Opinion
A147504
07-31-2018
THE PEOPLE, Plaintiff and Respondent, v. DANIEL JAMES DIETERS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR647976)
A jury found defendant Daniel James Dieters guilty of voluntary manslaughter in the slaying of Roy ("R.J.") Kauwe, a friend who had just won over the affections of Dieters' longtime girlfriend whom Dieters had hoped someday to marry. Dieters carried out the killing dejected and despondent, even suicidal, during a physical altercation at his friend's apartment that left his friend with multiple knife wounds, including a fatal four-inch slash to the throat. Dieters was unharmed. His sole theory at trial was that he acted in self-defense. According to Dieters, his friend unexpectedly attacked him with a knife and then in the ensuing struggle tried to reach a cache of other deadly weapons in a nearby room, including a loaded gun.
Dieters now contends that five errors in the instructions on self-defense, alone and in combination, prejudicially affected the jury's manslaughter verdict in violation of state and federal law. We reject his arguments and affirm the judgment of conviction.
BACKGROUND
A. The Love Triangle
Dieters and his girlfriend, Kayla Lindsay, began dating in high school, and by the time of the killing seven years later were living together in an apartment in Rohnert Park, California. Kayla attended junior college and also worked at a local Costco store, which is where she met the victim, R.J., who was a co-worker. The three became friends.
Dieters, over six feet tall and weighing 350 pounds, worked as a security guard at a local casino and Kayla and others who knew him, including co-workers, thought of him as a gentle giant. Kayla had never known him to get into physical confrontations or fights during their relationship, and even when dealing with unruly patrons on the job he was neither confrontational nor aggressive.
R.J. collected weapons, both firearms and knives, and always carried a knife wherever he went. Dieters knew about R.J.'s weapons, and would sometimes see guns and knives when visiting R.J. at his home.
In February 2014 (all dates are in that year) R.J. broke up with a girlfriend and stayed with Dieters and Kayla temporarily for several weeks until he found a new apartment.
Early that same month, R.J. bought a curved knife in Japantown as a gift for Dieters that would be used the following month in the fatal attack. R.J. gave the knife to Kayla, and she in turn gave it to Dieters as a Valentine's Day gift. She never saw the knife again after that. Dieters testified the knife went missing, and he assumed R.J. had taken it accidentally when R.J. moved out of Dieters' and Kayla's apartment. But, according to Kayla, at some point before the killing Dieters told Kayla he had found the knife (he denied this).
In early March, after R.J. had moved out, Kayla realized she had fallen in love with R.J. On March 6, she disclosed her feelings to Dieters and told him she was breaking up with him, and he angrily stormed out of their apartment to stay the night at a hotel. He was upset, and returned to the apartment later on and read texts from R.J. on Kayla's cell phone. Later that night, Dieters went to R.J.'s apartment to talk with R.J. about the situation but denied being mad at R.J. The next day, after Dieters had written Kayla a six-page letter, Kayla changed her mind and agreed to stay in the relationship and try to work things out, but over the next several weeks things between them were rocky.
The jury heard details of their relationship unraveling in this period, as Kayla gravitated increasingly toward R.J. and Dieters vacillated between trying to win her back and trying to accept that their relationship appeared to be over. He sometimes acted upset, volatile and angry (although at trial he denied feeling any anger). Other times, he just felt depressed. One time after a failed attempt to win Kayla back by cooking her a romantic dinner, he kicked the dinner table afterwards in frustration, toppling candles and glasses and spilling wine, and threw pillows across the room. Another day he defriended R.J. on Kayla's Facebook account and blocked R.J.'s number from her phone, although he apologized the same day. During this period, Dieters also confided in Kayla's best friend, Cody Robertson, to seek relationship advice and to find out what was going on between Kayla and R.J. because Dieters didn't know if he could trust her. Dieters even told Robertson he wanted to marry Kayla. Dieters testified he felt suicidal during this period, because he had planned to spend the rest of his life with Kayla.
At some point in this period, in early March, R.J. told a friend in a text message he was afraid Dieters was going to hurt him. Around the same time, R.J. invited Dieters to his apartment one day to play video games and jokingly texted Dieters that he was "cocked and loaded." Dieters took this to mean R.J. had a loaded gun waiting for him but didn't take the comment seriously. Dieters arrived at R.J.'s apartment to see R.J. sitting on the floor next to a handgun, which R.J. then moved to the bedroom.
Eventually on March 17, three days before the killing, Kayla told Dieters their relationship was over and she was breaking up with him, and he cried. She did this at the place they had once contemplated having their wedding (the Palace of Fine Arts), during a daytrip they took together to San Francisco, ostensibly as friends. Dieters also received a fortune that day reading, "A dark haired person will leave your life and you'll be forever happy." This prompted Kayla to joke about R.J., who had dark hair. Dieters kept the fortune.
Three days later, on March 20, Dieters killed R.J. late at night in R.J.'s apartment, stabbing him seven times in the neck. The fatal wound, which caused R.J. to bleed to death, was a slash to the throat, four inches wide and more than two inches deep.
B. The Homicide
The day began with Dieters taking Kayla briefly to Costco where they saw, but did not talk to, R.J.; as they left, Dieters forcefully put his arm around Kayla's waist, and he refused to let go when she protested and reminded him she was no longer his girlfriend. Dieters then accompanied Kayla to a dental appointment, and after that they returned to their apartment. While Kayla was resting, she saw Dieters take the fortune out of his wallet and read it when he thought she was sleeping. Later that afternoon, around 4:30, she left to spend time with R.J. who had invited her to visit his sister with him, and she told Dieters her plans.
While Kayla was gone, Dieters stewed and grew increasingly agitated as he waited for her to come back. He spent some time watching an old television episode on YouTube that depicted a character picking a lock to escape from a locked room, and then he researched information online about how to pick locks and took a picture of his front door. He testified he did this because he was thinking of changing the lock on their apartment door. Eventually he got depressed and began calling friends. First, he called Kayla's best friend, Cody Robertson, and talked for an hour. Dieters sounded calm and stoic, but heartbroken. Among other things, he said he wasn't sure what he was capable of doing if he ever found out R.J. and Kayla kissed, and he asked Robertson, who lived in San Francisco, to pay them a surprise visit to help him patch things up with Kayla. At around 6:40 p.m., Dieters called his close friend and Kayla's cousin, Robert Bozzoli. Dieters told Bozzoli he and Kayla were breaking up, that he felt "backstabbed" by R.J. who was taking his girlfriend, and mentioned she was out with R.J. and that he just wanted her to come home.
