F 5.17

F 5.17 n1 Imperfect Self-Defense Reaffirmed By California Supreme Court.

In In re Christian S. (94) 7 C4th 768 [30 CR2d 33], the California Supreme Court held that the doctrine of imperfect self-defense has not been eliminated by the legislature. Thus, an actual fear of imminent harm, even if unreasonable, may negate both express and implied malice. (In re Christian S., 7 C4th at 780, and fn 4.) This holding was based upon the court’s conclusion that PC 188 requires that the defendant intend to act unlawfully.

F 5.17 n2 Imperfect Self-Defense: Instruction Warranted If Ordinary Self-Defense Instruction Is Warranted.

If the record contains substantial evidence of ordinary self-defense, then there is also substantial evidence of imperfect self-defense. (People v. Viramontes (2001) 93 CA4th 1256, 1262 [115 CR2d 229]; see also People v. DeLeon (92) 10 CA4th 815 [12 CR2d 825].) This is so because self-defense requires both an honest and reasonable belief in imminent peril while imperfect self-defense requires only an honest belief. If there was substantial evidence of the defendant’s “honest belief” for self-defense purposes, there must also be substantial evidence of his “honest belief” for imperfect self-defense purposes. (DeLeon 10 CA4th at 824; see also, People v. Ceja (94) 26 CA4th 78, 88-91 [31 CR2d 475], dis. op.)

F 5.17 n3 Imperfect Self-Defense: Inconsistency With CJ 5.52.

People v. Thomas (90) 219 CA3d 134, 144-45 [267 CR 908], concluded that there is no inconsistency between CJ 5.52 and CJ 5.17. However, there was no request in Thomas for instructions clarifying the relationship between normal self-defense and imperfect self-defense. If requested, such an instruction should be given to eliminate any potential for confusion.

F 5.17 n4 Application Of Imperfect Self-Defense To Attempted Murder: Adaption Of CALJIC Instructions.

[See Instruction Package # I-852 for a package of instructions modifying CALJIC to provide for application of imperfect self-defense to attempted murder.]

F 5.17 n5 Imperfect Self-Defense: Requirement That Defendant Believe Lethal Force Is Necessary.

In order to warrant a conviction of manslaughter rather than murder based upon imperfect self-defense the defendant must honestly believe that serious injury is imminent and that lethal force is necessary. (People v. Uriarte (90) 223 CA3d 192, 197 [272 CR 693].)

F 5.17 n6 Imperfect Self-Defense: Inapplicable To Enhancements.

In People v. Goins (91) 228 CA3d 511, 516-18 [279 CR 42], the defendant was charged with assault with force likely to produce great bodily injury and with a great bodily injury enhancement. The jury rejected the defense of reasonable self-defense. On appeal, the defendant argued that an instruction on unreasonable self-defense should have been given with respect to the enhancement since it contained a specific intent element not present in the underlying assault charge. The court of appeal rejected this argument holding that the requisite specific intent would have been present regardless of unreasonable self-defense.

However, the court of appeal’s analysis is incomplete because it fails to consider whether the specific intent required by the great bodily injury enhancement includes felonious (i.e., wrongful) intent. (See People v. Vogel (56) 46 C2d 798, 801, fn 2 [299 P2d 850].) For example, a person who takes property under a good faith claim of right has the specific intent required for theft (i.e., to permanently deprive the other of the property) but, because that specific intent is not criminal, there is no liability for the crime of theft. (See FORECITE F 9.40a; see also FORECITE F 4.40 n5.)

F 5.17 n7 Is Imperfect Self-Defense Applicable To Reduce Mayhem To Assault Or Battery?

In People v. McKelvey (87) 194 CA3d 694, 701-07 [239 CR 782], the lead opinion of Kline, P.J. declared that an actual but unreasonable belief in the need for self-defense negated the malice required for a conviction of mayhem (PC 203), mitigating the crime to assault or battery. The opinion concluded that a Flannel-type instruction (People v. Flannel (79) 25 C3d 668 [160 CR 84]) should be given sua sponte in mayhem cases where there was more than minimal evidence of self-defense. (But see People v. Hayes (2004) 120 CA4th 796, 805 [Flannel is wholly inapplicable to mayhem].)

