California Criminal Jury Instructions (CALCRIM) (2017)

505. Justifiable Homicide: Self-Defense or Defense of Another

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B. JUSTIFICATIONS AND EXCUSES
505.Justifiable Homicide: Self-Defense or Defense of Another
The defendant is not guilty of (murder/ [or] manslaughter/ attempted
murder/ [or] attempted voluntary manslaughter) if (he/she) was justified
in (killing/attempting to kill) someone in (self-defense/ [or] defense of
another). The defendant acted in lawful (self-defense/ [or] defense of
another) if:
1. The defendant reasonably believed that (he/she/ [or] someone
else/[or] <insert name or description of third party>)
was in imminent danger of being killed or suffering great bodily
injury [or was in imminent danger of being
(raped/maimed/robbed/ <insert other forcible and
atrocious crime>)];
2. The defendant reasonably believed that the immediate use of
deadly force was necessary to defend against that danger;
AND
3. The defendant used no more force than was reasonably
necessary to defend against that danger.
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 death or 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.
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
situation with similar knowledge would have believed. If the defendant’s
beliefs were reasonable, the danger does not need to have actually
existed.
[The defendant’s belief that (he/she/ [or] someone else) was threatened
may be reasonable even if (he/she) relied on information that was not
true. However, the defendant must actually and reasonably have
believed that the information was true.]
[If you find that <insert name of decedent/victim>
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threatened or harmed the defendant [or others] in the past, you may
consider that information in deciding whether the defendant’s conduct
and beliefs were reasonable.]
[If you find that the defendant knew that <insert name of
decedent/victim> had threatened or harmed others in the past, you may
consider that information in deciding whether the defendant’s conduct
and beliefs were reasonable.]
[Someone who has been threatened or harmed by a person in the past,
is justified in acting more quickly or taking greater self-defense
measures against that person.]
[If you find that the defendant received a threat from someone else that
(he/she) reasonably associated with <insert name of
decedent/victim>, you may consider that threat in deciding whether the
defendant was justified in acting in (self-defense/ [or] defense of
another).]
[A defendant is not required to retreat. 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.
This is so even if safety could have been achieved by retreating.]
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
The People have the burden of proving beyond a reasonable doubt that
the [attempted] killing was not justified. If the People have not met this
burden, you must find the defendant not guilty of (murder/ [or]
manslaughter/ attempted murder/ [or] attempted voluntary
manslaughter).
New January 2006; Revised February 2012, August 2012
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on self-defense when “it appears that
the defendant is relying on such a defense, or if there is substantial evidence
supportive of such a defense and the defense is not inconsistent with the
defendant’s theory of the case.” (People v. Breverman (1998) 19 Cal.4th 142, 157
[77 Cal.Rtpr.2d 870, 960 P.2d 1094] [addressing duty to instruct on voluntary
manslaughter as lesser included offense, but also discussing duty to instruct on
defenses generally]; see also People v. Lemus (1988) 203 Cal.App.3d 470, 478 [249
Cal.Rptr. 897] [if substantial evidence of self-defense exists, court must instruct sua
sponte and let jury decide credibility of witnesses].)
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If there is substantial evidence of self-defense that is inconsistent with the
defendant’s testimony, the court must ascertain whether the defendant wants an
instruction on self-defense. (People v. Breverman, supra, 19 Cal.4th at p. 156.) The
court is then required to give the instruction if the defendant so requests. (People v.
Elize (1999) 71 Cal.App.4th 605, 611–615 [84 Cal.Rptr.2d 35].)
On defense request and when supported by sufficient evidence, the court must
instruct that the jury may consider the effect of “antecedent threats and assaults
against the defendant on the reasonableness of defendant’s conduct.” (People v.
Garvin (2003) 110 Cal.App.4th 484, 488 [1 Cal.Rptr.3d 774].) The court must also
instruct that the jury may consider previous threats or assaults by the aggressor
against someone else or threats received by the defendant from a third party that
the defendant reasonably associated with the aggressor. (See People v. Pena (1984)
151 Cal.App.3d 462, 475 [198 Cal.Rptr. 819]; People v. Minifie (1996) 13 Cal.4th
1055, 1065, 1068 [56 Cal.Rptr.2d 133, 920 P.2d 1337].)