At approximately 8:00 p.m., Dieters spoke to R.J.'s best friend, Jean Lovett, at the local Target store where Lovett worked. Lovett was a friend of Dieters, but the two hadn't spoken in several weeks. They talked about the situation for about 45 minutes, and Dieters seemed to become depressed when Lovett disclosed that R.J. and Kayla had been communicating with each other frequently. He didn't seem angry or agitated, though. Dieters mentioned feeling potentially suicidal. He wanted to continue the conversation after Lovett got off work, so they agreed to meet later at a restaurant across the street, after Lovett got off work at around 11:30 p.m. Earlier that evening, Lovett had sent a joking text message to R.J. saying that if Dieters showed up at R.J.'s doorstep Lovett would "hide in the bushes with a .9 millimeter handgun," Viet Cong style, and adding, "You better load up on all the guns, LOL" (meaning "laugh out loud"). R.J. had responded, "Ha ha."
At approximately 9:40 p.m., Dieters called Bozzoli again. At first, Dieters seemed happier to Bozzoli, but then his mood seemed to darken and become more paranoid. It continued to worsen as the conversation wore on, because Kayla hadn't returned home and he "assumed the wors[t] was happening." Dieters started blaming R.J. for his problems with Kayla. He told his friend he wanted to punch R.J. to get his anger out. And he said he was watching for R.J.'s car to see when R.J. and Kayla came home, which worried Bozzoli because it seemed like a "stalker thing." Dieters also said he wanted to kill himself and was researching methods but didn't want to hurt his family; Bozzoli didn't think Dieters was serious, and told Dieters he was being an idiot. At one point, Bozzoli cracked a joke about a sword Dieters owned; he said it was stupid to have a sword unless you use it and suggested Dieters go slice R.J. with it. Dieters didn't laugh. Instead, according to Bozzoli, Dieters said he had a pocketknife that he had received on Valentine's Day, Bozzoli jokingly suggested he use it to stab R.J. in the face a few times, and Dieters said he kept the knife in his closet. At trial, Dieters denied having a conversation with Bozzoli about the knife and testified Bozzoli was lying about that. He also denied expressing anger toward R.J. in his conversation with Bozzoli.
Dieters testified he went to the restaurant where he'd agreed to meet Lovett at around 10:00 p.m., but Lovett wasn't there. Dieters received a text from Lovett around 10:30, who said he had stopped to get something to eat first. After waiting for another 10 or 15 minutes, Dieters left and began walking back to his apartment. Lovett testified he went to the restaurant at 11:30 p.m., but Dieters never arrived.
On his way home, Dieters got a call from Kayla who had returned to find their apartment empty, after having left R.J.'s apartment at about 10:30 p.m. They spoke only briefly. Dieters asked if she had had a good time and whether she had made a decision yet, and she responded that she had but he wasn't going to like her decision. Dieters asked if she had chosen R.J., and she replied that she had. Dieters told Kayla he had just talked to Jean at Target, who said R.J. was just in the relationship because he's lonely, and then Dieters insisted, "He doesn't love you. It's not like you and me." Kayla responded, "That's fine. I want the relationship." Dieters asked if anything had happened between them, and she told him she and R.J. had kissed. He asked, "[w]as it better than ours?" and she replied, "[i]t was different." At that point, Dieters' tone of voice seemed to change slightly, but not in a way that alarmed her. She asked him where he was, and he said "around."
After their phone call ended, Dieters decided to go to R.J.'s apartment to pass the time. He testified he did this because he was considering spending the night at a hotel again but needed to wait for his paycheck to clear his bank account. He still considered R.J. a friend and was used to going over to talk with R.J. He denied feeling angry about the kiss and testified he had already been prepared mentally for that to happen.
Meanwhile, Kayla called R.J. But not to warn him. Rather, she chided R.J., saying she had just talked to Dieters who had told her "a little birdie at Target said that you're just in the relationship because you're lonely." R.J. registered surprise ("What? Jean said that?") and she replied with a light-hearted quip ("Yeah. Sorry to break the bro code"). She then jokingly remarked that she didn't know where Dieters was, but that he was either on his way home to kill her or on his way to R.J.'s house to kill him. They both laughed. R.J. then asked, "Can we just talk about this in person? Because I don't want to do this over the phone." Then he added, "Daniel's here. What do I do?," and she heard the doorbell ring. She heard R.J. open the door and heard Dieters ask if he could talk to R.J. R.J. said "[y]eah," and told Dieters he was on the phone with Kayla. The call then ended, and Kayla began walking over to R.J.'s apartment. A short time later, she would arrive to find Dieters crouched on all fours on top of R.J.'s lifeless body on the kitchen floor, with the knife she had given Dieters as a Valentine's Day gift by R.J.'s head. She saw blood, and Dieters said, "I killed him."
According to Dieters' account at trial, R.J. had allowed him into the apartment, which was completely dark, after Dieters had asked to talk. Dieters was unarmed. Dieters turned on the kitchen light with R.J.'s permission, as R.J. remained standing by the front door. R.J. seemed agitated and tense, was staring at Dieters intently, and when Dieters asked if he was scared, said he was ("[Y]eah, don't worry about it"). Dieters felt unwelcome and, knowing R.J. had guns and knives, uncomfortable. He turned and started walking to the front door to leave, and saw that R.J. was holding a knife which caught Dieters off guard. R.J. raised the knife and pointed it at Dieters as if to stab Dieters, and then began running in Dieters' direction, headed towards the nearby bedroom where Dieters knew there was an arsenal of guns and knives. Dieters wanted to stop R.J. from getting to the bedroom and getting a gun, and panicked. He grabbed R.J. by a shoulder, R.J then tried to stab him in the abdomen and they both ended up struggling on the kitchen floor, not far from the bedroom door which was wide open, as R.J. continued to try to stab Dieters while Dieters tried to get hold of the knife. Eventually Dieters managed to grab the knife away, but another knife fell out of R.J.'s pocket onto the floor and R.J. was trying to get up off the kitchen floor to reach the bedroom. Dieters was scared, and thought R.J. was going to kill him if R.J. reached the bedroom and got hold of a gun. He also thought back to R.J.'s joke about being "cocked and loaded" that Dieters hadn't taken seriously before. When R.J. tried to rise from the kitchen floor, Dieters stabbed R.J. in the neck to try to stop him but R.J. continued to try to reach the bedroom, sliding backwards across the floor on his back, so Dieters just kept stabbing until R.J. stopped moving. Then Dieters closed the folding knife and put it on the kitchen counter, saw Kayla just as he was calling 911 and ran out of the apartment. He didn't recall washing off his hands in the kitchen sink or washing the knife he had used. Later, though, he said during a police interview he had washed his hands and one of the knives because he panicked when he saw a lot of blood.
