CC 3472 provides as follows:
“A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force.”
Under the “plain terms” of this instruction the use of “any amount of ‘force’ entirely preclude[s] [a defendant] from invoking perfect or imperfect self-defense [even if] “the original victim escalated a nondeadly conflict to deadly proportions.” (People v. Ramirez (2015) 233 Cal.App.4th 940, 950.) As such, CC 3472 “misstates the law.” (Ibid.)
Accordingly, when there is evidence in support of such deadly escalation by the original victim the judge is obligated to correct the inaccurate blanket limitation of CC 3472 and properly instruct on the escalation doctrine: “the trial court’s instruction on contrived self-defense erroneously directed the jury to conclude a person has no right of self-defense against an adversary’s deadly attack, even if the defendant contrived to provoke a confrontation to use only nondeadly force against the adversary.” [emphasis in original] (Id. at 945; cf., People v. Enraca (2012) 53 Cal.4th 735, 761–762 [no error in giving CC 3472 in absence of escalation evidence]; People v. Eulian (2016) 247 Cal.App.4th 1324, 1334 [same].)
Sample escalation instructions:
SAMPLE INSTRUCTION #1
An original aggressor who initiated the encounter with non-deadly force, such as a simple assault, need not withdraw if the victim of the simple assault responds in a sudden and deadly counter-assault.
SAMPLE INSTRUCTION #2
A person who participated in nondeadly mutual combat, such as a fist fight, need not withdraw if the other combatant unexpectedly used deadly force.
SAMPLE INSTRUCTION # 3:
If the defendant provoked the use of force, but _______________ (name of alleged victim) used force greatly disproportionate to the defendant’s provocation and it was so great that the defendant reasonably believed [he] [she] was in imminent danger of death or injury, the defendant is not considered to have provoked the incident and [he] [she] lawfully acted in self defense.
[See IOWA CRIMINAL JURY INSTRUCTIONS 400.14 [Provocation – Disproportionate Force] (Iowa State Bar Association, 1991).]
SAMPLE INSTRUCTION # 4:
Before a defendant who is an initial aggressor using nondeadly force can be excused on the grounds of self defense, the defendant has a duty to retreat to avoid the danger if he can do so consistent with his safety. If there is no safe place available, the defendant is entitled to use whatever force is reasonably necessary to repel the counter attack to save himself from imminent danger of serious bodily harm or death.
[See Watkins v. State (MD 1989) 555 A2d 1087; Tipton v. State (MD 1967) 232 A2d 289, 292; see also Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 5.13(b) [Self-Defense-Where Defendant is Alleged Aggressor-Where Defendant Is Aggressor Using Non-Deadly Force, Victim Counterattacks With Deadly Force, And The Defendant Subsequently Uses Deadly Force To Defend] ¶ 2 (Lexis, 2nd ed. 1988).]
SAMPLE INSTRUCTION # 5:
A person who commits a nondeadly wrongful act such as [assaulting another with fists or a weapon that is not deadly] [insulting someone with words] [trespassing on someone else’s property] [trying to take someone else’s property in a nonviolent way] does not lose all right to self defense by committing such a wrongful act. If another person responds by assaulting the initial wrongdoer with deadly force, the initial wrongdoer may lawfully act in self defense.
[See MICHIGAN CRIMINAL JURY INSTRUCTIONS 7.19 [Non Deadly Aggressor Assaulted With Deadly Force] (ICLE, 2nd ed. 1999); see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 5.7; People v. Townes (MI 1974) 218 NW2d 136; People v. Smith (MI 1976) 240 NW2d 475.]
SAMPLE INSTRUCTION # 6:
The use of force in defense of a person is not available to a person who purposely or knowing provokes the use of force against himself unless [such force is so great that he reasonably believes that he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or serious bodily harm to the assailant] [in good faith he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force but the assailant continues or resumes the use of force].
[See MONTANA CRIMINAL JURY INSTRUCTIONS, MCJI 3-105 [Use Of Force By Aggressor] (State Bar of Montana, 1990).]
SAMPLE INSTRUCTION # 7:
The initial aggressor may not invoke the defense of self protection unless: (1) he did not initially use deadly force and (2) the force returned or threatened was such that the defendant believed himself to be in imminent danger of death or serious physical injury.
[See Cooper, KENTUCKY INSTRUCTIONS TO JURIES 11.11 [Self Protection; Initial Aggressor Qualification] (Anderson, 4th ed. 2001).]