra.

None of these formulations, however, require that the original aggressor “make known” to the victim his intent to stop fighting in explicit words, rather than by deeds. To the contrary, it is sufficient for the original aggressor, by his acts or conduct alone, to make known to the victim his intent to stop fighting.

As the Supreme Court held in People v. Button, 106 Cal. at 633, 39 P. at 1075.

In Stoffer v. State, 15 Ohio St. 47, in speaking to this question, the court said: “There is every reason for saying that the conduct of the accused relied upon to sustain such a defense must have been so marked in the matter of time, place, and circumstance as not only clearly to evince the withdrawal of the accused in good faith from the combat, but also such as fairly to advise his adversary that his danger had passed, and to make his conduct thereafter the pursuit of vengeance, rather than measures taken to repel the original assault.” It is also said in State v. Smith, 10 Nev. 106, citing the Ohio case: “A man who assails another with a deadly weapon cannot kill his adversary in self-defense until he has fairly notified him by his conduct that he has abandoned the contest; and, if the circumstances are such that he cannot so notify him, it is his fault, and he must take the consequences.” It is therefore made plain that knowledge of the withdrawal of the assailant in good faith from the combat must be brought home to the assailed. He must be notified in some way that danger no longer threatens him, and that all fear of further harm is groundless. . . . If the subsequent acts of the attacking party be such as to indicate to a reasonable man that he in good faith has withdrawn from the combat, they must be held to so indicate to the party attacked. (emphasis added)

Accordingly, it is the law in California than an original aggressor may rely upon self-defense if he has notified the victim either by word or by deed that he has stopped fighting. Explicit verbal notification is not required. People v. Button, supra; People v. Hecker, supra. Thus, CALJIC 5.54 does not comport with Penal Code § 197(3), because the instruction invents an additional requirement, namely, explicit verbal notification, which the statute does not require.

B. A Correct Instruction on the Exercise of Self-Defense by an Original Aggressor Must Be Given Sua Sponte, because the Prosecution Must Prove the Lack of Justification as an Element of its Case

A trial court has sua sponte duty to give correct instructions relating to a recognized defense to elements of a charged offense. People v. Saille (1991) 54 Cal.3d 1103, 1117. This sua sponte rule explicitly applies to correct instructions on self-defense. People v. Sedeno (1979) 10 Cal.3d 703, 716. [Footnote 3] As the Supreme Court stated in People v. Sedeno, supra, 10 Cal.3d at 716:

The duty to instruct, sua sponte, on general principles closely and openly connected with the facts before the court also encompasses an obligation to instruct on defenses, including self-defense and unconsciousness, and on the relationship of these defenses to the elements of the charged offense.

This rule applies when a defendant is relying upon a defense and/or if there is substantial evidence supporting a defense. (id.) Here, Appellant’s entire defense was that her right to self-defense was revived (a) when she left the store, and (b) when Ms. W launched her counter-attack. Accordingly, the failure to instruct correctly sua sponte on the original aggressor’s statutory right to exercise self-defense was erroneous. People v. Saille, supra; People v. Sedeno, supra.

As noted in section I, supra, the prosecution has the burden of proving beyond a reasonable doubt, as an element of the crime, that the homicide was not justified. People v. Banks, supra, CALJIC 5.15. Accordingly, an instruction such as CALJIC 5.54, which makes it harder to establish self-defense because it adds an extra requirement, namely, explicit verbal notification, improperly eases the prosecution’s burden to prove beyond a reasonable doubt the necessary element of the absence of justification. When an instruction, such as this, thus relieves the prosecution of its full burden to prove every element of the crime beyond a reasonable doubt, it violates Appellant’s 5th and 14th Amendment due process rights. Carella v. California (1989) 491 U.S. 263; Sandstrom v. Montana (1979) 442 U.S. 510.

Where, as here, the evidence is sufficient to establish the original assailant’s right to self-defense, a correct instruction thereon must be given sua sponte. Use Note to CALJIC 5.54; People v. Saille, supra; People v. Bloyd (1987) 43 Cal.3d 333, 354; People v. Sedeno, supra. The trial court correctly ruled that the evidence was sufficient to warrant an instruction on this point when it agreed to give CALJIC 5.54. Accordingly, the trial court’s failure to instruct correctly on this point sua sponte was error.

