Brief Bank # B-977 (Re: F 5.17e [Imperfect Self-Defense: Definition Of “Wrongful Conduct”].)
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Date of Brief: June 2004
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
vs.
JOHN DOE,
Defendant and Appellant.
_____________________________________
APPELLANT’S OPENING BRIEF
ON APPEAL FROM THE JUDGMENT OF THE
SUPERIOR COURT, COUNTY OF SANTA CLARA,
THE HONORABLE JOYCE ALLEGRO, JUDGE PRESIDING
SIXTH DISTRICT APPELLATE PROGRAM
DALLAS SACHER
Assistant Director
State Bar #100175
100 N. Winchester Blvd., Suite 310
Santa Clara, CA 95050
(408) 241 -6171
Attorneys for Appellant,
JOHN DOE
VI.
PURSUANT TO THE DUE PROCESS CLAUSE OF THE FEDERAL CONSTITUTION, THE CONVICTIONS FOR ATTEMPTED MURDER MUST BE REVERSED SINCE CALJIC NO. 5.17 CONTAINS ERRONEOUS LANGUAGE REGARDING IMPERFECT SELF DEFENSE. [Footnote 1]
The trial court gave CALJIC No. 5.17 which is the standard instruction on imperfect self defense. Insofar as No. 5.17 contains a prejudicial defect, the three counts of attempted murder must be reversed.
Under California law, a defendant is entitled to rely on the theory of imperfect self defense when the record contains substantial evidence that he actually, but unreasonably, believed in the need to defend himself against imminent death or great bodily injury. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) If the jury accepts the defense, the proper verdict is attempted voluntary manslaughter since imperfect self defense serves to negate the specific intent element of attempted murder. (Ibid.)
Here, there was unquestionably substantial evidence to support an imperfect self defense theory since appellant testified that he believed that Mr. C was about to shoot him. (RT 1197.) Given this evidence, the trial court read CALJIC No. 5.17 to the jury.
“A person who attempts to kill another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury attempts to kill unlawfully, but does not harbor malice aforethought and is not guilty of attempted 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 attempted voluntary manslaughter.
“As used in this instruction, an ‘imminent’ peril means one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the perpetrator.
“However, this principle is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary’s use of a force, attack or pursuit.” (RT 1527-1528, CT 450, emphasis added.)
As the emphasized portion of the instruction shows, No. 5.17 advised the jury that imperfect self defense is unavailable to a defendant whose “unlawful or wrongful conduct” created the circumstances which allowed for his adversary’s use of force. This language is incorrect since it is not mere “unlawful or wrongful” conduct which serves to negate imperfect self defense.
As the California Supreme Court has made crystal clear, it is only aggravated and illegal conduct which will serve to negate imperfect self defense. The “wrongful conduct” in question must be in the nature of “the initiation of a physical assault or the commission of a felony . . . .” (In re Christian S. , supra, 7 Cal.4th 768, 773, fn. 1.) [Footnote 2]
Obviously, No. 5.17 goes seriously wrong insofar as it provides that any “wrongful” conduct disallows the defense. Clearly, this standard inappropriately deprives a large class of defendants of a theory which they are legally entitled to raise. Should there be any doubt on this point, a review of the seminal Supreme Court cases will alleviate that doubt.
In People v. Flannel (1979) 25 Cal.3d 668, defendant had a running feud with one Charles Daniels whose daughter appellant dated and eventually married. Daniels objected to defendant’s treatment of his daughter, and defendant reciprocated with an objection to Daniel’s interference in his private affairs. Both men had threatened each other’s life and in January, 1976 defendant attacked Daniels by kicking him in the chest and head and hitting him with a glass. For this incident, the District Attorney held a citation hearing and warned the two men to avoid each other. (Id., at p. 673.)
In June of that same year, the fatal confrontation occurred. That morning, defendant had consumed four tall cans of beer and a shot or two of whiskey. In the afternoon, he drank with some friends in front of a building in Oakland. He was there when he saw Daniels approaching from nearby. Defendant retrieved his gun from the trunk of his car. Rather than avoid Daniels, as warned by the District Attorney, defendant confronted him with his hand on the gun. Daniels told defendant not to mess with him; he said that they were not supposed to be around each other, and Daniels began to back away from defendant. As he did so, he waved defendant away with one hand as he kept his other hand near his back pocket where he was known to keep a knife. Defendant then challenged Daniels to pull his knife, drew his gun, extended his arm full length and fired one shot into Daniels’ temple from a distance of about two feet. (Id., at pp. 673-674.)
This is a rendition of the facts giving rise to the first formulation of the doctrine of imperfect self-defense in California. In this rendition, defendant committed a multitude of acts that might be deemed unlawful or wrongful or both, beginning with his earlier assault on Daniels, through his ignoring of the warning of the district attorney, through his daytime and public drinking, through his obvious intent to seek a quarrel (whether or not in good faith), right down to the final assault with a deadly weapon, which indeed would have justified Daniels himself to act in perfect or imperfect self-defense.
Plainly, the “unlawful or wrongful conduct” language of No. 5.17 is inconsistent with Flannel. There, the defendant engaged in any number of illegal or wrongful acts. However, he was still entitled to rely on an imperfect self defense theory.
