SERIES 500 HOMICIDE
F 505 NOTES
TABLE OF CONTENTS
F 505 Note 1 Justifiable Homicide: Self-Defense or Defense of Another—CALCRIM Cross References and Research Notes
F 505 Note 2 Applicability Of Self-Defense To Felony Murder (PC 197 & PC 198)
F 505 Note 3 Self-Defense: When Self-Defense May Be Used Against Arrest By Private Citizen (PC 197 & PC 198)
F 505 Note 4 Self-Defense: Battered Woman/Child Syndrome (PC 197 & PC 198)
F 505 Note 5 Self-Defense: Vulnerability Of Defendant To Show Honest Belief In Peril (PC 197 & PC 198)
F 505 Note 6 Self-Defense: Abnormal Fear As Evidence Of Honest Belief Of Peril (PC 197 & PC 198)
F 505 Note 7 Duty To Instruct On Self-Defense Or Imperfect Self-Defense When Defendant Has Not Testified
F 505 Note 8 Antecedent Threat Doctrine Applies To Recent Threats Or Violence By Victim
F 505 Note 9 Failure To Request Antecedent Threats Instruction As IAC
F 505 Note 10 Self-Defense: Applicability To Aider And Abettor
F 505 Note 11 Prisoner’s Right To Self Defense
F 505 Note 12 CALCRIM 505 Should Not Be Used For Non-Homicide Target Crimes In A Homicide Prosecution Based On The Natural And Probable Consequences Doctrine Of Aider And Abettor Liability
F 505 Note 13 Self-Defense Premised On Non-Homicide Offense
Return to Series 500 Table of Contents.
F 505 Note 1 Justifiable Homicide: Self-Defense or Defense of Another—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 506B 511 [Justifiable and Excusable Homicides]
CALCRIM 3470B 3477 [Defense Instructions: Defense of Self, Another, Property]
CALCRIM 571 [Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense]
Research Notes:
See CLARAWEB Forum, Homicide— Series 500-700.
F 505 Note 2 Applicability Of Self-Defense To Felony Murder (PC 197 & PC 198)
It has been held that self-defense does not apply to felony murder predicated upon a nighttime burglary of an occupied residence. (People v. Loustaunau (1986) 181 CA3d 163, 170.) However, as to a claim of complete self-defense, Loustaunau is merely dicta. The claim in that case was one of imperfect self-defense and the court rejected that claim noting, “… an honest but unreasonable belief in self-defense negates malice aforethought [Citation.] In felony murder, on the other hand, malice aforethought is not required.” (181 CA3d at 170.)
Moreover, no case has addressed the question of whether felony murder predicated upon a non-deadly felony (e.g., second degree auto-burglary) precludes self-defense. Because a citizen’s right to use deadly force to apprehend a felon turns on whether the felony was “forcible and atrocious” (see People v. Quesada (1980) 113 CA3d 533, 539), it follows that self-defense should be available to defend against the use of deadly force by the apprehending citizen when the defendant committed a felony which was not “forcible and atrocious.” [See Brief Bank # B-521 for briefing on this issue.]
[Research Note: See FORECITE BIBLIO 5.10, et al.]
CALJIC NOTE: See FORECITE F 5.12 n1.
F 505 Note 3 Self-Defense: When Self-Defense May Be Used Against Arrest By Private Citizen (PC 197 & PC 198)
CALJIC contains no instruction defining the circumstances under which a private citizen may use deadly force to apprehend a felon. PC 197, as judicially interpreted, permits the use of deadly force by a citizen when “the circumstances of a particular case establish that the perpetrator’s conduct threatened, or was reasonably believed to threaten, death or serious bodily harm.” (See People v. Ceballos (1974) 12 C3d 470, 479.) Also, the arresting citizen must have actual knowledge that the felony was committed by the person being arrested. (See PC 837; Gomez v. Garcia (1980) 112 CA3d 392, 397; People v. Aldapa (1971) 17 CA3d 184, 188.)
[Research Note: See FORECITE BIBLIO 5.10, et al.]
CALJIC NOTE: See FORECITE F 5.12 n3.
F 505 Note 4 Self-Defense: Battered Woman/Child Syndrome (PC 197 & PC 198)
See FORECITE F 851.2 Inst 3; F 9.35.1; see also FORECITE BIBLIO 9.35.1.
[Research Note: See FORECITE BIBLIO 5.10, et al.]
CALJIC NOTE: See FORECITE F 5.12 n4.
F 505 Note 5 Self-Defense: Vulnerability Of Defendant To Show Honest Belief In Peril (PC 197 & PC 198)
The vulnerability of the defendant may be used to show an honest belief in peril. (People v. Welch (1982) 137 CA3d 834, 840.)
[Research Note: See FORECITE BIBLIO 5.10, et al.]
CALJIC NOTE: See FORECITE F 5.12 n5.
F 505 Note 6 Self-Defense: Abnormal Fear As Evidence Of Honest Belief Of Peril (PC 197 & PC 198)
Abnormal fear as evidence of honest belief in peril. (People v. Wells (1949) 33 C2d 330, 344-45.)
