California Criminal Jury Instructions (CALCRIM) (2017)

604. Attempted Voluntary Manslaughter: Imperfect Self-Defense - Lesser Included Offense

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604.Attempted Voluntary Manslaughter: Imperfect Self-
Defense—Lesser Included Offense (Pen. Code, §§ 21a, 192, 664)
An attempted killing that would otherwise be attempted murder is
reduced to attempted voluntary manslaughter if the defendant
attempted to kill a person because (he/she) acted in imperfect
(self-defense/ [or] defense of another).
If you conclude the defendant acted in complete (self-defense/ [or]
defense of another), (his/her) action was lawful and you must find (him/
her) not guilty of any crime. The difference between complete
(self-defense/ [or] defense of another) and imperfect (self-defense/ [or]
defense of another) depends on whether the defendant’s belief in the
need to use deadly force was reasonable.
The defendant acted in imperfect (self-defense/ [or] defense of another)
if:
1. The defendant took at least one direct but ineffective step toward
killing a person.
2. The defendant intended to kill when (he/she) acted.
3. The defendant believed that (he/she/ [or] someone else/
<insert name of third party>) was in imminent
danger of being killed or suffering great bodily injury.
AND
4. The defendant believed that the immediate use of deadly force
was necessary to defend against the danger.
BUT
5. At least one of the defendant’s beliefs was unreasonable.
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
Belief in future harm is not sufficient, no matter how great or how
likely the harm is believed to be. The defendant must have actually
believed there was imminent danger of death or great bodily injury to
(himself/herself/ [or] someone else).
In evaluating the defendant’s beliefs, consider all the circumstances as
they were known and appeared to the defendant.
[If you find that <insert name or description of alleged
victim> threatened or harmed the defendant [or others] in the past, you
may consider that information in evaluating the defendant’s beliefs.]
[If you find that the defendant knew that <insert name or
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description of alleged victim> had threatened or harmed others in the
past, you may consider that information in evaluating the defendant’s
beliefs.]
[If you find that the defendant received a threat from someone else that
(he/she) reasonably associated with <insert name or
description of alleged victim>, you may consider that threat in evaluating
the defendant’s beliefs.]
The People have the burden of proving beyond a reasonable doubt that
the defendant was not acting in imperfect self-defense. If the People
have not met this burden, you must find the defendant not guilty of
attempted murder.
New January 2006; Revised August 2009, October 2010, February 2012, February
2013
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on attempted voluntary manslaughter
on either theory, heat of passion or imperfect self-defense, when evidence of either
is “substantial enough to merit consideration” by the jury. (See People v.
Breverman (1998) 19 Cal.4th 142, 153–163 [77 Cal.Rptr.2d 870, 960 P.2d 1094]
[discussing charge of completed murder]; People v. Barton (1995) 12 Cal.4th 186,
201 [47 Cal.Rptr.2d 569, 906 P.2d 531] [same].)
Perfect 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. (See People v. Ceja (1994) 26
Cal.App.4th 78, 85–86 [31 Cal.Rptr.2d 475], overruled in part in People v. Blakeley
(2000) 23 Cal.4th 82, 91 [96 Cal.Rptr.2d 451, 999 P.2d 675]; see also 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 instruction
was not required sua sponte on the facts of the case where the defendant’s version
of the crime “could only lead to an acquittal based on justifiable homicide,” and
when the prosecutor’s version of the crime could only lead to a conviction of first
degree murder. (People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1275 [62
Cal.Rptr.2d 345]; see also People v. Williams (1992) 4 Cal.4th 354, 362 [14
Cal.Rptr.2d 441, 841 P.2d 961] [in a rape prosecution, the court was not required to
give a mistake-of-fact instruction where the two sides gave wholly divergent
accounts with no middle ground to support a mistake-of-fact instruction].)
In evaluating whether the defendant actually believed in the need for self-defense,
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the jury may consider the effect of antecedent threats and assaults against the
defendant, including threats received by the defendant from a third party that the
defendant reasonably associated with the aggressor. (People v. Minifie (1996) 13
Cal.4th 1055, 1065, 1069 [56 Cal.Rptr.2d 133, 920 P.2d 1337].) If there is
sufficient evidence, the court should give the bracketed paragraphs on prior threats
or assaults on request.
Related Instructions
CALCRIM Nos. 3470–3477, Defense Instructions.
CALCRIM No. 571, Voluntary Manslaughter: Imperfect Self-Defense—Lesser
Included Offense.
CALCRIM No. 603, Attempted Voluntary Manslaughter: Heat of Passion—Lesser
Included Offense.
AUTHORITY
• Attempt Defined. Pen. Code, §§ 21a, 664.
Manslaughter Defined. Pen. Code, § 192.
• Attempted Voluntary Manslaughter. People v. Van Ronk (1985) 171
Cal.App.3d 818, 824–825 [217 Cal.Rptr. 581]; People v. Williams (1980) 102
Cal.App.3d 1018, 1024–1026 [162 Cal.Rptr. 748].
• Imperfect Self-Defense Defined. People v. Flannel (1979) 25 Cal.3d 668,
680–683 [160 Cal.Rptr. 84, 603 P.2d 1]; People v. Barton (1995) 12 Cal.4th
186, 201 [47 Cal.Rptr.2d 569, 906 P.2d 531]; In re Christian S. (1994) 7
Cal.4th 768, 773 [30 Cal.Rptr.2d 33, 872 P.2d 574]; see People v. Uriarte
(1990) 223 Cal.App.3d 192, 197–198 [272 Cal.Rptr. 693] [insufficient evidence
to support defense of another person].
• This Instruction Upheld. People v. Lopez (2011) 199 Cal.App.4th 1297, 1307
[132 Cal.Rptr.3d 248].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the
Person, § 208.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.11 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, §§ 141.20[2], 141.21; Ch. 142, Crimes
Against the Person, §§ 142.01[3][e], 142.02[2][a] (Matthew Bender).
RELATED ISSUES
See the Related Issues section to CALCRIM No. 603, Attempted Voluntary
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Manslaughter: Heat of Passion—Lesser Included Offense and CALCRIM No. 571,
Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense.
605–619. Reserved for Future Use
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