SERIES 500 HOMICIDE
F 571 NOTES
TABLE OF CONTENTS
F 571 Note 1 Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense—CALCRIM Cross References And Research Notes
F 571 Note 2 Additional Issues And Instructions From Perfect Self-Defense
F 571 Note 3 Imperfect Self-Defense Applies To Implied Malice
F 571 Note 4 Imperfect Self-Defense: Instruction Warranted If Ordinary Self-Defense Instruction Is Warranted
F 571 Note 5 Imperfect Self-Defense: Requirement That Defendant Believe Lethal Force Is Necessary
F 571 Note 6 Is Imperfect Self-Defense Applicable To Reduce Mayhem To Assault Or Battery?
F 571 Note 7 Applicability Of Imperfect Self-Defense To Aggravated Mayhem
F 571 Note 8 Imperfect Self-Defense As Lesser Included Offense Rather Than Affirmative Defense
F 571 Note 9 Duty To Instruct On Self-defense Or Imperfect Self-defense When Defendant Has Not Testified
F 571 Note 10 Imperfect Self-Defense Inapplicable To Felony Murder
F 571 Note 11 Imperfect Self-Defense Without Intent To Kill: Requires Sua Sponte Instruction On Voluntary Manslaughter
F 571 Note 12 Imperfect Self-Defense Instruction Should Be Included With Manslaughter Instructions
F 571 Note 13 Imperfect Self-Defense: Applicability To Defense Of Others
F 571 Note 14 Application Of Imperfect Self-Defense To Attempted Murder: Adaption Of CALJIC Instructions
F 571 Note 15 No Right To Voluntary Manslaughter Instruction When Defendant Denies Killing Under Oath
F 571 Note 16 Voluntary Manslaughter: Where Only Voluntary Manslaughter Is Charged Prosecution Need Not Disprove Heat Of Passion Or Imperfect Self-Defense
F 571 Note 17 Imperfect Self-Defense: Inapplicable To Enhancements
F 571 Note 18 Permissibility Of Involuntary Manslaughter Conviction In Voluntary Manslaughter Case
Return to Series 500 Table of Contents.
F 571 Note 1 Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense—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 571 Note 2 Additional Issues And Instructions From Perfect Self-Defense
See FORECITE F 505.
F 571 Note 3 Imperfect Self-Defense Applies To Implied Malice
Imperfect self-defense may negate both express and implied malice. (People v. Blakeley (2000) 23 C4th 82, 88; In re Christian S. (1994) 7 C4th 768, 780, fn 4.)
(See also FORECITE 5.17 n14.)
Retroactivity Note: See FORECITE F 570 n13.
CALJIC NOTE: See FORECITE F 5.17d.
F 571 Note 4 Imperfect Self-Defense: Instruction Warranted If Ordinary Self-Defense Instruction Is Warranted
If the record contains substantial evidence of ordinary self-defense, then there is also substantial evidence of imperfect self-defense. (People v. Viramontes (2001) 93 CA4th 1256, 1262; see also People v. DeLeon (1992) 10 CA4th 815; but see People v. Valenzuela (2011) 199 CA4th 1214.) This is so because self-defense requires both an honest and reasonable belief in imminent peril, while imperfect self-defense requires only an honest belief. If there was substantial evidence of the defendant’s “honest belief” for self-defense purposes, there must also be substantial evidence of his “honest belief” for imperfect self-defense purposes. (DeLeon, 10 CA4th at 824; see also People v. Ceja (1994) 26 CA4th 78, 88-91, dis. op.)
CALJIC NOTE: See FORECITE F 5.17 n2.
F 571 Note 5 Imperfect Self-Defense: Requirement That Defendant Believes Lethal Force Is Necessary
In order to warrant a conviction of manslaughter rather than murder based upon imperfect self-defense, the defendant must honestly believe that serious injury is imminent and that lethal force is necessary. (People v. Uriarte (1990) 223 CA3d 192, 197.)
CALJIC NOTE: See FORECITE F 5.17 n5.