[Research Note: See FORECITE BIBLIO 5.10, et al.]
CALJIC NOTE: See FORECITE F 5.12 n6.
F 505 Note 7 Duty To Instruct On Self-Defense Or Imperfect Self-Defense When Defendant Has Not Testified
“The element of intent is rarely susceptible of direct proof and must usually be inferred from all the facts and circumstances disclosed by the evidence.” (People v. Falck (1997) 52 CA4th 287 at 299; see also People v. Anderson (1983) 144 CA3d 55, 64 [Mayberry defense of good-faith belief in consent].)
Hence, even if the defendant did not testify, the trial court has a sua sponte duty to give self-defense instruction if there is substantial circumstantial evidence of self-defense, either complete or imperfect, not inconsistent with the defense theory of the case. (See People v. DeLeon (1992) 10 CA4th 815, 824 citing People v. Wickersham (1982) 32 C3d 307, 326.) “Substantial evidence of a defendant’s state of mind, including an ‘honest but unreasonable belief in the necessity to defend against imminent peril to life’ (CJ 5.17), may be present without the defendant’s testimony. [Citations.] [Original emphasis.]” (DeLeon, supra, at 824.)
See also FORECITE PG X(A)(1.3.2).
CALJIC NOTE: See FORECITE F 5.12 n7.
F 505 Note 8 Antecedent Threat Doctrine Applies To Recent Threats Or Violence By Victim
While the antecedent threat doctrine has typically been considered in circumstances involving prior threats or violence by the victim on previous occasions (see, e.g., People v. Bush (1978) 84 CA3d 294), the rationale of the doctrine applies to any violence or threat which precedes the act of defense. “A person claiming self-defense is required to ‘prove his own frame of mind,’ and in so doing is ‘entitled to corroborate his testimony that he was in fear for his life by proving the reasonableness of such fear.’ [Citation.]” (People v. Minifie (1996) 13 C4th 1055, 1065.) “The defendant’s perceptions are at issue…[and therefore]…threats are relevant to the defendant’s state of mind—a matter ‘of consequence to the determination of the action’ [EC 210]—and the trier of fact is entitled to consider those threats along with other relevant circumstances in deciding whether the defendant’s actions were justified.” (Minifie, 13 C4th at 1066.)
Accordingly, a long line of California cases have held that prior threats or violence by the victim justify an instruction informing the jury that such threats or violence justify the defendant in acting more quickly and taking harsher measures for his or her own protection than would be a person who had not received such threats. (See, People v. Moore (1954) 43 C2d 517, 528; People v. Gonzalez (1992) 8 CA4th 1658, 1664; see also, FORECITE F 820.5 Inst 3; F 5.12a.)
While these and other antecedent threat cases involve threats on previous occasions, the same concerns apply to threats or violence which are near or contemporaneous to the act of defense. As observed by the U.S. Supreme Court: “Here the threats were recent and were communicated, and were admissible in evidence as relevant to the question of whether defendant had reasonable cause to apprehend and attack…and hence was justified in acting on a hostile demonstration and one of much less pronounced character than if such threats had not preceded it. They were relevant because indicating cause of apprehension of danger and reason for promptness to repel attack….” [Emphasis added.] (Allison v. U.S. (1895) 160 US 203, 215 [40 LEd2d 395; 16 SCt 252].)
Similarly, State v. Peoples (1981 Mo.) 621 SW2d 324, 327, summarized this principle as follows: “The developed law of self-defense requires the special attention of the jury to evidence of prior threats, reputation or the turbulent disposition of the victim, and described acts of violence by the victim upon the defendant as those incidents may bear to prove the basic elements of the defense. [Citations.] A mere direction to the jury to consider such proofs does not suffice. That is because those aspects of evidence are ‘the very heart of self-defense.’ [Citation.] In a word: such evidence, contrary to contention, serves the duplicate role as proof of the fact of aggressor and as proof of the fact of the reasonableness of the apprehension at the time of resort to physical force for defense. [Citations.] That evidence, so salient to the defense, becomes part of the law of the case and is given to the jury as a component of the basic self-defense instruction. [Citations.] Thus, these incidents of prior threat of violence are submitted to explain the conduct of the defendant at the time of resort to defense, and not at the time of a determined provocation by the victim. They encompass for purpose of instruction any threat or violence by the victim upon the defendant prior to the act of defense, whether contemporaneous with that conduct or less proximate to that event. [Citations.]” [Emphasis added.]
Similarly, the Alabama courts have long held that the accused is entitled to the following instruction which focuses on the defense theory of victim threats or violence: “I charge you, members of the jury, that while threats alone will not serve as a justification for a homicide, if the jury believes from the evidence that the deceased, at the time of the homicide, was manifesting an intention to carry such threats into execution, by a positive act then done, or, that from the acts of the deceased at the time of the homicide, it would have appeared to a reasonable mind, under the circumstances, that the deceased was attempting to execute the threats against the defendant, you may then consider the threats made by the deceased in justification of the homicide.” (See Quinlivan v. State (1989 Ala.) 555 So2d 802, 804.) This instruction is required “when a threat is made by a victim at or about the time of a fatal altercation, as well as when threats are made by a victim prior to an incident causing his death.” (Ibid.) ” ‘An accused is entitled to the charge in question whenever some evidence of self-defense has been offered and some testimony of a threat and its attempted execution has been presented.’ [Citation.]” (Ibid.)