At trial, Dieters testified he had used only one knife in the attack, the one R.J. normally carried, and although he recalled seeing a second knife on the floor during their struggle he couldn't recall ever touching it nor could he recall seeing the curved Valentine's Day knife in R.J.'s apartment that night. He told police, however, that he had used two knives: he said he stabbed R.J.'s throat with the curved Valentine's Day knife which is the knife R.J. had held, and slashed R.J.'s neck with R.J.'s folding knife, which had fallen to the ground and which Dieters folded back up afterwards and placed on the kitchen counter.
In his two 911 calls to police, played for the jury, Dieters was cooperative. He told police dispatch that he had just killed his friend, volunteered that he would wait for police outside unarmed and surrender without resisting, and assured police dispatch he would explain what had happened when police arrived.
Aside from a tiny laceration on his right pinky finger and some minor bruising on his hands, Dieters was unharmed. He received no stab wounds in the encounter, and there was only minor damage to his clothing: his shirt ended up with two holes on the right side, one a half an inch long, and there was a one-inch rip in his jeans just below his right front pocket.
Police responding at the scene found R.J. lifeless and bleeding profusely all over the kitchen floor and saw blood on the kitchen sink and on the edge of the front door. They found a loaded handgun on the bedroom floor, to the rear of R.J.'s body, 10.9 feet from his head. On the kitchen counter was a closed pocketknife belonging to R.J. that he normally carried around; both R.J.'s and Dieters' blood were found on the blade and on the handle. The curved Valentine's Day knife was recovered from the bedroom near a pile of clothing on the floor; R.J.'s blood was on the blade and the handle, and Dieters' DNA was on the handle.
Police investigators found many other weapons in the apartment. In the bedroom were several baseball bats under the bed, rifle cases, several pocketknives and a crossbow, a case containing a knife collection, a replica pistol inside a locked case, a locked gun safe containing a handgun and a locked rifle. Also in the apartment police found a shotgun and two rifles, one of which was a semi-automatic, "Uzi-style" weapon that was possibly illegal. Mounted on the living room wall was a collection of samurai swords, and a knife and sheath were found approximately two feet away from R.J.'s body.
A defense neuropsychologist, Dr. Howard Friedman, diagnosed Dieters as suffering from a major depressive disorder with suicidal thoughts, and testified Dieters was prone more toward directing anger inward at himself than toward others. He concluded Dieters had difficulty making independent decisions, and Dieters' ability to act independently declined the more depressed he became.
The jury found Dieters guilty of voluntary manslaughter (Pen. Code, § 192, subd. (a) ), found true an allegation he had used a deadly and dangerous weapon in the commission of the crime (Pen. Code, § 12022, subd. (b)(1)), and acquitted him of both murder and burglary. He was sentenced to a prison term of seven years. This timely appeal followed.
References to statutes are to the Penal Code.
DISCUSSION
Dieters challenges the jury instructions on five grounds. He argues the jury was erroneously instructed that self-defense as a justification for homicide does not apply to manslaughter but only to murder. Second, he maintains the jury was erroneously instructed that self-defense does not apply unless the defendant used deadly force only in self-defense, thereby foreclosing the right to claim self-defense if the killing was also committed with another motivation (such as anger or jealousy), however slight. He argues the jury was wrongly instructed that a defendant who starts a fight intending to use only non-deadly force may not claim self-defense if the victim reacts with a show of potentially deadly force. Finally, he argues the instruction on mutual combat was unsupported by substantial evidence and also was legally incorrect because it foreclosed a claim of self-defense by a person in a deadly encounter who is the first to use physical force ("starts a fight") even where he acts to defend against a threat of deadly force.
The full text of the self-defense instructions is set out in the appendix to this opinion.
It is unnecessary for us to resolve whether Dieters' failure in the trial court to object to any of the instructions he now challenges on appeal and/or to propose clarifications to them forfeits any of these issues on appeal, or to address his contentions that, if any instructional errors were forfeited, there was ineffective assistance of counsel, because we elect to address each issue on its merits.
I.
Self-Defense As Applied to Voluntary Manslaughter
Dieters argues the instructions were legally wrong because they failed to specify that self-defense is a defense to voluntary manslaughter as well as to murder, and on that basis he urges reversal because he says the error deprived him of his federal constitutional right to present a defense. We disagree.
Dieters' argument is based on a single instruction, read in isolation. That instruction states in relevant part: "505. [¶] The defendant is not guilty of murder if he was justified in killing someone in self-defense. The defendant acted in lawful self-defense if: [¶] 1. The defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury. [¶] 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. [¶] . . . The defendant must have believed there was imminent danger of death or great bodily injury to himself. Defendant's belief must have been reasonable and he must have acted only because of that belief. . . . . [¶] . . . [¶] The People have the burden of proving beyond a reasonable doubt that the killing was not justified. If the People have not met this burden, you must find the defendant not guilty of murder." (Italics added.)
Dieters concedes the jury was advised that self-defense is a complete defense to voluntary manslaughter—twice, in other instructions. An instruction on voluntary manslaughter told the jury, "if you conclude the defendant acted in complete self-defense, his action was lawful and you must find him not guilty of any crime." Dieters concedes this instruction "suggests that complete self-defense is a defense to both murder and manslaughter." A general introductory instruction also told the jury, "A homicide can be lawful or unlawful. If a person kills with a legally valid excuse or justification, the killing is lawful and he or she has not committed a crime." Dieters acknowledges this language too "indicat[es] that self-defense is a complete defense to any of the charged crimes."
