SERIES 500 HOMICIDE
F 505.5 REASONABLE PERSON STANDARD
F 505.6 WHAT CONDUCT JUSTIFIES SELF-DEFENSE
F 505.7 SELF-DEFENSE: MISCELLANEOUS
TABLE OF CONTENTS
F 505.5 REASONABLE PERSON STANDARD
F 505.5 Inst 1 Improper Requirement That Actual Force Used Not Be Unreasonable
F 505.5 Inst 2 Reasonable Person Standard: Consideration Of Specific Circumstances
F 505.5 Inst 3 Reasonable Person Standard: The “Same” Rather Then A “Similar” Situation
F 505.6 WHAT CONDUCT JUSTIFIES SELF-DEFENSE
F 505.6 Inst 1 Self-Defense: Driving By Person Who May Initiate An Assault Does Not Negate Driver’s Right To Self-Defense
F 505.6 Inst 2 Assault By Hands Or Fists May Justify Use Of Deadly Force In Self-Defense
F 505.6 Inst 3 Definition Of Great Bodily Injury (PC 197 & PC 198)
F 505.6 Inst 4 Antecedent Threats: Existence Of Threat To Be Determined In Light Of All The Surrounding Circumstances
F 505.6 Inst 5 Self-Defense Available When Defendant Only Threatens to Use Force
F 505.6 Inst 6 “Serious Bodily Harm” As Plain Language Paraphrase Of “Great Bodily Injury”
F 505.7 SELF-DEFENSE: MISCELLANEOUS
F 505.7 Inst 1 Deletion Of Argumentative And Duplicative Language
F 505.7 Inst 2 Transferred Self-Defense
Return to Series 500 Table of Contents.
F 505.5 Reasonable Person Standard
F 505.5 Inst 1 Improper Requirement That Actual Force Used Not Be Unreasonable
*Delete CC 505, Element 3, which provides:
3. The defendant used no more force than was reasonably necessary to defend against that danger.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Force Used May Be More Than What Was Actually Necessary—The third enumerated element of CALCRIM [CC 505 & 3470] is a mis-statement of the law of self-defense. Self-defense turns entirely on the nature of the defendant’s belief in the need to use the force that was used. (See People v. Humphrey (1996) 13 C4th 1073; see also People v. Rhodes (2005) 129 CA4th 1339, 1346 [CJ 5.50 correctly provides that a person may defend “by the use of all force and means which would appear to be necessary to a reasonable person …”].) The defendant must both subjectively hold such a belief, and the belief must be objectively reasonable. (See e.g., Humphrey, 13 C4th at 1082; CJ 5.10.) If those subjective and objective requirements are met, or more correctly, if the prosecution fails to prove that defendant did not have the specified subjective, objectively reasonable belief, then the amount of force actually used is irrelevant: “Justification does not depend upon the existence of actual danger but rather depends upon appearances; it is sufficient that the circumstances be such that a reasonable person would be placed in fear for his safety and that the defendant act out of that fear.” (PC198; People v. Collins (1961) 189 CA 2d 575.)
“[A person] may act upon such appearances with safety; and if without fault or carelessness he is misled concerning them, and defends himself correctly according to what he supposes the facts to be, his act is justifiable, though the facts were in truth otherwise, and though he was mistaken in his judgment as to such actual necessity at such time and really had no occasion for the use of extreme measures.” (People v. Collins, supra, 189 CA2d at 588.)
It is true that People v. Clark (1982)130 CA3d 371, 377 states that: “In defending himself, however, a person may use only that force which is necessary in view of the nature of the attack; any use of excessive force is not justified and a homicide which results therefrom is unlawful. (People v. Young (1963) 214 CA2d 641, 646.) However, this is incorrect to the extent that it focuses only on the force used and not on the defendant’s belief as to the necessary force. People v. Young, upon which Clark relies makes this clear: “…justifiable homicide connotes only the use of force which is necessary, or which reasonably appears to be necessary…” Thus, Young correctly observed that the term necessary force must be defined in context of the defendants reasonable belief.
CALJIC got this concept right in both CJ 5.10 and CJ 5.30 which include only two elements focusing on the defendant’s subjective belief and the objective reasonableness of that belief However, the CALCRIM instruction is potentially misleading due to its third non-belief requirement that the defendant actually use no more force than was reasonably necessary (see e.g, CC 505 & 3470). In other words, under the CALCRIM construct, if someone points a stick at the defendant in a dark alley and the defendant responds with deadly force—reasonably thinking the stick was a gun—then self defense is not available under CALCRIM because the actual force used was “more than was reasonably necessary.” [Note, the third element does use the term “reasonably” but there is nothing tying that reasonableness to the defendant’s beliefs as opposed to what actually happened]. The fourth paragraph of CC 505, which is bracketed does touch on the issue, but it speaks in terms of “information” relied on by the defendant rather than the defendant’s observations and beliefs. Moreover, at best, paragraph 4 merely provides contradictory or conflicting guidance which is insufficient to assure the jurors will not be misled by Element 3, especially since the conflicting instruction is not part of Element 3. (See Francis v. Franklin (1985) 471 US 307 [85 LEd2d 344; 105 SCt 1965].)
