F 5.55

F 5.55 n1 The Contrived Self-Defense Instruction Should Not Be Given Absent Evidence That The Defendant’s Conduct Warranted The Decedent In Taking Defensive Action.

The legal principle found in CJ 5.55 has deep roots in the common law and contains a correct statement of the law. (People v. Hinshaw (24) 194 C 1, 41; People v. Conkling (1896) 111 C 616, 625-627.) However, contrary to the language of CJ 5.55, the principle does not apply to any “quarrel.” Rather, CJ 5.55 should be used solely in those cases where the conduct of the defendant is such that it would warrant the other person in taking defensive action against the defendant.

People v. Conkling, supra, 111 C 616 establishes this conclusion. There, the decedent came into possession of certain real property. The decedent placed a fence across the road on the property even though residents of the neighborhood had commonly traversed the road. One day, the decedent prevented the defendant from using the road and a heated argument ensued. Subsequently, the defendant tore down the fence and traveled the road while carrying a rifle. Upon being confronted by the decedent, the defendant shot and killed him. At the defendant’s murder trial, the trial court instructed the jury that the right of self defense does not apply to a “quarrel” provoked by the defendant. (Id., at pp. 624-625.)

On the facts before it, the Supreme Court held that the instruction was erroneous. This was so since the instruction unfairly restricted the defendant’s right to act in self defense.

“Aside from any question as to the immediate cause which at the time of the killing precipitated the affray, this language of the instruction is broad enough to justify the jury in believing that it was such a fault or misconduct upon the part of the defendant, in attempting to travel this road under existing circumstances, as to deprive him of the right of self defense if attacked by deceased at the point where the road was obstructed. Such, certainly, is not the law, and neither court nor counsel for the People would so contend.” (Conkling, supra, 111 C at pp. 625-626; accord, People v. Garnier (1950) 95 CA2d 489, 496-497; People v. Keys (44) 62 CA2d 903, 914-915.)

As Conkling establishes, CJ 5.55 cannot be given merely because the defendant has engaged in a “quarrel.” Rather, the proper use of CJ 5.55 is limited to those cases where the defendant’s conduct is such that the other person is entitled to take defensive action.

For additional briefing on this issue, see Brief Bank # B-978.

F 5.55 n2 Attack By Animal Justifying Self Defense.

See People v. Lee (2005) 131 CA4th 1413 [a reasonable belief an animal is attacking justifies shooting the animal].