Nor do general self-defense instructions, which do not specifically address the issue of threats or violence by the victim, suffice. “[E]ven though the trial court ‘fully and fairly’ instructs the jury on the defense of self-defense, because the general law of self-defense does not cover the situation expressed in the charge [the victim threat/violence instruction should be given on request].” (Quinlivan, 555 So2d at 204; see also, Hunter v. State (1975) 325 So2d 921, 925 [295 Ala. 180] [threat concept not covered by other charges which had “no mention of ‘threats’ ” ]; see also State v. Peoples, supra, 621 SW2d at 328 [“evidence of threat and act of violence by victim shortly before the act of defense required sua sponte instruction on antecedent threats and failure to so instruct was prejudicial error.]” [See Brief Bank # B-757 for additional briefing on this issue.]
CALJIC NOTE: See FORECITE F 5.12 n8.
F 505 Note 9 Failure To Request Antecedent Threats Instruction As IAC
[See Brief Bank # B-922 and Opinion Bank # O-314 for briefing and an unpublished opinion addressing this issue.]
CALJIC NOTE: See FORECITE F 5.12 n9.
F 505 Note 10 Self-Defense: Applicability To Aider And Abettor
See FORECITE F 401.6 Inst 4.
F 505 Note 11 Prisoner’s Right To Self Defense
See FORECITE F 3470 Note 9.
F 505 Note 12 CALCRIM 505 Should Not Be Used For Non-Homicide Target Crimes In A Homicide Prosecution Based On The Natural And Probable Consequences Doctrine Of Aider And Abettor Liability
While the Penal Code provides for defense of self and others as justification for homicide (§197), it more generally recognizes the same defense to threatened crimes or injuries (§692, §693, §694). (See also, Civ. Code, §50.) In general, as this court has noted, there is “no reason to distinguish non-homicidal from homicidal assault cases. Self defense negates culpability for assaultive crimes, whether or not the assault results in death. [Citations.]” (People v. Adrian (1982) 135 CA3d 335, 340.)
Thus, CALCRIM includes separate pattern self-defense instructions for homicide/attempted-homicide and non-homicide crimes. In the first – the only one given below – a defendant is “justified in killing or attempting to kill someone in self-defense” if the defendant (1) “reasonably believed” he or she or another party “was in imminent danger of being killed or suffering great bodily injury”; (2) “reasonably believed that the immediate use of deadly force was necessary to defend against that danger”; and (3) “used no more force than was reasonably necessary to defend against that danger.” (CALCRIM 505, “Justifiable Homicide: Self-Defense.”) By its terms, this instruction is designed for defense to a charged homicide or attempted homicide — where the prosecution’s theory is that the defendant killed or attempted to kill a victim. “For killing to be in self-defense,” the defendant’s actual and reasonable “‘must be of imminent danger to life or great bodily injury.’ [Citation.]” (People v. Humphrey (1996) 13 C4th 1073, 1082, italics added, original italics removed.)
In the more general instruction – where the prosecution is trying to prove the defendant’s commission of a non-homicidal crime – the defendant is not guilty if he or she (1) “reasonably believed” he or she or another party “was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully]”; (2) “reasonably believed that the immediate use of force was necessary to defend against that danger”; and (3) “used no more force than was reasonably necessary to defend against that danger.” (CALCRIM 3470, “Right to Self-Defense or Defense of Another (Non-Homicide),” italics added.) Under both instructions – as well as the Penal Code provisions cited above – the general principles are the same: essentially, “[o]ne is entitled to use such force as is reasonable under the circumstances to repel what is honestly and reasonably perceived to be a threat of imminent harm. [Citations.]” (People v. Robertson (2004) 34 C4th 156, 167-168, overruled on another point in People v. Chun (2009) 45 C4th 1172, 1201.) But in the non-homicidal context, the defendant fears only injury or battery, not death or great bodily injury, and believes in the necessity of force, not deadly force. (See, e.g., People v. Myers (1998) 61 CA4th 328, 330 [assault conviction reversed; instruction should have explained defendant may use reasonable force to resist battery even without reason to believe bodily injury is imminent].)
Thus, CC 3470 should be used in lieu of CC 505 with respect to non-homicide target offenses.
ACKNOWLEDGEMENT: THANK YOU TO STEPHEN GREENBERG FOR IDENTIFYING AND BRIEFING THIS ISSUE.
F 505 Note 13 Self-Defense Premised On Non-Homicide Offense
CALCRIM No. 3470 is a more fitting instruction than CALCRIM No. 505 when the defendant relies on self-defense to a homicide charge that is premised on the commission of non-homicide offense. (See, e.g., People v. Thompson UNPUB’D (2011, G043404) 2011 Cal. App. Unpub. LEXIS 3045, [AG concluded that CC 3470 instead of CC 505 was appropriate].)