Nonetheless, Dieters contends the instructions were in conflict. The reason, he says, is because "the self-defense instruction . . . expressly provides that self-defense is a defense only to murder and not to any other offense at issue in the case." (Italics added.) This mischaracterizes the instruction. The instruction refers to murder and not to manslaughter; but it does not limit self-defense "only to murder and not to any other offense." Thus, it does not conflict with the voluntary manslaughter instruction telling the jury that self-defense does apply to that crime, or with the general homicide instruction telling the jury a homicide is lawful if a person commits it with a valid excuse justification.
Shifting gears, Dieters maintains that "reasonably read by the jurors," the challenged self-defense instruction "was likely interpreted to mean that self-defense was a defense to murder and not to the lesser offense of voluntary manslaughter." (Italics added.) We do not agree with this assertion either. This question should not be resolved by reading the instruction "in isolation," as Dieters urges. The jury was told to consider all instructions together. And even had it not been so instructed, " ' " '[a] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.' " ' " (People v. Adams (2009) 176 Cal.App.4th 946, 953; accord, People v. Young (2005) 34 Cal.4th 1149, 1202 (Young).) " '[W]e must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions' " they receive. (People v. Richardson (2008) 43 Cal.4th 959, 1028.) We also "must consider the arguments of counsel in assessing the probable impact of the instruction on the jury." (Young, at p. 1202.)
In context of the overall charge, it is not likely the jury misunderstood these instructions to foreclose the jury, if it concluded Dieters acted in self-defense, from acquitting him of manslaughter. The manslaughter instruction itself directed the jury to do just that ("[i]f you conclude the defendant acted in complete self-defense, his action was lawful and you must find him not guilty of any crime," italics added.) The parties' closing arguments were entirely consistent with that view. The prosecutor did not direct the jury to that portion of the challenged self-defense instruction referring only to murder; on the contrary, she paraphrased that instruction in a way that implied self-defense pertained to all charges. She did not argue, or in any way imply, that if Dieters acted in lawful self-defense the jury nonetheless could convict him of manslaughter. The crux of the defense closing argument was that this killing was done in self-defense, and defense counsel implied the jury therefore should acquit Dieters of all charges: as defense counsel put it, "Daniel thought [R.J.] was going for a gun. And as he's going there, Daniel tries to stop him, which is lawful." (Italics added.) The prosecutor who argued in rebuttal acknowledged that "[t]he defense theory is that when Mr. Dieters acted, he acted in self-defense." He then went on to argue only that Dieters' theory of self-defense "is not consistent with the evidence, and it's not consistent with common sense." He did not argue it was inconsistent with the instructions. There is no reasonable possibility this jury was misled.
The prosecutor told the jury, "Now, one of the instructions that you'll be getting that you are required to consider is justifiable homicide, self-defense. The defendant acted in lawful self-defense if he reasonably believed that he was in imminent danger of being killed or suffering great bodily injury, believed that the imminent use of deadly force was necessary to defend against the danger and used no more force than was reasonably necessary to defend against that danger." (Italics added.)
II.
Self-Defense Instruction on Fear As Defendant's Sole Motive
Dieters next argues the jury was wrongly instructed that self-defense does not apply unless the defendant killed only because he believed he was in danger. Specifically, he challenges the following portion of CALCRIM No. 505, given here: "The defendant must have believed there was imminent danger of death or great bodily injury to himself. Defendant's belief must have been reasonable and he must have acted only because of that belief." Dieters argues this is an incorrect statement of law because "a homicide based on mixed motives is justifiable so long as reasonable fear was a substantial cause of the decision to kill." In other words, he contends that fear need not be a defendant's sole motive for killing in order for the homicide to be justified in self-defense. Drawing on causation principles mainly from tort law, he argues that exclusivity of cause generally is not required in the law but, rather, the substantial factor test applies. (See Viner v. Sweet (2003) 30 Cal.4th 1232, 1239-1240; People v. Caldwell (1984) 36 Cal.3d 210, 220.) He asks us to adopt that standard in the law of self-defense both as a matter of statutory interpretation and on constitutional grounds. And here, he argues, given some evidence he harbored anger and resentment toward R.J. because of the circumstances with Kayla, "there is a strong likelihood that at least some jurors rejected self-defense on the grounds that a small portion of the emotion that animated Dieters was anger as opposed to fear for his life." We conclude there was no error in the instruction.
The challenged language of CALCRIM No. 505 ("he must have acted only because of that belief") is derived from section 198 which states that, for a homicide to be justified, "the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone" (italics added). This plain language strongly indicates that, for a homicide to be justified, objectively reasonable fear must be a defendant's sole motive for killing. Dieters argues, however, based chiefly on the statutory history of section 198, that the "such fears alone" language of section 198 is intended only to signify that the fears that will justify a homicide are those that meet the "reasonable person" test. The California Supreme Court has rejected that construction. (See People v. Nguyen (2015) 61 Cal.4th 1015, 1046.) And although Nguyen itself left open whether it would be proper to instruct a jury that acting based on mixed motives is permissible as long as reasonable fear is a but-for cause of the decision to kill (see id. at p. 1046), the California Supreme Court previously upheld as a correct statement of the law, in a mixed motive case, self-defense instructions stating that the defendant must act on the basis of reasonable fears "alone." (People v. Adams (1890) 85 Cal. 231, 235 [killing carried out also to effectuate arrest]; see also People v. Trevino (1988) 200 Cal.App.3d 874, 879 [killing carried out also out of hatred]; People v. Shade (1986) 185 Cal.App.3d 711, 716 [rejecting as "meritless" the contention self-defense is available when a defendant acts "out of fear and a desire to harm the attacker"].)
California authority dating back more than a century establishes that self-defense is available only to those who kill solely out of a reasonable fear of great bodily injury or death. (See People v. Park (1882) 62 Cal. 204, 207-208 [self-defense instruction requiring acquittal if defendant acted on the basis of reasonable fears held properly refused, because " 'the party killing must have acted under the influence of such fears alone' "]; People v. Hecker (1895) 109 Cal. 451, 463 [conduct of person acting in self-defense "must not be in revenge" and must be "in good faith, to the sole end of winning his safety and securing his life"]; People v. Levitt (1984) 156 Cal.App.3d 500, 509 ["if the degree of force used was influenced by any motivations aside from a belief in the necessity to act in self-defense then manslaughter was an appropriate verdict" for defendant who killed wife's paramour], disapproved on other grounds in People v. Johnson (2016) 62 Cal.4th 600, 649, fn. 6; People v. Vernon (1925) 71 Cal.App. 628, 629 [upholding modification to requested instruction that limited self-defense to killing under the influence of fear "alone"].)
