SERIES 500 HOMICIDE
F 571 Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense
TABLE OF CONTENTS
F 571.1 Titles And Identification Of Parties
F 571.1 Inst 1 Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense—Title
F 571.1 Inst 2 Identification Of Prosecution And Defendant
F 571.2 Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 571.3 Voluntary Manslaughter: Imperfect Self-Defense— Lesser Included Offense—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 571.4 Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense— Burden Of Proof Issues
F 571.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 571.4 Inst 2 Whether Absence Of Imperfect Self-Defense Is Element Of Malice
F 571.4 Inst 3 (a & b) Clarification Of Burden Language
F 571.5 Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense—Elements And Definitions
F 571.5 Inst 1 Imperfect Self-Defense: Definition Of Imminent Danger
F 571.5 Inst 2 Imperfect Self-Defense Available When Defendant Only Threatens To Use Force
F 571.5 Inst 3 “Serious Bodily Harm” As Plain Language Paraphrase Of “Great Bodily Injury”
F 571.6 Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense—Defense Theories
F 571.6 Inst 1 Imperfect Self-Defense: Applicability To Mental Defect Or Intoxication
F 571.6 Inst 2 Imperfect Self-Defense: When Defendant Created The Situation
F 571.7 Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense—Preliminary Fact Issues [Reserved]
F 571.8 Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense— Unanimity/ Duplicity/ Multiplicity [Reserved]
F 571.9 Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense— Lesser Offense Issues [Reserved]
Return to Series 500 Table of Contents.
F 571.1 Titles And Identification Of Parties
F 571.1 Inst 1 Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 571.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 571.2 Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 571.3 Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 571.4 Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense—Burden Of Proof Issues
F 571.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 571.4 Inst 2 Whether Absence Of Imperfect Self-Defense Is Element Of Malice
*Replace CC 571 Elements paragraph with:
The prosecution has the burden of proving beyond a reasonable doubt that the defendant did not believe (he/she) was acting in [self-defense] [defense of another]. To meet this burden, the prosecution must prove beyond a reasonable doubt that:
1. The defendant did not actually believe that [he/she/ [or] someone else/ __________ <insert name of third party>] was in imminent danger of being killed or suffering great bodily injury;
AND
2. The defendant did not actually believe that the immediate use of deadly force was necessary to defend against the danger.
If the prosecution has met this burden, you may find the defendant guilty of murder if all elements of that offense have been proven beyond a reasonable doubt. If the prosecution has not met this burden, you must find the defendant not guilty of any crime in Count ____ unless the prosecution has proven beyond a reasonable doubt that the defendant’s belief as to [self-defense] [defense of others] was unreasonable. If the prosecution has met the burden of proving the defendant killed under an unreasonable belief as to [self-defense] [defense of others], you may find the defendant guilty of voluntary manslaughter but not murder.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency: Burden Shifting—The language and structure of CALCRIM 571 unconstitutionally implies that the evidence must establish or prove certain enumerated requirements before the jurors may return a verdict of voluntary manslaughter based on imperfect self-defense. (See FORECITE F 404.2 Inst 1.)
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.)
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
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 5.17 n17.
F 571.4 Inst 3 (a & b) Clarification Of Burden Language
Alternative a:
*Modify CC 571, paragraph 10, as follows [added language is underlined; deleted language is stricken]:
The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in (imperfect self defense/[or] imperfect defense of another) [did not] [actually but] unreasonably believe that [(he/she)] [____________<name of person defended> was in imminent danger of being killed or suffering great bodily injury and that the immediate use of force was necessary to defend against the danger. If the People have not met this burden, you must find the defendant not guilty of murder but you may find (him/her) guilty of voluntary manslaughter.
Alternative b:
*Replace CC 571, paragraph 10 with the following:
The defendant contends that (he/she) [killed] [used force against] _____________ <name of decedent/victim> under the actual belief that [(he/she)] [____________<name of person defended> was in imminent danger of being killed or suffering great bodily injury and that the immediate use of force was necessary to defend against the danger. However, the defendant does not need to prove this contention. Rather, the prosecution must disprove it beyond a reasonable doubt. If you have a reasonable doubt as to whether the prosecution has met this burden, you may not find the defendant guilty of murder. You may find the defendant guilty of voluntary manslaughter if the prosecution has proven beyond a reasonable doubt that either the defendant’s belief in the need to defend or the actual force used by the defendant were unreasonable.