F 571 Note 6 Is Imperfect Self-Defense Applicable To Reduce Mayhem To Assault Or Battery?
In People v. McKelvey (1987) 194 CA3d 694, 701-07, the lead opinion of Kline, P.J. declared that an actual but unreasonable belief in the need for self-defense negated the malice required for a conviction of mayhem (PC 203), mitigating the crime to assault or battery. The opinion concluded that a Flannel-type instruction (People v. Flannel (1979) 25 C3d 668) should be given sua sponte in mayhem cases where there was more than minimal evidence of self-defense. (But see People v. Hayes (2004) 120 CA4th 796, 805 [Flannel is wholly inapplicable to mayhem].)
However, People v. Sekona (1994) 27 CA4th 443, 452-53, disagreed with the McKelvey lead opinion and held that the malice required for mayhem under PC 203 is different from the malice required for murder under PC 188. Accordingly, Sekona held that Flannel should not operate to negate mayhem-malice based on imperfect self-defense. Despite Sekona’s extensive discussion of the technical aspects of the issue, it fails to adequately explain why imperfect self-defense should apply when the victim is killed but not when some lesser injury is inflicted upon the victim. [See Brief Bank # B-628for a copy of the Petition for Review in Sekona.]
CALJIC NOTE: See FORECITE F 5.17 n7.
F 571 Note 7 Applicability Of Imperfect Self-Defense To Aggravated Mayhem
Because ordinary mayhem (PC 203) requires malice, it has been argued that imperfect self-defense should apply to reduce mayhem to assault or battery. (See FORECITE F 571 n6.) However, even if imperfect self-defense is not applied to ordinary mayhem, it should be applied to aggravated mayhem for public policy reasons.
The penalty for aggravated mayhem (PC 205) is life with the possibility of parole. On the other hand, the penalty for voluntary manslaughter (i.e., an imperfect self-defense killing) is 3, 6 or 11 years. Therefore, if imperfect self-defense is not applied to aggravated mayhem, a person will actually have an incentive to kill his or her victim in order to obtain a lesser sentence. Such an absurd result is contrary to public policy, substantive due process under the federal constitution (14th Amendment) and could not have been intended by the legislature. Although the aggravated mayhem statute does not specifically require malice, it does require that the defendant act “unlawfully” and “under circumstances manifesting extreme indifference ….” Therefore, under the reasoning that imperfect self-defense negates unlawful intent (see In re Christian S. (1994) 7 C4th 768, 778-79), imperfect self-defense should be permitted to negate the mens rea for aggravated mayhem.
CALJIC NOTE: See FORECITE F 5.17 n8.
F 571 Note 8 Imperfect Self-Defense As Lesser Included Offense Rather Than Affirmative Defense
People v. Barton (1995) 12 C4th 186 disapproved People v. Wickersham (1982) 32 C3d 307, 329, which held that “unreasonable self-defense” is a “defense.” “Unreasonable self-defense” is not a true defense because it is a shorthand description of one form of voluntary manslaughter. In other words, it is a lesser included offense of the crime of murder. “Accordingly, when a defendant is charged with murder, the trial court’s duty to instruct sua sponte, or on its own initiative, on unreasonable self-defense is the same as its duty to instruct on any other lesser included offense: This duty arises whenever the evidence is such that a jury could reasonably conclude that the defendant killed the victim in the unreasonable but good faith belief in having to act in self-defense.” (Barton, 12 C4th at 201.)
CALJIC NOTE: See FORECITE F 5.17 n9.
F 571 Note 9 Duty To Instruct On Self-defense Or Imperfect Self-defense When Defendant Has Not Testified
(See FORECITE F 505 n7.)
F 571 Note 10 Imperfect Self-Defense Inapplicable To Felony Murder
(See People v. Loustaunau (1986) 181 CA3d 163, 170.)
CALJIC NOTE: See FORECITE F 5.17 n13.