C. This Instructional Error Was Prejudicial

Because the failure to instruct the jury correctly on a necessary element of the crime, lack of justification, is federal constitutional error, the applicable standard of prejudice is the Chapman harmless beyond a reasonable doubt test. Accordingly, any instructional error which lightened the prosecution’s burden of proving that Appellant did not “really and in good faith . . . endeavor[ ] to decline any further struggle,” was prejudicial, unless harmless beyond a reasonable doubt.

The instructional error in CALJIC 5.54 was prejudicial as follows: Appellant largely defended on the right of the original aggressor to utilize self-defense after she exited the store. Thus, Appellant had to show, and did show, that she “really and in good faith . . . endeavored to decline any further struggle,” within the meaning of Penal Code § 197(3), before she stabbed Ms. W outside the store. The undisputed testimony of several witnesses established that Appellant did exactly that, when she ceased attacking Ms. W, and turned her back on Ms. W, and walked out of the store, and began to walk away from the doorway of the store. By turning her back and walking out the door, and away from the store, Appellant made known to Ms. W, by her acts and deeds, that she was “really and in good faith endeavor[ing] to decline any further struggle,” within the meaning of Penal Code § 197(3). This notification by conduct was sufficient. People v. Button, supra; People v. Hecker, supra.

The testimony of the only eyewitness to view both fights, Mr. G, makes it most probable that the fatal blows were inflicted outside the store, rather than inside the store. As noted, Mr. G testified that he was only aware of one knife wound, the cut to the face, being inflicted inside the store. He did observe Appellant strike Ms. W in the body and in the back outside the store. This testimony makes it most likely that the fatal wounds were inflicted outside the store. Accordingly, the accuracy of CALJIC 5.54 was crucial to this case.

However, CALJIC 5.54 imposed two new burdens upon the withdrawing aggressor, namely, that she “inform the victim that she “wants to stop fighting,” and that she “inform” the victim that she “has stopped fighting.” By adding these burdens, CALJIC 5.54 made it easier for the prosecution to prove lack of justification, and made it harder for Appellant to raise a reasonable doubt as to justification.

The common meaning of the word “inform” is to make explicit verbal or written communication. See, e.g. Webster’s Third New International Dictionary (unabridged) (Merriam Webster, 1966) p. 1160, which defines “inform,” in part, as follows: “to communicate knowledge to; make acquainted; TELL, ADVISE, ENLIGHTEN (accused shall enjoy the right . . . to be informed of the nature and cause of the accusation — U.S. Constitution).”

Thus, when the jury heard CALJIC 5.54, it most likely understood it to require Appellant to verbally “inform” Ms. W (a) that she was done fighting and (b) that she did not want to fight any more, before Appellant left the store, in order for Appellant to have any right to self-defense outside the store. However, under CALJIC 5.54, the jury was essentially required to reject Appellant’s right of self-defense outside the store, simply because there was no evidence that Appellant spoke at all to Ms. W while leaving the store. Thus, CALJIC 5.54 effectively denied Appellant the right of self-defense outside the store.

It is clear that the jury understood the word “inform” in these instructions to bear its literal meaning, and to require Appellant to explicitly to tell Ms. W in words that she was done fighting, and that she did not want to fight any more, before the right of self-defense could apply, because that is how counsel argued the instruction.

First, the prosecutor read CALJIC 5.54 twice to the jury, using the word “inform” four times. (RT 658)

Second, the prosecutor argued to the jury that Appellant, as the aggressor, could not rely on self-defense, because she failed explicitly to tell Ms. W in words that she was done fighting:

There is a reason the law says the aggressor has to take certain steps before using self-defense. Because the law recognizes and realizes the person who is being attacked by somebody might respond by picking up some kind of weapon, and has every right to do so unless something changes, and that something that must change is their attacker must do what the law requires, which is back away and communicate, inform that victim, “I don’t want to the (sic) do this anymore. I’m sorry. I don’t want to do it ground. “It’s over. I don’t have it anymore.” (RT 663)

Third, the prosecutor repeated his argument that Appellant, as the aggressor, could not rely upon self-defense because she did not explicitly tell Ms. W, in words, that she wanted to stop fighting, and that she had stopped fighting:

She kept that knife in her hand. She pulled it out in the store. Walked outside. Never dropped that knife till she tossed it under a car after she stabbed Ms. W to death. Is that retreating? Is that informing the person that you no longer wish to be involved in that conflict? “I am sorry I just stabbed you. Let me put my knife down. Let’s make friends.” No. (RT 663-664)

Thus, the prosecutor repeatedly told the jury that Appellant, as the mutual aggressor, could not rely on self-defense in the second fight unless she had explicitly and verbally told Ms. W that she was done fighting. This caused the jury to understand that Appellant had no right to self-defense outside the store unless she had directly told Ms. W in words that she was done fighting. This improperly caused the jury to believe that Appellant had the burden of explicitly announcing her plans. As shown, this assertion improperly states the law, and improperly eased the prosecution’s burden of proving lack of justification beyond a reasonable doubt.