(See also FORECITE F 200.5 Inst 2.)
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 505.5 Inst 2 Reasonable Person Standard: Consideration Of Specific Circumstances
*Add to CC 505:
In deciding whether a reasonable person placed in a similar position as the defendant would have been justified in using self-defense, you should consider all the relevant circumstances applicable to the defendant. Such circumstances include factors but are not limited to: the defendant’s physical disabilities, the defendant’s intoxication, and prior threats and acts of physical violence perpetrated by the alleged victim against third parties about which the defendant had knowledge.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Relevance Of Specific Circumstances—It is well established that the objective reasonable person standard requires consideration of all the circumstances in which the defendant was placed. (See e.g., People v. Humphrey (1996) 13 C4th 1073, 1083; People v. Minifie (1996) 13 C4th 1055, 1065-66; see also People v. Mendoza (1997) 59 CA4th 1333, 1340 [whether the words of a threat (for purposes of PC 422) conveyed an immediacy of purpose and immediate prospect of execution of the threat can be based on all the surrounding circumstances, including the parties’ history, and not just on the words alone]; People v. Matthews (1994) 25 CA4th 89, 99.) Accordingly, the jury should be instructed to consider all the relevant circumstances in which the defendant was placed. (People v. Spencer (1996) 51 CA4th 1208, 1220; see also People v. Randle (2005) 35 C4th 987, 997 [attorney general acknowledges that in determining objective reasonableness the “jury must consider all the facts and circumstances it might expect to operate on the defendant’s mind” ].)
[See also F 820.5 Inst 3.]
Consideration Of Specific Factors— See FORECITE F 105.2 Inst 2.
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 5.12h.
F 505.5 Inst 3 Reasonable Person Standard: The “Same” Rather Then A “Similar” Situation
*Modify CC 505, paragraph 3, as follows [added language is underlined; deleted language is stricken]:
When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar the same situation with similar the same knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Reasonable Person Standard Must Be Based On “The Same Situation”—CC 511, paragraph 5, sentence 3: [” . . . same situation . . .” ]; see also F 820.5 Inst 3.
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 505.5 Inst 4 Self-Defense: Retreat Not Required
*Modify CC 505, paragraph 9, sentence 2, as follows [added language is underlined; deleted language is stricken]:
He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of (death/great bodily injury/ __________ <insert forcible and atrocious crime>) has passed by use of all force and means which would appear to be necessary to a reasonable person in the same situation.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Need For Modification—CC 505.5, paragraph 9, addresses the no retreat rule without (1) stating the right to use all force and means which would appear to be necessary and (2) stating reasonableness in terms of a reasonable person in the same situation. Hence, the above modification is appropriate. (People v. Rhodes (2005) 129 CA4th 1339, 1346 [approving instruction that person may defend “by use of all force and means necessary to a reasonable person …”]; see also FORECITE F 505.5 Inst 2 [Reasonable Person Standard: Consideration Of Specific Circumstances].)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 505.6 Inst 5 Self-Defense Available When Defendant Only Threatens To Use Force
*Modify CC 505, Elements 2 and 3 as follows [added language is underlined; deleted language is stricken]:
2. The defendant reasonably believed that the immediate threat to use of deadly force] was necessary to defend against that danger;
AND
3. The defendant threatened to use d no more force than was reasonably necessary to defend against that danger.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank #CCM-001.]
The CALCRIM Defect – The CALCRIM instruction is limited to situations where the defendant intentionally uses force. However, self-defense also applies when the defendant merely threatens to use force. As observed by one commentator:
“If he is justified in using deadly force, he is of course justified in threatening to use it. If he is not justified in using deadly force, he may nevertheless be justified in threatening to use it without intending to use it.” (LaFave & Scott, Substantive Criminal Law (West, 1986) §5.7 p. 652, fn. 13.)
State v. Ambuehl (WI 1988) 425 NW2d 649, illustrates why the omission of “threat of force” may be erroneous. In that case the defendant was charged with attempted murder. The charges arose from a bar room fight during which a gun the defendant was holding went off, injuring one of the combatants. The defendant claimed she intentionally pointed the gun in defense of her friend but that the gun went off accidentally. In other words, she intentionally threatened force but did not intentionally use force. Under these circumstances the failure of the instruction to include a “threat of force” alternative “was likely to divert the jury from [the defendant’s] version of the shooting to a version which she denied had occurred.” (Ambuehl, 425 NW2d at 661.) As a result, the defense theory was never resolved by the jury and the case was reversed.
