Return to CALJIC Part 5-8 – Contents
F 5.54a
Self-Defense By An Aggressor:
Non-Deadly Aggressor Need Not Withdraw From Deadly Counter-Attack
*Add to CJ 5.54:
An original aggressor who initiated the encounter with non-deadly force, such as a simple assault, need not withdraw if the victim of the simple assault responds in a sudden and deadly counter-assault.
Points and Authorities
Generally, if one makes a felonious assault upon another, or has created appearances justifying the other to launch a deadly counter-attack in self-defense, the original assailant cannot slay his adversary in self-defense unless he first, in good faith, declines further combat and fairly notifies the adversary that he has abandoned the affray. (People v. Hecker (1895) 109 C 451, 463 [42 P 307]; but see People v. Watie (2002) 100 CA4th 866 [124 CR2d 258] [non-deadly trespasser must retreat from deadly counter-attack by home owner based on presumption of PC 198.5]; People v. Hardin (2000) 85 CA4th 625, 633-34 [102 CR2d 262] [victim was entitled to use force to evict defendant from her home].) This rule is embodied in CJ 5.54.
However, when the victim of a simple assault responds in a sudden and deadly counter-assault, the original aggressor need not attempt to withdraw and may use reasonable necessary force in self-defense. (People v. Quach (2004) 116 CA4th 294 [expressly holding that CJ 5.56 is wrong]; People v. Baker (99) 72 CA4th 531, 540 [85 CR2d 362]; People v. Gleghorn (87) 193 CA3d 196, 201 [238 CR 82]; People v. Sawyer (67) 256 CA2d 66, 75 [63 CR 749].) CJ 5.54 does not include this exception to the general rule and therefore, when appropriate, CJ 5.54 should be supplemented.
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 generally, FORECITE PG VII(C).]
NOTES
[See Brief Bank # B-519 for additional briefing on this issue.]
F 5.54b
Self-Defense By An Aggressor:
No Requirement That Aggressor Verbally Notify Adversary Of Withdrawal
*Modify CJ 5.54, ¶ 4 as follows [added language is capitalized; deleted language is between << >>:]
3. [He] [She] has clearly <<informed>> [MADE KNOWN] [MADE KNOWN BY ACTS OR WORDS] [his] [her] opponent that [he] [she] has stopped fighting.
Points and Authorities
As of February 2004, CJ 5.54 was revised per People v. Hernandez, (2003) 111 CA4th 582[aggressor must withdraw and communicate, but may communicate by words or conduct, such as running away]. As previously worded, jurors may believe that the term “inform” requires verbal notification. There is no requirement that an original aggressor verbally notify his or her adversary that he or she is withdrawing from the altercation. Instead, such conduct can be accomplished by conduct as well as words. (See e.g., People v. Button (1895) 106 C 628, 632 [39 P 1073]; People v. Hecker (1895) 109 C 451, 462 [42 P 307]; see also People v. Hernandez (2003) 111 CA4th 582 [jury instruction stated that an original aggressor or mutual combatant must “clearly inform” adversary of withdrawal in order to claim self-defense was erroneous].)
ALERT: The latest CJ 5.54 revision is deficient in several respects. See FORECITE F 5.54c–f.
F 5.54c
Communication Of Withdrawal:
Reasonable Person Standard
*Add to CJ 5.54:
If the subsequent acts or statements of the defendant would have indicated to a reasonable person that [he] [she] in good faith had withdrawn from the combat, they must be held to so indicate to the party attacked.
Points and Authorities
See People v. Button (1895) 106 C 628, 633; see also People v. Hernandez (2003) 111 CA4th 582.
F 5.54d
Communication Of Withdrawal:
Single Act, Statement Or Course Of Conduct May
Satisfy All Three Requirements For Withdrawal
*Add to CJ 5.54:
However, these three things do not need to be done by three separate acts and/or statements. A single statement, act or a contemporaneous combination of words and conduct may at once satisfy all three elements.
Points and Authorities
The structure of CJ 5.54, which numerically lists three requirements for withdrawal, may mislead the jurors into concluding that each is a discrete element which must be shown by a separate statement or act. In truth, a single act and/or statement e.g., dropping weapon, turning and running, etc., is clearly sufficient to constitute withdrawal. (See e.g., People v. Hernandez (2003) 111 CA4th 582, 589 [“actions that . . . constitute withdrawal” such as running away may also communicate withdrawal] [Court’s emphasis.].)
F 5.54e
Communication Of Withdrawal:
Words And/Or Conduct Sufficient
*Modify CJ 5.54, Elements 2 and 3, as follows [added language is capitalized]:
2. [He] [She] has by words AND/or conduct caused [his] [her] opponent to be aware, as a reasonable person, that [he] [she] wants to stop fighting; and
3. [He] [She] has by words AND/or conduct caused [his] [her] opponent to be aware, as a reasonable person, that [he] [she] has stopped fighting.
Points and Authorities
The desire to stop fighting need not be communicated by words or conduct. Communication is measured from the perspective of the other party as a reasonable person which obviously requires consideration of both the words and conduct of the defendant. (See People v. Button (1895) 106 C 628, 633; see also People v. Hernandez (2003) 111 CA4th 582.)
F 5.54f
Communication Of Withdrawal:
No Requirement Of Intent To Communicate
*Add to CJ 5.54:
However, there is no requirement that the defendant actually intended to communicate that [he] [she] stopped fighting so long as the defendant’s words and/or conduct were such as to indicate to a reasonable person that the defendant had stopped fighting.
Points and Authorities
See People v. Hernandez (2003) 111 CA4th 582, 589 [instruction on withdrawal is improperly misleading if it requires “an intent to communicate”]; see also People v. Button (1895) 106 C 628, 633 [communication measured from perspective of the other party as a reasonable person].
See also FORECITE F 5.54e.