In the alternative, it might be contended that there is some ambiguity in the wording of CALJIC 5.54 as to whether the necessary informing has to be done explicitly and verbally, or whether it may be non-verbally by conduct. In the event that this instruction is deemed ambiguous, the rule is as follows: If an instruction is potentially ambiguous, the adequacy of the instruction is evaluated on the basis of how a reasonable jury is likely to have understood it. Estelle v. McGuire (1991) 502 U.S. 62, 72, 112 S.Ct. 475, 481-482, 116 L.Ed.2d 385; Boyde v. California (1990) 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316; Wade v. Calderon (9th Cir. 1994) 29 F.3d 1312, 1319.

Argument of counsel is the key factor in determining how a jury understood an instruction, or whether it was reasonably likely that the jury misunderstood an instruction, or applied it in an unconstitutional way. Estelle v. McGuire, supra; Caldwell v. Mississippi (1985) 472 U.S. 320, 105 S.Ct. 2633 (death sentence reversed when inaccurate prosecutorial argument misleads jury as to applicable law); Griffin v. California (1965) 380 U.S. 616, 85 S.Ct. 1229 (conviction reversed when inaccurate prosecutorial argument misleads jury regarding inferences which may be drawn from defendant’s exercise of 5th Amendment right not to testify); and see California v. Brown (1987) 479 U.S. 538, 546, 93 L.Ed.2d 934 at 943, concurring opinion of O’Connor, J. (instruction deemed proper when read together with prosecutor’s argument thereon); Yates v. Evatt (1991) 500 U.S. 391, 408, n. 13 (trial judge’s instruction is understood as prosecutor argued it).

In this case, the prosecutor repeatedly told the jury that Appellant could not rely upon self-defense because she did not explicitly tell Ms. W in words that she was done fighting. This argument misstated the law. Penal Code § 197(3); People v. Button, supra; People v. Hecker, supra. This argument caused the jury to misunderstand how it should apply the law of self-defense, and destroyed Appellant’s defense that she had the right to exercise self-defense in the fight outside the store. Because the jury is presumed to have followed this interpretation of the instruction, Appellant’s conviction should be reversed, because the instruction, as argued, improperly eased the prosecution’s constitutionally mandated burden of proving lack of justification. [Footnote 4]

Excerpt From The

APPELLANT’S REPLY BRIEF

II.

THE TRIAL COURT MISINSTRUCTED THE JURY ON AN ELEMENT OF THE CRIME, LACK OF JUSTIFICATION, WHEN IT MISINSTRUCTED ON THE CIRCUMSTANCES WHEN AN ORIGINAL AGGRESSOR MAY EXERCISE SELF-DEFENSE

A. Respondent Implicitly Admits Several of Appellant’s Arguments

Respondent does not deny, and implicitly admits, the following arguments in the AOB:

1. That the prosecution must prove as a necessary element of murder that there was no right to justification or self-defense;

2. That Penal Code § 197(3) allows an original aggressor to exercise self-defense by “really and in good faith endeavor[ing] to decline any further struggle,” even if the original aggressor does not verbally notify the original victim that the aggressor has withdrawn from the fight;

3. That if CALJIC 5.54 were understood by the jury to require the original aggressor to verbally notify the original victim that she had withdrawn from the combat, then the instruction would be defective;

4. That, if an instruction such as CALJIC 5.54 is ambiguous, the adequacy of the instruction is evaluated on the basis of how a reasonable jury is likely to have understood it, and that argument of counsel is the key factor in determining how the jury understood the instruction; and

5. That the instructional error, if error, lightened the prosecutor’s burden of proving a necessary element of the crime, and thus that the standard of prejudice for any such error is the federal beyond a reasonable doubt test, Chapman v. California (1967) 386 U.S. 18.

B. Respondent’s Arguments on this Issue Are Without Merit

>0000002 Respondent claims that the challenged instruction does not require verbal notification of withdrawal; that the prosecutor did not tell the jury in argument that the instruction called for verbal notification of withdrawal; that if anything was defective with the instruction, that it was Appellant’s fault, because trial counsel did not ask to have the instruction modified; and (4) that any error was harmless. Respondent is wrong on all counts.