Forcible and atrocious crimes are generally those crimes whose character and
manner reasonably create a fear of death or serious bodily harm. (People v.
Ceballos (1974) 12 Cal.3d 470, 479 [116 Cal.Rptr. 233, 526 P.2d 241].) The
following crimes have been deemed forcible and atrocious as a matter of law:
murder, mayhem, rape, and robbery. (Id. at p. 478.) If the defendant is asserting
that he or she was resisting the commission of one of these felonies or another
specific felony, the court should include the bracketed language at the end of
element 1 and select “raped,” “maimed,” or “robbed,” or insert another appropriate
forcible and atrocious crime. In all other cases involving death or great bodily
injury, the court should use element 1 without the bracketed language.
Related Instructions
CALCRIM Nos. 506–511, Justifiable and Excusable Homicides.
CALCRIM Nos. 3470–3477, Defense Instructions: Defense of Self, Another,
Property.
CALCRIM No. 571, Voluntary Manslaughter: Imperfect Self-Defense Defense or
Imperfect Defense of Another—Lesser Included Offense.
AUTHORITY
• Justifiable Homicide. Pen. Code, §§ 197–199.
Fear. Pen. Code, § 198.
• Lawful Resistance. Pen. Code, §§ 692–694.
• Burden of Proof. Pen. Code, § 189.5; People v. Banks (1976) 67 Cal.App.3d
379, 383–384 [137 Cal.Rptr. 652].
• Elements. People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [56 Cal.Rptr.2d
142, 921 P.2d 1].
• Forcible and Atrocious Crimes. People v. Ceballos (1974) 12 Cal.3d 470,
478–479 [116 Cal.Rptr. 233, 526 P.2d 241].
• Imminence. People v. Aris (1989) 215 Cal.App.3d 1178, 1187 [264 Cal.Rptr.
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167], overruled on other grounds in People v. Humphrey (1996) 13 Cal.4th
1073, 1089 [56 Cal.Rptr.2d 142].
• No Duty to Retreat. People v. Hughes (1951) 107 Cal.App.2d 487, 493 [237
P.2d 64]; People v. Hatchett (1942) 56 Cal.App.2d 20, 22 [132 P.2d 51].
• Reasonable Belief. People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [56
Cal.Rptr.2d 142, 921 P.2d 1]; People v. Clark (1982) 130 Cal.App.3d 371, 377
[181 Cal.Rptr. 682].
• Must Act Under Influence of Fear Alone. Pen. Code, § 198.
• This Instruction Upheld. People v. Lopez (2011) 199 Cal.App.4th 1297, 1306
[132 Cal.Rptr.3d 248]; People v. Genovese (2008) 168 Cal.App.4th 817, 832
[85 Cal.Rptr.3d 664].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, §§ 64–77.
3Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, §§ 73.11, 73.12 (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.04[1][c] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.01[1][b] (Matthew Bender).
COMMENTARY
Penal Code section 197, subdivision 1 provides that self-defense may be used in
response to threats of death or great bodily injury, or to resist the commission of a
felony. (Pen. Code, § 197, subd. 1.) However, in People v. Ceballos (1974) 12
Cal.3d 470, 477–479 [116 Cal.Rptr. 233, 526 P.2d 241], the court held that
although the latter part of section 197 appears to apply when a person resists the
commission of any felony, it should be read in light of common law principles that
require the felony to be “some atrocious crime attempted to be committed by
force.” (Id. at p. 478.) This instruction is therefore written to provide that self-
defense may be used in response to threats of great bodily injury or death or to
resist the commission of forcible and atrocious crimes.
RELATED ISSUES
Imperfect Self-Defense
Most courts hold that an instruction on imperfect self-defense is required in every
case in which a court instructs on perfect self-defense. If there is substantial
evidence of a defendant’s belief in the need for self-defense, there will always be
substantial evidence to support an imperfect self-defense instruction because the
reasonableness of that belief will always be at issue. (People v. Ceja (1994) 26
Cal.App.4th 78, 85–86 [31 Cal.Rptr.2d 475], overruled on other grounds in People
v. Blakeley (2000) 23 Cal.4th 82, 91 [96 Cal.Rptr.2d 451, 999 P.2d 675]; People v.