Accordingly, in situations where the use of force may have been threatened but not intentionally used, self-defense should still apply. (See e.g., People v. Blakeley (2000) 23 C 4th 82, 92 [“. . .one who, acting with conscious disregard for life, unintentionally kills in unreasonable self-defense is guilty of voluntary manslaughter rather than the less serious crime of involuntary manslaughter. . .”]; cf., People v. Villanueva (2008) 169 CA4th 41, 54-55 [right to instruction on self-defense despite defendant’s assertion of accident].)
Use Of The Term “Defendant” – The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 505.6 Inst 6 “Serious Bodily Harm” As Plain Language Paraphrase Of “Great Bodily Injury”
*Modify CC 505 as follows:
[Replace “great bodily injury” with “serious bodily harm.”]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency – In its April 2011 report [http://www.courts.ca.gov/documents/20110429itemb.pdf] vis a vis CC 507 and 508 the CALCRIM Committee responded as follows to a commentator who noted that the statute uses the terminology “great bodily” harm:
The instructions and case law refer interchangeably to “serious physical harm,” “serious bodily harm,” and “great bodily harm.” The committee concluded that it was important to be consistent in its terminology and that “serious bodily harm” was the best term and an appropriate plain language paraphrase of “great bodily harm.
See [http://www.courts.ca.gov/documents/20110429itemb.pdf].
Hence, as with CC 507 and CC 508 the plain language terminology “serious bodily harm” should be used.
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 505.6 What Conduct Justifies Self-Defense
F 505.6 Inst 1 Self-Defense: Driving By Person Who May Initiate An Assault Does Not Negate Driver’s Right To Self-Defense
*Add to CC 505:
The defendant has no obligation to curtail [his] [her] activities to avoid an encounter with a person who may attack [him] [her]. Therefore, a person does not forfeit his or her right to self-defense simply by driving by another person on a public street even if the person driving by has reason to believe that the other party may initiate an assault by shooting at the passing automobile.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
No Obligation To Avoid Encounter—It is well settled in California that self-defense is not available to one who has sought a quarrel with the intent to force a deadly issue and thus to create a real or apparent necessity for his own assault. (See People v. Garnier (1950) 95 CA2d 489, 496; see also CJ 5.54; CJ 5.55.) However, this rule does not apply to one who, while otherwise acting lawfully, simply fails to curtail his or her activities to avoid an encounter with another person. “For one may know that if he travels along a certain highway he will be attacked by another with a deadly weapon, and be compelled in self-defense to kill his assailant, and yet he has the right to travel that highway, and is not compelled to turn out both his way to avoid the unexpected attack.” (People v. Gonzales (1887) 71 C 569, 578.) “A person threatened with an attack that justifies the exercise of the right of self-defense need not retreat … This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene.” (CALJIC 5.50; see also CALCRIM 505.)
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 5.12j.
F 505.6 Inst 2 Assault By Hands Or Fists May Justify Use Of Deadly Force In Self-Defense
*Add to CC 505:
For the purposes of this instruction, great bodily injury means a significant or substantial physical injury. Such injury may be inflicted by the hands or fists.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Assault By Hands Or Fists May Be Great Bodily Injury—When appropriate, the jury should be instructed as to the meaning of the term “great bodily injury” as pertaining to self-defense. (See also FORECITE F 505.6 Inst 3.) In particular, the jury may not understand that deadly force may be available to defend against an assault by hands or fists.
It is a long standing principle in California law that use of hands and fists alone may be sufficient to support a conviction of assault by means of force likely to produce great bodily injury. (See CJ 9.08; see also People v. Armstrong (1992) 8 CA4th 1060, 1066; In re Nirran W. (1989) 207 CA3d 1157, 1161; People v. Wingo (1975) 14 C3d 169, 176; People v. Chavez (1968) 268 CA2d 381, 384; People v. Zankich (1961) 189 CA2d 54, 70 [“It is thoroughly settled in this state that an assault by means of ‘force likely to produce great bodily injury’ [citation] may be made by the use of hands or fists.” ].) A conviction for assault by force likely to produce great bodily injury was upheld in People v Hopkins (1978) 78 CA3d 316 where the extent of the injuries after “scuffle” were a cut on the forehead, a bloody and swollen nose, and puffed eyes. (Id. at p. 318.)