Points and Authorities
The burden of proof paragraph in CALCRIM 571 requires the jurors to conduct a two step process which fails to directly relate the burden of proof to material factual issues. To better assure juror understanding of this crucial principle, the material issues, especially those involving a defense theory, should be directly related to the presumption of innocence. [See FORECITE F 315.1.2 Inst 2.]
To do so, the burden of proof paragraph should be tailored to the facts of the case and the defense theory as set forth above.
See FORECITE F 315.1.2 Inst 2; F 400.2 Inst 1.
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
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.
F 571.5 Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense—Elements And Definitions
F 571.5 Inst 1 Imperfect Self-Defense: Definition Of Imminent Danger
*Add to CC 571:
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
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Imminent Danger Should Be Defined— The above instruction is taken from People v. Aris (1989) 215 CA3d 1178, 1187 (see also In re Christian S. (1994) 7 C4th 768, 783) with the following modifications:
The third sentence has been modified to assure that the subjective standard is conveyed. (See People v. Gough REV GTD/DISD/DEPUB (1993) 19 CA4th 630, 638-39[rejecting argument on appeal but not foreclosing modification upon request at trial].)
Optional language regarding prior assaults or threats has been added. (See FORECITE 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.
CALJIC NOTE: See FORECITE F 5.17a.
F 571.5 Inst 2 Imperfect Self-Defense Available When Defendant Only Threatens To Use Force
*Modify CC 571, Element 2, as follows [added language is underlined; deleted language is stricken]:
2. The defendant actually believed that the immediate threat to use of deadly force was necessary to defend against the danger;
Points and Authorities
See FORECITE F 505.6 Inst 5.
F 571.5 Inst 3 “Serious Bodily Harm” As Plain Language Paraphrase Of “Great Bodily Injury”
See FORECITE F 505.6 Inst 6.
F 571.6 Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense—Defense Theories
F 571.6 Inst 1 Imperfect Self-Defense: Applicability To Mental Defect Or Intoxication
*Add to CC 571:
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
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Mental Defect and Intoxication—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 (1990) 223 CA3d 192, 197; see also In re Christian S. (1994) 7 C4th 768, 781; People v. Cameron (1994) 30 CA4th 591, 601; but see People v. Wright (2005) 35 C4th 964, 974-75 [declining to decide whether imperfect self-defense should be “extended” to delusionary beliefs].)
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.
NOTE: But see People v. Gregory (2002) 101 CA4th 1149 which effectively added a reasonableness element to imperfect self-defense by holding that it cannot be based entirely on delusion. Hence, even though imperfect self-defense is normally predicated on a good faith but unreasonable belief in the necessity to defend one’s self, Gregory held that this is not sufficient to raise the defense if the belief does not arise, at least in part, from the defendant’s perception of the circumstances.
[See Brief Bank # B-742 for additional briefing on this issue.]
CALJIC NOTE: See FORECITE F 5.17b.
F 571.6 Inst 2 Imperfect Self-Defense: When Defendant Created The Situation
Imperfect self-defense does not apply if a defendant’s conduct creates circumstances where the victim is legally justified in resorting to self-defense against the defendant. But the defense is available when the victim’s use of force against the defendant is unlawful, even when the defendant set in motion the chain of events that led the victim to attack the defendant.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Propriety of Instruction—See People v. Vasquez (2006) 136 CA4th 1176, 1179-1180; see also In re Christian S. (1994) 7 C4th 768, 773, fn. 1 [imperfect self-defense unavailable when defendant “has created circumstances under which his adversary’s attack or pursuit is legally justified”].
Identification Of Parties—See FORECITE F 100.2 Note 1.
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 571.7 Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense—Preliminary Fact Issues [Reserved]
F 571.8 Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense—Unanimity/Duplicity/Multiplicity [Reserved]
F 571.9 Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense—Lesser Offense Issues [Reserved]