Even if, against this considerable weight of authority, we were free to decide anew the meaning of "such fears alone" in section 198, the statutory history counsels against a construction that would justify a killing if carried out with mixed motives. The "such fears alone" language was enacted in 1872 when the Penal Code was adopted. (See The Penal Code of California (1872) § 198, p. 56.) According to the California Code Commissioners, whose comments are entitled to substantial weight (People v. Chun (2009) 45 Cal.4th 1172, 1187), section 198 is based upon section 30 of the Crimes and Punishment Act of 1850, California's first penal law (Chun, at p. 1184). That prior statute stated, in relevant part, that "It must appear that the circumstances were sufficient to excite the fears of a reasonable person, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge." (Stats. 1850, ch. 99, § 30, p. 232, italics added.) Dieters argues, and we agree, that the change in wording when section 198 was adopted was not intended to change the law. And yet the prior statute, on its face, plainly stated three elements in the conjunctive: one, the circumstances gave rise to objectively reasonable fears ("It must appear that the circumstances were sufficient to excite the fears of a reasonable person"), two, the defendant was subjectively motivated to kill on the basis of those fears ("and that the party killing really acted under the influence of those fears"), and three, the defendant did not kill with an unlawful motive ("and not in a spirit of revenge"). We do not see how the language of the prior statute is to be read any other way. Since, as Dieters agrees, there was no intended change in the law when section 30 of the 1850 Crimes and Punishment Act was replaced with section 198, it follows that section 30's requirement the defendant did not kill with an unlawful motive was retained. It was newly restated as "acted under the influence of such fears alone."
See Revised Laws of the State of Cal. in Four Codes: Political, Civil, Civil Procedure and Penal (1871) § 198, p. 51 [parenthetical citation to § 30]; id. at p. iv [explanation that parenthetical citations in proposed Penal Code are to the sections of 1850 Crimes and Punishment Act "from which the sections in this code are taken"]; see also Ann. Pen. Code (1st ed. 1872, Haymond & Burch, commrs.-annotators) § 198, p. 88 [parenthetical citation to § 30]; People v. King (1978) 22 Cal.3d 12, 23 [noting section 198's derivation from the 1850 Act].)
In full, it stated: "A bare fear of any of these offences, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable person, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge." (Stats. 1850, ch. 99, § 30, p. 232.)
Absent clear legislative intent to the contrary, we presume that the 1872 codification of California's criminal law did not change prior law (see People v. Ellis (1928) 204 Cal. 39, 44; see also People v. Chun, supra, 45 Cal.4th at p. 1187; Pen. Code, § 5), and we have found no evidence of a contrary intent here.
Dieters proffers a different explanation for the change in wording from "and not in a spirit of revenge," to "acted under the influence of such fears alone." He maintains it was intended only to clarify the objective aspect of self-defense. As he puts it, "The Commissioners apparently felt that the objective requirement [that the defendant's motivating fears be reasonable] was not well stated in the 1850 statute," because its language ("and not in the spirit of revenge") "focused on the defendant's subjective state of mind and which the Commissioners eliminated from section 198." However, the 1850 Act did plainly state the objective requirement of self-defense, and it did so twice: in both the first sentence of section 30 (which said subjective fear alone is not enough) and in the first clause of its second sentence (which said the circumstances must objectively appear to be threatening). (See full text, quoted in note 6, ante.) In addition, Dieters' explanation is illogical. The very fact the Legislature substituted a reference in the 1850 statute to a defendant's subjective motive ("and not in a spirit of revenge") with different language in the Penal Code ("acted under the influence of such fears alone"), with no intended change in meaning, counsels in favor of an interpretation that retains that subjective limitation. Dieters' interpretation would eliminate it.
Dieters also argues section 198 should be construed in accordance with the common law, but cites no common law authority that a homicide is justified if carried out partly in self-defense but also with an improper motive. One criminal law treatise he cites states that a party acting in proper self-defense "does not lose the defense because he acts with some less admirable motive in addition to that of defending himself" (2 LaFave, Substantive Criminal Law (2d ed. 2003) § 10.4(c), pp. 149-150), but the authority it cites does not support the proposition. It stands for the proposition only that a claim of self-defense is viable if the defendant harbors hatred or ill will toward the victim (see Golden v. State (1858) 25 Ga. 527, 532), a principle consistent with California law (see People v. Trevino, supra, 200 Cal.App.3d at p. 879), not that a claim of self-defense is available to a defendant who actually acts on those feelings by killing, at least in part, because of them.
Finally, Dieters maintains that section 198 should be interpreted in accordance with the state and federal constitutional rights to self-defense embodied by article I, section 1 of the California Constitution and the Fourteenth Amendment, so as to "not require[e] absolute purity of motivation." Restricting the right to self-defense "solely to instances where the motive is purely self-defensive and unadulterated by other possible emotions," he says, "unduly restricts" his constitutional right to defend his own life. The potential constitutional dimensions of this issue were not considered in the California authorities we have discussed construing the right to self-defense, and we will briefly address them.
Turning first to California law, Dieters has not shown that our state's constitution compels a construction of section 198 that embodies the right to kill an aggressor in part because of anger, ill will or a desire to do them harm. He relies on People v. McDonnell (1917) 32 Cal.App. 694, for the proposition that it does, but McDonnell suggests the opposite. Construing section 197 of the Penal Code, governing mutual combatants, McDonnell recognized the right of individuals who are attacked without fault to stand their ground and defend themselves, rather than be required to retreat as the literal language of section 197 suggests. The court acknowledged that "within certain limits the legislature may prescribe the conditions under which homicide may be excusable or justifiable." (McDonnell, at p. 704.) However, it reasoned, the Legislature cannot "deprive a person—at least a person who is not a wrongdoer—of the right of self-defense," because "[t]he right to defend life is one of the inalienable rights guaranteed by the constitution of the state." (Ibid., citing Cal. Const., art. 1, §1.) Requiring a person who is attacked without fault to try to withdraw before resorting himself to deadly force, it said, "is to require the very thing that may prevent him from defending himself at all." (McDonnell, at p. 704.) Since that was probably not the Legislature's intent, the court held that giving an instruction based on the statute's literal language was prejudicially erroneous. (See id. at pp. 704-706.) In short, under McDonnell, although the California Constitution forbids the Legislature from completely depriving a fault-free individual of the right to defend themselves, it does not curtail the Legislature's power to constrain the right to self-defense "within certain limits." Nothing in McDonnell suggests the Legislature is constitutionally prohibited from limiting justifiable homicide to situations in which objectively reasonable fear is the sole motive for killing and, conversely, punishing those who kill partly out of animosity or for some other improper purpose.