People v. Barton (1995) 12 Cal.4th 186 is to the same effect. In Barton, defendant’s daughter, Andrea, had a traffic encounter with Marco Sanchez, who, according to most of the witnesses, had honked his horn at her when her car stalled in the intersection. Andrea responded with a rude gesture, whereupon Sanchez cut her off, forcing her to swerve to the side of the road. Sanchez then drove his car next to hers and spat on the closed passenger window. (Id., at p. 191.)
Andrea drove to her father’s nearby real estate office and related these events. Defendant suggested that they look for Sanchez. Defendant had a semiautomatic weapon in his pocket, which, because he dealt in large sums of cash, he was licensed to carry, but for business purposes only. (Ibid.)Defendant and Andrea found Sanchez’s car in a nearby shopping center. Defendant found Sanchez himself in one of the stores. There was an argument between the two men. Defendant wagged his finger in Sanchez’s face and swore at him. One witness described Sanchez as also angry and swearing, but another witness described him as frightened and defensive. In any case, Sanchez left the store followed by defendant and Andrea, who returned to the store a minute later and told the cashier to call the police because Sanchez’s car “is going to get really thrashed.” (Barton, supra, 12 Cal.4th at p. 191.)
Sanchez, in the meantime, had entered another store, talked briefly with his sister-in-law, left, and walked rapidly to his car. He opened the driver’s door and got in; but before he had a chance to close the door, defendant, standing there, drew his gun and moved in front of the door to prevent its closing. Defendant assumed a “police stance”, holding his gun extended, with his knees slightly bent. One witness heard defendant say, “‘Get the fuck out of the car or I’ll shoot you.'” He was also heard to say repeatedly that if Sanchez did not “drop the knife'” or “‘put the knife away,'” defendant would “‘blow [his] head off.'” No witness saw Sanchez with a knife. Some witnesses had seen Sanchez make an abrupt movement just before defendant shot and killed him; others saw no such movement. (Id., at pp. 191-192.)
These were the facts of Barton in which the Supreme Court found instruction on imperfect self-defense justified. (Id., at pp. 202-203.) But consider Mr. Barton’s “unlawful” and “wrongful” acts. Surely it was unlawful, and at least wrongful, to carry a concealed weapon permitted for business purposes only to an aggressive encounter whose purpose was distinctly not for business purposes. Along these same lines, seeking the encounter at all might in some eyes be viewed as wrongful. Defendant’s wagging his finger in Sanchez’s face and swearing at him might in some eyes — and not unreasonably, — be viewed as an aggression. There was, further, a threat by defendant to “trash” Sanchez’s car, which by most lights would be seen as wrongful. It is also clear from the court’s rendition of the evidence, that defendant was waiting for Sanchez at Sanchez’s car, which looks more like a wrongful ambush than self-defense. Finally, before Sanchez could even close the door, defendant had his gun pointed at the man, and if Sanchez in fact had made an abrupt movement whose purpose was to retrieve a knife or weapon, Sanchez, under these facts, had a right to perfect self-defense. Thus, if imperfect self-defense were not available when the defendant’s “unlawful or wrongful conduct created the circumstances which legally justified his adversary’s use of force,” then the Supreme Court was wrong in Barton. Since the Supreme Court cannot be wrong in this matter, No. 5.17 must be wrong.
The effect of the error in this case was to deprive appellant of a proper defense theory. Thus, the error is reversible per se under California law. (People v. Stewart, supra, 16 Cal.3d 133, 141; People v. Lemus, supra, 203 Cal.App.3d 470, 478.)
Assuming arguendo that harmless error analysis is appropriate, it is the People’s burden to establish that the error was harmless beyond a reasonable doubt. (See Middleton v. McNeil (2004) __ U.S. __ [158 L.E.2d 701, 706-707] [construing a different defect in No. 5.17]; Bradley v. Duncan (9th Cir. 2002) 315 F.3d 1091, 1099.) On this record, the People cannot satisfy their burden of persuasion.
Based on the government’s version of the facts, there was ample evidence that appellant engaged in “wrongful” conduct prior to the shooting. If Mr. C was to be believed, appellant precipitated the brawl in June 2000. Similarly, Mr. C testified that appellant was an active player in the “what’s up” hand gestures at both the gas station and on the freeway. Since most jurors would view this behavior as “wrongful,” it is manifest that rational jurors may well have disregarded the imperfect self defense theory on the basis of the error in No. 5.17. Given these circumstances, the three counts of attempted murder must be reversed. (See People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262-1264 [failure to give No. 5.17 was reversible error].)
FOOTNOTES:
Footnote 1: Appellant acknowledges the fine work of attorney Mark Greenberg who drafted a portion of this argument.
Footnote 2: People v. Hardin (2000) 85 Cal.App.4th 625 provided a qualification of Christian S.. There, the defendant acted illegally when he trespassed into the victim’s home. Although this conduct constituted neither an assault nor a felony (i.e. trespass is a misdemeanor), the court held that the defendant could not rely on imperfect self defense since his act of trespassing allowed the victim to exercise her right as a homeowner to use deadly force pursuant to Penal Code section 198.5. (Id., at p. 634.) Obviously, Hardin is distinguishable from the case at bar since section 198.5 is inapplicable to the instant facts.