1. The meaning of the term “inform”

The parties engage in a battle of the dictionaries on the question of whether the word “inform” as used in CALJIC 5.54 requires verbal notification, or whether non-verbal communication is enough. Suffice it to say that there are many definitions of the word “inform”; that some definitions require verbal notification, while others do not; and thus that a reasonable juror could conclude from the words of CALJIC 5.54 that the word “inform” required verbal notification.

CALJIC 5.54 contains two notification requirements.

¶2 requires that the [original aggressor] “has clearly informed [his] [her] opponent that [he] [she] wants to stop fighting.”

¶3 requires that “[he] [she] has clearly informed [his] [her] opponent that [he] [she] has stopped fighting.”

Respondent spends all its time focusing on the latter of those requirements (¶3), namely, that the original aggressor “has clearly informed her opponent that she has stopped fighting.” The parties agree that this aspect of the instruction could theoretically be satisfied by non-verbal communication, such as when Appellant turned her back on Ms. W, and walked out of the video store.

However, even if the parties agree that this requirement could theoretically be satisfied by non-verbal communication, that does not answer the question of whether the jury thought this requirement could be satisfied by non-verbal communication. As shown, reasonable jurors could have thought that the term “inform” as used in CALJIC 5.54 required verbal notification, especially as the prosecutor argued it. (See subsection (2) infra.)

Moreover, Respondent conspicuously ignores the requirement in CALJIC 5.54, ¶2, that the original aggressor also “clearly inform[ ] her opponent that she wants to stop fighting.” (emphasis added) Respondent fails to contend or show, because it cannot, that this requirement can be satisfied in a non-verbal manner. The requirement that the original aggressor “inform” her opponent that she “wants to” stop fighting calls for communication of a mental state. However, it must be communicated in some other way than by Appellant showing that she actually has stopped fighting. Otherwise there is no difference between ¶2 of the instruction (“wants to stop fighting”) and ¶3 of the instruction (“has stopped fighting”). There must be a difference between these two paragraphs of the instructions, because instructions, like statutes, should be interpreted not to contain surplusage. Accordingly, if the intent stated in ¶2 (“wants to stop fighting”) must be communicated in some way other than by the act of “stop[ping] fighting” (as in ¶3), then it must be communicated verbally. There is no other way.

Accordingly, even if, arguendo, ¶3 of the instruction might, in the abstract, be read to allow non-verbal communication, ¶2 of the instruction may only be read to allow verbal communication. Respondent does not argue otherwise.

2. The prosecutor’s argument caused the jury to understand the instruction to require verbal notification

If, arguendo, CALJIC 5.54 does not clearly require verbal notification, then, at worst, as shown by the battle of the dictionaries, it is ambiguous on this point. Respondent does not deny that, when an instruction is ambiguous, we look at argument of counsel to determine how the jury is deemed to have understood it. Estelle v. McGuire (1991) 502 U.S. 62, 72; 116 L.Ed.2d 385.

The prosecutor made two paragraphs of argument on the meaning of this instruction. First he argued

There is a reason the law says the aggressor has to take certain steps before using self-defense. Because the law recognizes and realizes the person who is being attacked by somebody might respond by picking up some kind of weapon, and has every right to do so unless something changes, and that something that must change is their attacker must do what the law requires, which is back away and communicate, inform that victim, “I don’t want to the (sic) do this anymore. I’m sorry. I don’t want to do it anymore. It’s over. It’s over.” Throw the knife down to the ground. “It’s over. I don’t have it anymore.” (RT 663) (emphasis added)

Then the prosecutor argued:

Both paragraphs of this argument told the jury what an original aggressor had to do before her right to self-defense revived. Both paragraphs told the jury that the original aggressor had to speak words to the victim to communicate her intent. No one argued to the contrary.

Respondent claims that the prosecutor merely argued those phrases as an “example” of how Appellant might have informed Ms. W of her intent. (RB 34) The claim is without merit. Nowhere did the prosecutor tell the jury that those spoken phrases were merely an “example” of both verbal conduct and non-verbal conduct.

Accordingly, the only way the instruction could reasonably have been understood by the jury, was as the prosecution argued it, which was that explicit verbal notification of withdrawal was required.