F 571 Note 11 Imperfect Self-Defense Without Intent To Kill: Requires Sua Sponte Instruction On Voluntary Manslaughter
The People v. Blakely (2000) 23 C4th 82) concept of conscious disregard for life as an avenue under unreasonable self-defense to find voluntary manslaughter sets forth an entirely new theory to reach voluntary manslaughter. Therefore, the trial court has a sua sponte duty to instruct on this theory if it is not covered by the other instructions. (See generally People v. Sedeno (1974) 10 C3d 703.) [See Brief Bank # B-922 and Opinion Bank # O-314 for briefing and an unpublished opinion addressing this issue.]
CALJIC NOTE: See FORECITE F 5.17 n14.
F 571 Note 12 Imperfect Self-Defense Instruction Should Be Included With Manslaughter Instructions
The sequence of the instructions can, in some circumstances, result in confusion. One such circumstance is when the courts instruct on imperfect self-defense (e.g., CJ 5.17). Imperfect self-defense instructions should logically be included with the instructions on voluntary manslaughter. [See Brief Bank # B-922 and Opinion Bank # O-314 for briefing and an unpublished opinion addressing this issue.]
CALJIC NOTE: See FORECITE F 5.17 n15.
F 571 Note 13 Imperfect Self-Defense: Applicability To Defense Of Others
“The doctrine of unreasonable or imperfect defense of others, in contrast to the doctrine of unreasonable or imperfect self-defense, is not well established in California law.” (People v. Michaels (2002) 28 C4th 486, 529.) However, the concept of imperfect defense of others “follows logically from the interplay between statutory and decisional law.” (Michaels, 28 C4th at 530; see also People v. Randle (2005) 35 C4th 987, 996.) Accordingly, such an instruction should be given when requested.
CALJIC NOTE: See FORECITE F 5.17 n16.
F 571 Note 14 Application Of Imperfect Self-Defense To Attempted Murder: Adaption Of CALJIC Instructions
[See Instruction Bank # I-852for a package of instructions modifying CALJIC to provide for application of imperfect self-defense to attempted murder.]
F 571 Note 15 No Right To Voluntary Manslaughter Instruction When Defendant Denies Killing Under Oath
See FORECITE F 570 Note 11.
F 571 Note 16 Voluntary Manslaughter: Where Only Voluntary Manslaughter Is Charged, Prosecution Need Not Disprove Heat Of Passion Or Imperfect Self-Defense
See FORECITE F 570 Note 12.
F 571 Note 17 Imperfect Self-Defense: Inapplicable To Enhancements
In People v. Goins (1991) 228 CA3d 511, 516-18, the defendant was charged with assault with force likely to produce great bodily injury and with a great bodily injury enhancement. The jury rejected the defense of reasonable self-defense. On appeal, the defendant argued that an instruction on unreasonable self-defense should have been given with respect to the enhancement since it contained a specific intent element not present in the underlying assault charge. The court of appeal rejected this argument holding that the requisite specific intent would have been present regardless of unreasonable self-defense.
However, the court of appeal’s analysis is incomplete because it fails to consider whether the specific intent required by the great bodily injury enhancement includes felonious (i.e., wrongful) intent. (See People v. Vogel (1956) 46 C2d 798, 801, fn 2.) For example, a person who takes property under a good faith claim of right has the specific intent required for theft (i.e., to permanently deprive the other of the property) but, because that specific intent is not criminal, there is no liability for the crime of theft. See FORECITE F 1863.)
CALJIC NOTE: See FORECITE F 5.17 n6.
F 571 Note 18 Permissibility Of Involuntary Manslaughter Conviction In Voluntary Manslaughter Case
For crimes committed prior to the decision in People v. Blakeley (2000) 23 C4th 82 [effective date 6/2/2000] instruction on involuntary manslaughter is permissible if there is evidence that the defendant acted with conscious indifference to human life and killed unintentionally in imperfect self-defense. For crimes committed after Blakeley‘s effective date, instruction on involuntary manslaughter is only permissible based on the “absence” rather than “negation” of malice. (Blakeley, 25 C4th at 91.)