However, People v. Sekona (94) 27 CA4th 443, 452-53 [32 CR2d 606], disagreed with the McKelvey lead opinion and held that the malice required for mayhem under PC 203 is different from the malice required for murder under PC 188. Accordingly, Sekona held that Flannel should not operate to negate mayhem-malice based on imperfect self-defense. Despite Sekona‘s extensive discussion of the technical aspects of the issue, it fails to adequately explain why imperfect self-defense should apply when the victim is killed but not when some lesser injury is inflicted upon the victim. [See Brief Bank # B-628 for a copy of the Petition for Review in Sekona.]

F 5.17 n8 Applicability Of Imperfect Self-Defense To Aggravated Mayhem.

Because ordinary mayhem (PC 203) requires malice, it has been argued that imperfect self-defense should apply to reduce mayhem to assault or battery. (See FORECITE F 5.17 n7.) However, even if imperfect self-defense is not applied to ordinary mayhem, it should be applied to aggravated mayhem for public policy reasons.

The penalty for aggravated mayhem (PC 205) is life with the possibility of parole. On the other hand, the penalty for voluntary manslaughter (i.e., an imperfect self-defense killing) is 3, 6 or 11 years. Therefore, if imperfect self-defense is not applied to aggravated mayhem, a person will actually have an incentive to kill his or her victim in order to obtain a lesser sentence. Such an absurd result is contrary to public policy, substantive due process under the federal constitution (14th Amendment) and could not have been intended by the legislature. Although the aggravated mayhem statute does not specifically require malice, it does require that the defendant act “unlawfully” and “under circumstances manifesting extreme indifference ….” Therefore, under the reasoning that imperfect self-defense negates unlawful intent (see In re Christian S. (94) 7 C4th 768, 778-79 [30 CR2d 33]), imperfect self-defense should be permitted to negate the mens rea for aggravated mayhem.

F 5.17 n9 Imperfect Self-Defense As Lesser Included Offense Rather Than Affirmative Defense.

People v. Barton (95) 12 C4th 186 [47 CR2d 569] disapproved People v. Wickersham (82) 32 C3d 307, 329 [185 CR 436], which held that “unreasonable self-defense” is a “defense.” “Unreasonable self-defense” is not a true defense because it is a shorthand description of one form of voluntary manslaughter. In other words, it is a lesser included offense of the crime of murder. “Accordingly, when a defendant is charged with murder, the trial court’s duty to instruct sua sponte, or on its own initiative, on unreasonable self-defense is the same as its duty to instruct on any other lesser included offense: This duty arises whenever the evidence is such that a jury could reasonably conclude that the defendant killed the victim in the unreasonable but good faith belief in having to act in self-defense.” (Barton, 12 C4th at 201.)

F 5.17 n10 Duty To Instruct On Self-defense Or Imperfect Self-defense When Defendant Has Not Testified.

(See FORECITE F 5.12 n7.)

F 5.17 n11 THIS ENTRY HAS BEEN DELETED.

F 5.17 n12 Appellate Issue Alert: 1995 Pocket Part Definition Of “Imminent Peril” Prejudicially Defective.

In People v. Sandoval UNPUBLISHED (3/2/98, F024536) the court reversed a second degree murder conviction on the basis that CJ 5.17 (1994 Revision), given at Sandoval’s trial, was prejudicially defective. That version, contained in the January 1995 Pocket Part defined “imminent peril” as “one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer as a reasonable person.” (Emphasis added.) This informed the jury that the test for the required imminent peril was to be measured by the supposed perception under the circumstances of the “reasonable person,” an objective rather than the correct subjective standard, and deprived the defendant of the benefit of a conviction on a lesser offense than second degree murder.

Therefore, murder convictions which were obtained using CJ 5.17 (1994 Revision; January 1995 Pocket Part) may be subject to challenge. [A copy of the Sandoval opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-240.]

F 5.17 n13 Imperfect Self-Defense Inapplicable To Felony Murder.

(See People v. Loustaunau (86) 181 CA3d 163, 170 [226 CR 216].)

F 5.17 n14 Imperfect Self-Defense Without Intent To Kill: Requires Sua Sponte Instruction On Voluntary Manslaughter.

The People v. Blakely ((2000) 23 C4th 82 [96 CR2d 451]) concept of conscious disregard for life as an avenue under unreasonable self-defense to find voluntary manslaughter sets forth an entirely new theory to reach voluntary manslaughter. Therefore, the trial court has a sua sponte duty to instruct on this theory if it is not covered by the other instructions. (See generally People v. Sedeno (74) 10 C3d 703 [112 CR 1].) [See Brief Bank # B-922 and Opinion Bank # O-314 for briefing and an unpublished opinion addressing this issue.]

See also FORECITE F 5.17d.