The fear of great bodily injury which triggers the duty to instruct on self-defense cannot be a greater degree of bodily injury defined elsewhere in the Penal Code. Statutes are said to be “in pari materia” when they have similar phrases appearing in each and they must be given like meanings. (Hunstock v. Estate Development Corp. (1943) 22 C2d 205, 210 [“elementary rule” of statutory construction is that statutes in pari materia— that is, statutes relating to the same subject matter—should be construed together]. Accord, In re Phyle (1947) 30 C2d 838, 845; In re Marriage of Pinto (1972) 28 CA3d 86, 89; 59 Ops. Cal. Atty. Gen. 23, 25 (1976).)
Another, equally fundamental rule of statutory construction applicable here is that:
“[When] language which is reasonably susceptible of two constructions is used in a penal law, ordinarily that construction which is more favorable to the offender will be adopted … ‘the defendant is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute.’ [Citations.]” (People v. Ralph (1944) 24 C2d 575, 581.)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 5.12l.
F 505.6 Inst 3 Definition Of Great Bodily Injury (PC 197 & PC 198)
*Add to CC 505:
For purposes of this instruction, great bodily injury means significant or substantial injury.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Necessity Of Defining Great Bodily Injury—CALCRIM 505 fails to define the term “great bodily injury” for purposes of evaluating self-defense. Because the term has a technical meaning peculiar to the law, it should be defined even without a request. (See, e.g., People v. Reynolds (1988) 205 CA3d 776, 779.) Accordingly, the jury should be instructed that great bodily injury means “significant or substantial physical injury.” (See 1 Witkin and Epstein, Cal. Crim. Law 2d (1986) §243, p. 279; see also People v. Armstrong (1992) 8 CA4th 1060, 1066; People v. Covino (1980) 100 CA3d 660, 667; CJ 9.02.) [See Brief Bank # B-504 for briefing on the court’s sua sponte duty to define great bodily injury in self-defense cases.]
See also FORECITE F 505.6 Inst 4.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
[Research Note: See FORECITE BIBLIO 5.10, et al.]
CALJIC NOTE: See FORECITE F 5.12 n2.
F 505.6 Inst 4 Antecedent Threats: Existence Of Threat To Be Determined In Light Of All The Surrounding Circumstances
See FORECITE F 505.3 Inst 3.
F 505.7 Self-Defense: Miscellaneous
F 505.7 Inst 1 Deletion Of Argumentative And Duplicative Language
*Delete CC 505, paragraph 2 as follows:
Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of great bodily injury to (himself/herself/ [or] someone else). Defendant’s belief must have been reasonable and (he/she) must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the [attempted] killing was not justified.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
All of the matters in CALCRIM 505, paragraph 2, are duplicative of the elements already provided in paragraph 1 and should be deleted for this reason. (See FORECITE F 416.3 Inst 4.) Furthermore, this portion of the instruction is improper argument which should be relegated to the prosecution’s argument to the jury. (See FORECITE F 416.3 Inst 4..)
Whether Force Used Was Reasonable: See FORECITE F 505.2 Inst 4.
F 505.7 Inst 2 Transferred Self-Defense
*Add to CC 505:
Alternative a:
If a person acts in the exercise of [his] [her] right of self-defense and by such act inadvertently [injures] [kills] an innocent bystander, the person has committed no crime against the bystander.
Alternative b:
Self-defense is available to insulate a defendant from criminal responsibility where his or her act, justifiably in self-defense, inadvertently results in the death or injury of an innocent bystander. Hence, when one attempts to justifiably defend [himself] [herself], but by mistake or inadvertence kills or injures a different person, no crime has been committed.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Transferred Self-Defense—The doctrine of transferred self-defense is available to insulate one from criminal responsibility where his or her act, justifiably in self-defense, inadvertently resulted in the injury of an innocent bystander. Under this doctrine, “just as one’s criminal intent follows the corresponding criminal act to its unintended consequences,” so too “one’s lack of criminal intent follows the corresponding non-criminal act to its unintended consequences.” (People v. Levitt (1984) 156 CA3d 500, 508 emphasis in original, citing People v. Mathews (1979) 91 CA3d 1018, 1023.)
In People v. Mathews (1979) 91 CA3d 1018, 1024, it was held that “the doctrine of self-defense is available to insulate a defendant from criminal responsibility where his act, justifiable in self-defense, inadvertently results in the injury of an innocent bystander.” This is a well-accepted principle of law. (See e.g., People v. Curtis (1994) 30 CA4th 1337, 1357; see Annotation, Unintentional killing of or injury to third person during attempted self-defense, 55 ALR3d 620 and Later Case Service.) The reason behind this principle is that just as intent follows the act to its natural and probable—albeit unintended—consequences, a defendant’s lack of criminal intent also follows the corresponding justifiable act to its unintended consequences. (Mathews, 91 CA3d at 1023.)
Accordingly, when appropriate, the self-defense and/or transferred intent instructions should incorporate the principle of transferred self-defense.
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 5.12b.