3. The fault was not that of Appellant for failing to ask that the instruction be modified; correct instruction was required sua sponte

Respondent claims that, if there was something wrong with CALJIC 5.54, then it was Appellant’s fault for failing to request that it be modified. (RB 33) Respondent is incorrect. The lack of justification, or right to self-defense, is a necessary element of the crime of murder. The trial court has a sua sponte duty to instruct correctly upon such a necessary element. People v. Saille (1991) 54 Cal.3d 1103, 1117; People v. Sedeno (1979) 10 Cal.3d 703, 716. [Footnote 5]

4. The instructional error was prejudicial

Respondent suggests, although it does not explicitly argue, that any instructional error was harmless. (RB 34) Respondent is incorrect.

First, Respondent claims that the evidence established that Appellant did not fully withdraw from the first fight, because, after she walked outside the video store, she was supposedly standing still and “waiting outside” the store. (RB 24, 34; RT 456-458) Contrary to this claim, the weight of the evidence was that Appellant was walking away from the store, not waiting outside it. At the worst, the evidence was conflicting on this point.

Prosecution witness Ms. S testified that after Appellant left the store, Appellant walked away from the doorway and said to Ms. S “Let’s go.” Only after Ms. S yelled that Ms. W was approaching, did Appellant turn and rush toward Ms. W. Appellant Doe testified that after she left the store, she said to Ms. S “Let’s go.” Then she took about three steps on the sidewalk, away from the store, before Ms. S yelled for her to watch out. Prosecution witness Mr. G was the only person who testified that Appellant was “waiting” outside the store. However, Mr. G testified that his attention was on Ms. W when she grabbed the baseball bat from behind the counter and ran after Appellant. Thus Mr. G could not have seen or known whether Appellant was walking away from the store, or simply waiting there, during the time that Ms. W seized the bat and ran after Appellant, because Mr. G was not watching Appellant at that time. Instead, he was watching Ms. W.

Accordingly, the weight of the evidence was that Appellant fully withdrew from the fight, when she walked out of the store, and started to walk away from the store. At the worst, the evidence was conflicting, and presented a question for the jury. Thus, the error in CALJIC 5.54 was prejudicial.

Second, Respondent claims any instructional error was harmless because, supposedly, trial defense counsel’s jury argument did not rely upon the defense of withdrawal from the first fight and then revival of the right to self-defense in the second fight. Instead, claims Respondent, Appellant relied exclusively upon a continuing right to self-defense which arose in the first fight when only Ms. W, and not Appellant, was the original aggressor. (RB 34-35) Respondent is incorrect. Appellant did rely, in the alternative, upon the defense of withdrawal and revival of the right to self-defense in the second fight.

Trial defense counsel explicitly argued that there were “two separate and distinct fights,” and explicitly argued that the prosecutor was wrong when he claimed “this was one continuous fight.” (RT 688) Trial counsel also explicitly argued several times that Appellant had the right to self-defense in the second fight because Ms. W attacked her with a baseball bat in the second fight. (RT 672, 676, 689)

In addition, the prosecutor argued, to the contrary, that Appellant did not meet the criteria for the use of self-defense by the original aggressor in the second fight. (RT 658-659, 663-664)

Accordingly, the arguments of both defense counsel and the prosecutor directly put before the jury the question of whether Appellant had the right to use self-defense in the second fight. Thus the incorrect instructions on that issue were prejudicial.

OPENING BRIEF FOOTNOTES:

Footnote 1: Penal Code § 197(3) reads in pertinent part as follows:

Homicide is also justifiable when committed by any person in any of the following cases:

1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or, . . .

3. When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed; . . .

Footnote 2: CALJIC 5.54, self-defense by an aggressor, states:

The right of self-defense is only available to a person who initiated an assault if [he] [she] has done all the following:

1. [He] [She] has actually tried, in good faith, to refuse to continue fighting;

2. [He] [She] has clearly informed [his] [her] opponent that [he] [she] wants to stop fighting; and

3. [He] [She] has clearly informed [his] [her] opponent that [he] [she] has stopped fighting.

After [he] [she] has done these three things, [he] [she] has the right to self-defense if [his] [her] opponent continues to fight.

This instruction was delivered here at RT 730, CT 294.

Footnote 3: This aspect of Sedeno was recently approved by the Supreme Court in People v. Breverman (1988) 19 Cal.4th 142, 157.

Footnote 4: Appellant’s argument should eventually result in a revision of CALJIC 5.54, so as to cause that instruction accurately to reflect the provisions of Penal Code 197(3). One way to revise the instruction (see p. 18, n. 7, supra) would be to delete the current word “informed”, and to substitute in its stead the phrase “made known to,” or the phrase “made known to, by act or words.”

REPLY BRIEF FOOTNOTES:

Footnote 5: Appellant cited these authorities at AOB 21. Respondent ignores them.