F 5.17 n15 Imperfect Self-Defense Instruction Should Be Included With Manslaughter Instructions.

The sequence of the instructions can in some circumstances result in confusion. One such circumstance is when the courts instruct on imperfect self-defense (e.g., CJ 5.17). Imperfect self-defense instructions should logically be included with the instructions on voluntary manslaughter. [See Brief Bank # B-922 and Opinion Bank # O-314 for briefing and an unpublished opinion addressing this issue.]

F 5.17 n16 Imperfect Self-Defense: Applicability to Defense of Others.

“The doctrine of unreasonable or imperfect defense of others, in contrast to the doctrine of unreasonable or imperfect self-defense, is not well established in California law.” (People v. Michaels (2002) 28 C4th 486, 529 [122 CR2d 285].) However, the concept of imperfect defense of others “follows logically from the interplay between statutory and decisional law.” (Michaels, 28 C4th at 530; see also People v. Randle (2005) 35 C4th 987.) Accordingly, such an instruction should be given when requested.

F 5.17 n17 Whether Absence Of Imperfect Self-Defense Is Element Of Malice.

The majority in People v. Martinez (2003) 31 C4th 673, 685 held that “the absence of imperfect self-defense or voluntary intoxication is not an element of the offense of murder which must be proved by the People. Instead, these doctrines are `mitigating circumstances,‘ which may reduce murder to manslaughter by negating malice. [Citation to People v. Rios (2000) 23 C4th 450, 461];“ but see dissenting opinion of Kennard, J. However, regardless of what label is used, the prosecution must prove the absence of imperfect self-defense beyond a reasonable doubt. (See People v. Rios, supra, 23 C4th at 462; Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; see also Mullaney v. Wilbur (1975) 421 US 684, 704 [44 LEd2d 508, 95 SCt 1881] [When a factual circumstance negates an element of the crime, as imperfect self-defense negates malice, the federal Constitution’s due process guarantee requires the prosecution to bear the burden of proving the absence of that circumstance beyond a reasonable doubt]; Walker v. Endell (9th Cir. 1988) 850 F2d 470, 472.)

F 5.17a

Imperfect Self-Defense: Definition Of Imminent Danger

SUBSEQUENT HISTORY: Subsequent to FORECITE’s original publication of this instruction, CALJIC added a definition of “imminent peril or danger” in the 5th Edition January 1995 pocket part.

*Add to CJ 5.17:

Imminent danger, as used in these instructions, means that the danger must have existed or appeared to the defendant to have existed at the very time the fatal wound was inflicted. In other words, the danger must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent danger is one that, from appearances, which existed or appeared to the defendant to have existed, must be instantly dealt with. In determining whether a victim presents an imminent danger, the defendant is entitled to consider all of the circumstances, [including the victim’s prior assaults on and threats to the defendant].

Points and Authorities

The above instruction is taken from People v. Aris (89) 215 CA3d 1178, 1187 [264 CR 167] (see also In re Christian S. (94) 7 C4th 768, 783 [30 CR2d 33]) with the following modifications:

1. The term “imminent peril” has been changed to “imminent danger” to correspond with the term used in CJ 5.17.

2. The third sentence has been modified to assure that the subjective standard is conveyed. (See People v. Gough REV GTD/DISD/DEPUB (93) 19 CA4th 630, 638-39 [23 CR2d 694] [rejecting argument on appeal but not foreclosing modification upon request at trial].)

3. Optional language regarding prior assaults or threats has been added. (See FORECITE F 5.12a (et seq).)

Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII.]

APPELLATE ISSUE ALERT: See FORECITE F 5.17 n12.

F 5.17b

Imperfect Self-Defense:

Applicability To Mental Defect Or Intoxication

*To be added at end of 2nd sentence of CJ 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 [intoxication], [delusion] [or] [simple mistaken perception].

Points and Authorities

Because imperfect self-defense focuses upon the mental state of the defendant, it matters not whether his honest-but-mistaken belief in the necessity to defend was the product of intoxication, delusion or simply mistaken perception. (See People v. Uriarte (90) 223 CA3d 192, 197; see also In re Christian S. (94) 7 C4th 768, 781; People v. Cameron (94) 30 CA4th 591, 601; but see People v. Wright (2005) 35 C4th 964 [declining to decide whether imperfect self-defense should be “extended” to delusionary beliefs].)

[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-742.]

F 5.17c

Imperfect Self-Defense: Definition Of Imminent Danger

*Add to CJ 5.17:

(See FORECITE F 5.17a.)