De Leon (1992) 10 Cal.App.4th 815, 824 [12 Cal.Rptr.2d 825].) The court in
People v. Rodriguez disagreed, however, and found that an imperfect self-defense
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instruction was not required sua sponte on the facts of the case where defendant’s
version of the crime “could only lead to an acquittal based on justifiable homicide,”
and when the prosecutor’s version could only lead to a conviction of first degree
murder. (People v. Rodriguez (1992) 53 Cal.App.4th 1250, 1275 [62 Cal.Rptr.2d
345]; see also People v. Williams (1997) 4 Cal.4th 354, 362 [14 Cal.Rptr.2d 441,
841 P.2d 961] [in rape prosecution, no mistake-of-fact instruction was required
when two sides gave wholly divergent accounts with no middle ground to support a
mistake-of-fact instruction].)
No Defense for Initial Aggressor
An aggressor whose victim fights back in self-defense may not invoke the doctrine
of self-defense against the victim’s legally justified acts. (In re Christian S. (1994)
7 Cal.4th 768, 773, fn. 1 [30 Cal.Rptr.2d 33, 872 P.2d 574].) If the aggressor
attempts to break off the fight and communicates this to the victim, but the victim
continues to attack, the aggressor may use self-defense against the victim to the
same extent as if he or she had not been the initial aggressor. (Pen. Code, § 197,
subd. 3; People v. Trevino (1988) 200 Cal.App.3d 874, 879 [246 Cal.Rptr. 357]; see
CALCRIM No. 3471, Right to Self-Defense: Mutual Combat or Initial Aggressor.)
In addition, if the victim responds with a sudden escalation of force, the aggressor
may legally defend against the use of force. (People v. Quach (2004) 116
Cal.App.4th 294, 301–302 [10 Cal.Rptr.3d 196]; see CALCRIM No. 3471, Right to
Self-Defense: Mutual Combat or Initial Aggressor.)
Transferred Intent Applies
“[T]he doctrine of self-defense is available to insulate one from criminal
responsibility where his act, justifiably in self-defense, inadvertently results in the
injury of an innocent bystander.” (People v. Mathews (1979) 91 Cal.App.3d 1018,
1024 [154 Cal.Rptr. 628]; see also People v. Curtis (1994) 30 Cal.App.4th 1337,
1357 [37 Cal.Rptr.2d 304].) There is no sua sponte duty to instruct on this
principle, although such an instruction must be given on request when substantial
evidence supports it. (People v. Mathews, supra, 91 Cal.App.3d at p. 1025; see also
CALCRIM No. 562, Transferred Intent.)
Definition of “Imminent”
In People v. Aris (1989) 215 Cal.App.3d 1178, 1187 [264 Cal.Rptr. 167], overruled
on other grounds in People v. Humphrey (1996) 13 Cal.4th 1073, 1089 [56
Cal.Rptr.2d 142, 921 P.2d 1], the jury requested clarification of the term
“imminent.” In response, the trial court instructed:
“Imminent peril,” as used in these instructions, means that the peril must have
existed or appeared to the defendant to have existed at the very time the fatal
shot was fired. In other words, the peril must appear to the defendant as
immediate and present and not prospective or even in the near future. An
imminent peril is one that, from appearances, must be instantly dealt with.
(Ibid.)
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The Court of Appeal agreed with this definition of “imminent.” (Id. at pp.
1187–1190 [citing People v. Scoggins (1869) 37 Cal. 676, 683–684].)
Reasonable Person Standard Not Modified by Evidence of Mental Impairment
In People v. Jefferson (2004) 119 Cal.App.4th 508, 519 [14 Cal.Rptr.3d 473], the
court rejected the argument that the reasonable person standard for self-defense
should be the standard of a mentally ill person like the defendant. “The common
law does not take account of a person’s mental capacity when determining whether
he has acted as the reasonable person would have acted. The law holds ‘the
mentally deranged or insane defendant accountable for his negligence as if the
person were a normal, prudent person.’ (Prosser & Keeton, Torts (5th ed. 1984)
§ 32, p. 177.)” (Ibid.; see also Rest.2d Torts, § 283B.)
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