Dieters has not shown that the federal constitution constrains the Legislature's power to do this either. Under substantive due process jurisprudence, we must carefully describe the liberty interest that is asserted to be fundamental in a concrete and particularized, rather than abstract and general, manner. (See Washington v. Glucksberg (1997) 521 U.S. 702, 720; In re Lira (2014) 58 Cal.4th 573, 585.) Carefully described, we deal here not with an asserted "right to self-defense," as Dieters broadly characterizes it, but rather an asserted right to kill where the decision to use deadly force is motivated in part by animus or other unlawful motive as well as by a desire to defend oneself against a threat of great bodily harm or death. Dieters cites no authority that such a right has ever been recognized, anywhere, even in the common law, much less that it is " 'deeply rooted in this Nation's history and tradition.' " (Washington, at p. 721.) Dieters asks us, as a matter of first impression, to reject an interpretation of a statute that has been part of the Penal Code for more than 150 years, and is an interpretation that has been consistently applied by California courts for nearly as long. Dieters himself cites authority rejecting a federal constitutional challenge to a state-law restriction on the right to claim self-defense. (See Taylor v. Withrow (6th Cir. 2002) 288 F.3d 846, 853 ["no precedent" to conclude that state law limitation on right to claim self-defense where killing was not "pure self-defense" but "a mix of accident and self-defense" is unconstitutional].) As the Sixth Circuit put it, "While a rule that prevented a defendant from claiming self-defense under any circumstances might violate due process, we cannot find that [the state's] formulation of the self-defense rule is unconstitutional." (Ibid.) The same is true here.
This differentiates it from the right to keep and bear arms for self-defense, which is a fundamental interest protected by the Fourteenth Amendment's Due Process Clause. (See McDonald v. City of Chicago (2010) 561 U.S. 742, 767-778.)
III.
The Contrived Self-Defense Instruction
Dieters next argues the trial court erred by instructing the jury under CALCRIM No. 3472 that, "[a] person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force." (Italics added.) Dieters argues the instruction was legally incorrect, because the court did not "either limit its application to the situation where a person provokes a quarrel with the intent to use deadly force, or alternatively include the caveat that even someone who provokes a fight or quarrel as an excuse to use non-deadly force, regains the right to self-defense where the victim responds with an unlawful use of excessive force risking great bodily injury or death" (italics added). The problem, he maintains, is that the instruction "incorrectly permitted the jury to find that [he] had no right to claim self-defense if he initiated the physical altercation with R.J., even though he had no intention of starting a fatal confrontation." And he contends the prosecutor improperly "argued that, even if Dieters had merely sought a fistfight with R.J., his initiation of such physical contact deprived him of any right to self-defense, even if R.J. had responded with deadly force." He says the prosecutor "urged that, even if the jury were to find that Dieters had simply sought to punch R.J. as he had previously indicated to Bozzoli he wanted to do, that act alone resulted in forfeiture of his right to self-defense."
Dieters argues that reversal in these circumstances is compelled by People v. Ramirez (2015) 233 Cal.App.4th 940, which holds that a person who contrives to start a non-deadly fight does not forfeit the right of self-defense if his adversary escalates the confrontation to deadly violence, and reversed a criminal conviction for first degree murder based on the same claim of instructional error as made here. The People contend the instructions were correct, Ramirez was wrongly decided, and that, in any event, any error was harmless.
In Ramirez, two gang members were convicted of murdering a rival gang member during an encounter in which they claimed they were only intending, at best, to get into a fistfight, not to kill, because they were just trying to stop the rival gang from harassing them. (See Ramirez, supra, 233 Cal.App.4th at p. 944.) When a fight broke out between the rival gangs, defendants claimed the victim pulled out a gun and then one defendant shot the victim in self-defense and to protect his companion. (Id. at p. 945.) As in this case, the jury was instructed on contrived self-defense under CALCRIM No. 3472, which the Fourth District held was an incorrect statement of the law, and was "an error the prosecutor compounded by repeated misstatement of the law" in closing argument which, on the facts of that case, prevented the jury from considering the defendants' self-defense claim. (Ramirez, at p. 945.) Over a lengthy dissent, the majority held the instruction was wrong because it effectively misadvised the jury that one who merely provokes a fistfight forfeits the right to self-defense if the adversary resorts to deadly force. (Id. at p. 947; see also id. at pp. 953-959 [dis. opn. of Fybel, J.].)
Further, it held, the prosecution had exacerbated the error. (Ramirez, supra, 233 Cal.App.4th at p. 945.) The prosecutor had acknowledged that the defendants' likely intention was only to engage in a fistfight, and had expressly disavowed any theory that the defendants sought out their victim intending to kill him ("I am not saying expecting and wanting murder. I am saying and expect[ing] and wanting a fight"). The defendants' intent to use only non-lethal force was a central theme of the prosecution, but the prosecutor vigorously argued it did not matter for purposes of vitiating a claim of self-defense. (Id. at p. 946.) The prosecutor highlighted the challenged instruction in closing argument, argued repeatedly that it precluded a claim of self-defense in all possible circumstances, and reiterated the point at length in rebuttal. (Id. at pp. 946-947, 948-949.) And the record in Ramirez showed the prosecutor's remarks did influence the jury in reaching its verdict: the jury circled the challenged instruction on its copy of the instructions. (Id. at p. 947.)