F 5.17d

Imperfect Self-Defense Applies To Implied Malice

*Modify first sentence of CJ 5.17 to provide as follows [added language is capitalized; deleted language is between <<>>:

A person, who kills another person in the honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully, but <<does not harbor>> HARBORS NEITHER EXPRESS NOR IMPLIED malice aforethought and is not guilty of murder.

Points and Authorities

Imperfect self-defense may negate both express and implied malice. (People v. Blakeley (2000) 23 C4th 82, 88 [96 CR2d 451]; In re Christian S. (94) 7 C4th 768, 780, fn 4 [30 CR2d 33].)

(See also FORECITE 5.17 n14.)

Retroactivity Note: See FORECITE F 8.40 n15.

F 5.17e

Imperfect Self-Defense: Definition Of “Wrongful Conduct”

*Add the following to the end of paragraph 3 of CJ 5.17:

As used in this paragraph, “unlawful or wrongful conduct” is defined as the willful initiation of a physical assault or the commission of a felony which presents the threat of physical harm to a third person.

Points and Authorities

The California Supreme Court has said that a defendant may not rely on a theory of imperfect self-defense when he engaged in “wrongful conduct” prior to his use of force. (In re Christian S. (94) 7 C4th 768, 773 fn 1. [30 CR2d 33].) In this context, the court defined “wrongful conduct” as “the initiation of a physical assault or the commission of a felony …” (Ibid.)

The last paragraph of CJ 5.17 is overly-broad, ambiguous and misleading. The paragraph is apparently designed to capture the principle that the right to self-defense, and therefore the partial justification of imperfect self-defense, is not available to an aggressor. (See CJ 5.54 and CJ 5.55.) However, without defining the term “unlawful or wrongful conduct” the instruction fails to convey these principles. Not only does the instruction fail to state under what conditions the adversary’s use of force is “legally justified,” but the instruction is phrased so as to suggest that any unlawful or wrongful act by the defendant in fact legally justifies the use of force by the victim. Thus, the instruction gives the erroneous impression that imperfect self-defense will not be applicable if the defendant has committed some sort of unlawful act or some sort of wrongful act. What type of unlawful or wrongful act is left to the unguided speculation of the jurors, who are not versed in the intricacies of the law of self-defense or of imperfect self-defense except through the inadequately-formulated instruction. (See People v. Prettyman (96) 14 C4th 248, 267 [58 CR2d 827]; see also State v. Arthur (WA 1985) 708 P2d 1230, 1232 [42 Wash.App. 120] [“An aggressor instruction must be directed to intentional acts which the jury could reasonably assume would provoke a belligerent response by the victim” — use of the term “unlawful act” in the self-defense instruction was unconstitutionally vague].)

As is readily apparent, the term “wrongful conduct” has a specialized meaning which would not be readily understood by jurors. Thus, CJ 5.17 is insufficient since the term is not defined. As a result, CJ 5.17 should be modified to provide a definition of “wrongful conduct.” (People v. Kimbrel (81) 120 CA3d 869, 872 [174 CR 816] [the trial court has a duty to define the meaning of technical terms found in its instruction]; see also People v. Shoals (92) 8 CA4th 475, 489-91 [10 CR2d 296].)

It should be noted that the Supreme Court has not set forth the specific limitation that the defendant’s felonious conduct must pose a threat of physical harm to a third party. However, this limitation is implicit in California law since even a felon retains the right of self-defense in most circumstances. (People v. Hecker (1895) 109 C 451, 463 [42 P 307] [peaceful trespasser retains right of self-defense]; Evans v. City of Bakersfield (94) 22 CA4th 321, 331 [27 CR2d 406] [arrestee may act in self-defense when excessive force is used by police].)

For briefing on this issue, see Brief Bank # B-977.

F 5.17f

Belief In Need To Defend

*Modify first sentence of CJ 5.17 as follows [Added language is capitalized]:

A person, who kills another person in the actual but unreasonable belief in the necessity to defend [HIMSELF] [HERSELF] [AND] [OR] [ANOTHER] against imminent peril to life or great bodily injury, kills unlawfully, but does not harbor malice aforethought and is not guilty of murder.

Points and Authorities

See People v. Uriarte (90) 223 CA3d 192, 197 [272 CR 693]. (See FORECITE F 5.12k.)

F 5.17g

Imperfect Self-Defense: Applicability To Aider And Abettor

(See FORECITE F 3.01p.)