It is unnecessary for us to decide whether CALCRIM No. 3472 incorrectly states the law, as Ramirez held, because any error here was harmless even beyond a reasonable doubt (assuming that standard applies). (See Ramirez, supra, 233 Cal.App.4th at p. 953 [applying Chapman standard].) The concept of contrived self-defense had practically no place, if any, in this trial. The prosecutor urged repeatedly that Dieters went to R.J.'s apartment intending to kill him, and referred just once to the concept of contrived self-defense, very briefly. This occurred after the prosecutor argued at length that Dieters committed premeditated murder, intending actually to kill R.J. that night, when she turned briefly to the subject of self-defense. Walking the jury through the self-defense instructions, she said among other things: "Right to self-defense may not be contrived. A person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force. [¶] The defendant came over there specifically with the intention to kill R.J., to beat him up, hurt him, kill him, that's what he came over there for. He wants you to believe that because R.J. has lots of guns and lots of knives, he now suddenly has the right to use self-defense when you come to his home unannounced, uninvited, at 11:00 at night. You don't get to create your own standard." (Italics added.) Contrary to Dieters' characterization of the record, the prosecutor did not argue that "even if" Dieters merely intended to fight, he forfeited the right of self-defense. Her comments, at most, entailed a single, brief allusion to the possibility that Dieters intended to harm R.J. that, in context of the entire closing argument, was most naturally understood to mean Dieters intended to kill R.J. Moreover, the prosecutor never returned to the subject of contrived self-defense, including in rebuttal.
All of this is quite different from Ramirez. The prosecutor did not tell the jury that self-defense was not available at all if Dieters started the fight, nor was contrived self-defense the central theme of the prosecution. The prosecutor referred to the challenged instruction just once, very briefly, not repeatedly. And there is no evidence the jury focused on this instruction as the jury did in Ramirez.
Second, there is no support in the evidence for a finding of contrived self-defense. Dieters' theory was that he arrived at R.J.'s home that night upset but not angry, just intending to talk, "not looking for a fight"; the People's theory was that he intended to kill. Nobody suggested that Dieters went there that night intending to provoke a fight with R.J., much less that he did so hoping R.J. would escalate the confrontation with a show of potentially deadly force so that Dieters would have an excuse to respond with lethal force. And the jury necessarily found Dieters did not intend to seriously injure R.J. when he arrived at R.J.'s apartment, since it acquitted him on the burglary charge.
The jury was instructed that to find Dieters guilty of burglary, it had to find he entered a building intending to commit an assault with a deadly weapon or by means of force likely to produce great bodily injury.
Finally, the jury could not have been misled by the charge, because the immediately preceding instruction told the jury that a person who starts a non-deadly fight does have a right to self-defense. That instruction (CALCRIM No. 3471) told the jury that "if the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force . . . ." This instruction also was given in Ramirez (Ramirez, supra, 233 Cal.App.4th at p. 946, fn. 1), but as we have explained, the prosecutor's closing argument in Ramirez effectively neutralized that instruction, which did not occur here.
For these reasons, we conclude any error in the instruction was harmless even beyond a reasonable doubt.
IV.
CALCRIM No. 3471
Finally, Dieters challenges the trial court's decision to instruct the jury under CALCRIM No. 3471, which limits the right of a person engaged in mutual combat or who "starts a fight" to claim self-defense. Under that instruction, quoted in the appendix, a person engaged in mutual combat or one who "starts a fight" has no right to self-defense unless they first take specified steps to stop fighting, which Dieters did not do.
Dieters challenges two aspects of the instruction. He argues that the portion of the instruction referring to mutual combatants should not have been given, because there was no substantial evidence he and R.J. were engaged in mutual combat. The reason, he says, is because there was no evidence he either expressly or impliedly agreed to fight with R.J. before R.J. attacked him with a knife. (See People v. Ross (2007) 155 Cal.App.4th 1033, 1049-1054 [mutual combat instruction held unsupported by the evidence].) In addition, he argues that the portion of the instruction referring to "one who starts a fight" is an incorrect statement of law. Taken together, these two claims of error comprise a challenge to the entire instruction. We address each issue in turn.
Dieters does not challenge the definition of mutual combat the jury was given, which required proof that the fatal fight either "began or continued by mutual consent or agreement," and where the agreement was either "expressly stated or implied" and "occur[ed] before the claim to self-defense arose."
A. Mutual Combatants
It unnecessary to address the sufficiency of the evidence of mutual combat, because if there was no factual predicate for instructing the jury concerning mutual combatants, then that aspect of the instruction was superfluous and so, under any standard, the claimed error was harmless. (See People v. Cross (2008) 45 Cal.4th 58, 67-69 (Cross); People v. Crew (2003) 31 Cal.4th 822, 849; People v. Eulian (2016) 247 Cal.App.4th 1324, 1335.) Indeed, the prosecution did not mention this instruction in closing argument or the principle it embodies, requiring a mutual combatant to withdraw in order to claim the right to use self-defense. And the jury was instructed to disregard any instructions it found to be factually inapplicable. (See Cross, at p. 67.) We are convinced that if there was error in giving the instruction it was harmless beyond a reasonable doubt.
Still, we are puzzled by Dieters' contention there was no evidence of mutual combat, because elsewhere in his briefing he says there was. At page 24 of his reply brief, in the context of a different argument, he states the situation was one "where the victim and the defendant . . . are engaged in mutual combat." (Italics added.)
Specifically, it was told that "[s]ome of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them." --------
Dieters argues there was prejudice, however, because "[t]hough the evidence did not support mutual combat as defined by the law, there was evidence from which reasonable jurors could have been misled into believing that the struggle between R.J. and Dieters constituted mutual combat." The reason, he says, is because there was evidence the two engaged in a struggle, even though there was no evidence of any agreement or mutual consent to fight. But, "[a] defendant challenging an instruction as being subject to an erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant." (Cross, supra, 45 Cal.4th at pp. 67-68.) Dieters does not explain why the jury would have understood this instruction to permit it simply to disregard that portion defining the phrase "mutual combat," much less that there was a reasonable likelihood the jury did so. (See People v. Crandell (1988) 46 Cal.3d 833, 872, abrogated on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) "[W]e are confident the jury was not sidetracked by the correct but irrelevant instruction, which did not figure in the closing arguments, and we conclude that the giving of the instruction was harmless error." (Crandell, at pp. 872-873.)
B. The Phrase, "One Who Starts A Fight"
Acknowledging that "there appear to be no published criminal cases on this rather fine point," Dieters argues the language of CALCRIM No. 3471 limiting the right to claim self-defense by one who "starts a fight" is wrong, because it improperly "permit[s] jurors to interpret the instruction as applying to the individual who first makes physical contact with the other as opposed to the actual aggressor." As so construed, he contends, it is an incorrect statement of law because it improperly limits a claim of self-defense by someone who does not initiate aggression but merely strikes the first blow in response to a potentially deadly threat. The error was prejudicial, he contends, because according to the only eyewitness account of the stabbing (that of Dieters), Dieters was the first person to make physical contact in the encounter yet he did so in self-defense, grabbing R.J. as R.J. was attempting to approach him with a knife and stab him. Since Dieters didn't try to withdraw or give R.J. a chance to withdraw, he says, the jury necessarily would have interpreted the instruction as precluding his claim of self-defense.
We agree that if the instruction were reasonably capable of the interpretation Dieters urges then it would be an incorrect statement of law. A person who reasonably fears imminent danger has the immediate right to defend themselves, before the threat materializes into actual physical violence. (See, e.g., People v. Dawson (1948) 88 Cal.App.2d 85, 98 [shooting held justified in self-defense where defendant reasonably feared victim intended to assault him; defendant "was not required or expected to remain in a precarious position until he . . . was assaulted"]; People v. Mercer (1962) 210 Cal.App.2d 153, 156, 161-162 [defendant feared victim was threatening to shoot him].)
But construing this instruction, as we must, in the context of the overall charge and the arguments of counsel (see Young, supra, 34 Cal.4th at p. 1202; People v. Adams, supra, 176 Cal.App.4th at p. 953), it is not reasonably likely the jury misunderstood and misapplied the instruction in the way Dieters suggests. We do not think the phrase "starts a fight," even standing alone, is ambiguous in the way he posits, and susceptible to the construction that it encompasses the defensive use of force. Further, any possible doubts as to its meaning when read in isolation would have been dispelled by the general self-defense instruction, which explained that a defendant who reasonably believed "he was in imminent danger" of death or great bodily injury may use force to "defend" against the danger, and "is not required to retreat" but "is entitled to stand his ground and defend himself or herself." The latter instruction also explained the defendant need only have a reasonable belief he was threatened to act in self-defense, explaining that "[t]he defendant's belief that he was threatened may be reasonable even if he relied on information or perceptions that were not true." So the self-defense instruction made clear that the mere threat of potentially deadly force justifies the use of self-defense, not simply an actual physical attack that is potentially deadly. Finally, that correct interpretation was reinforced by defense counsel, who argued Dieters was entitled to defend himself from "[t]he moment R.J. pulls that knife out." The prosecution never argued a contrary theory, that even if Dieters reasonably felt threatened he could not strike first in self-defense, or suggest that the challenged instruction had this meaning. In these circumstances, it is not reasonably likely the jury would understand the phrase "start a fight" other than in its ordinary lay sense, that is, initiate aggression. It is not reasonably likely the jury misunderstood it to mean the first person to use physical force in order to defend against a credible threat of great bodily harm or death.
V.
Federal Constitutional Rights to Due Process and to Present a Defense
Dieters contends that the erroneous instructions on contrived self-defense and mutual combat violated his federal constitutional rights to due process and to a fair trial. Because we have concluded any error was harmless beyond a reasonable doubt, the contention is unavailing.
DISPOSITION
The judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.
APPENDIX
The jury was instructed in relevant part as follows, with those portions Dieters challenges emphasized in italics:
"500. [¶] Homicide is the killing of one human being by another. Murder is a type of homicide. The defendant is charged with murder.
A homicide can be lawful or unlawful. If a person kills with a legally valid excuse or justification, the killing is lawful and he or she has not committed a crime. If there is no legally valid excuse or justification, the killing is unlawful and, depending on the circumstances, the person is guilty of either murder or manslaughter. You must decide whether the killing in this case was unlawful and, if so, what specific crime was committed. I will now instruct you in more detail on what is a legally permissible excuse or justification for homicide. I will also instruct you on the different types of murder."
"505. [¶] The defendant is not guilty of murder if he was justified in killing someone in self-defense. The defendant acted in lawful self-defense if: [¶] 1. The defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury. [¶] 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. [¶] . . . . The defendant must have believed there was imminent danger of death or great bodily injury to himself. Defendant's belief must have been reasonable and he must have acted only because of that belief. . . . . [¶] . . . [¶] The People have the burden of proving beyond a reasonable doubt that the killing was not justified. If the People have not met this burden, you must find the defendant not guilty of murder."
"3471. [¶] A person who engages in mutual combat or who starts a fight has a right to self-defense only if: [¶] 1. He actually and in good faith tried to stop fighting; [¶] 2. He indicated, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wanted to stop fighting and that he had stopped fighting; [¶] AND [¶] 3. He gave his opponent a chance to stop fighting. [¶] If the defendant meets these requirements, he then had a right to self-defense if the opponent continued to fight. [¶] However, if the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting. [¶] A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose."
"3472. [¶] A person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force." (Italics added.)
"3474. [¶] The right to self-defense continues only as long as the danger exists or reasonably appears to exist. When the attacker withdraws or no longer appears capable of inflicting any injury, then the right to use force ends."
The instructions then continued by setting forth the elements of murder and first degree murder, and setting forth a general instruction on provocation. Next were two instructions on voluntary manslaughter. One told the jury that "[a] killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion," and defined those concepts. The other concerned imperfect self-defense, stating in pertinent part: "571. [¶] A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense. [¶] If you conclude the defendant acted in complete self-defense, his action was lawful and you must find him not guilty of any crime. The difference between complete self-defense and imperfect self-defense depends on whether the defendant's belief in the need to use deadly force was reasonable. [¶] The defendant acted in imperfect self-defense if: [¶] 1. The defendant actually believed that he was in imminent danger of being killed or suffering great bodily injury; [¶] AND [¶] 2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; [¶] BUT [¶] 3. At least one of those beliefs was unreasonable. [¶] . . . [¶] Imperfect self-defense does not apply when the defendant, through his own wrongful conduct, has created the circumstances that justify his adversary's use of force."