Opinion
F072436
06-30-2017
THE PEOPLE, Plaintiff and Respondent, v. PETER YANG, Defendant and Appellant.
Jonathan E. Berger, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Amanda D. Cary, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Fresno Super. Ct. No. F14905526)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge. Jonathan E. Berger, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Amanda D. Cary, for Plaintiff and Respondent.
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INTRODUCTION
Defendant shot and killed his father, Foung Yang (Foung), near the doorway of defendant's apartment. In his subsequent interrogation, defendant did not say that Foung had molested him as a child, had molested defendant's children, or had threatened to kill defendant earlier that day. However, defendant did make those claims in his testimony at trial. Nonetheless, he was convicted of first degree murder.
We refer to Foung by his first name to avoid confusion, since he shared a last name with defendant; no disrespect is intended.
On appeal, defendant argues the court erred by (1) failing to instruct the jury on heat of passion theory of manslaughter; and (2) by instructing the jury that self-defense only applied if, inter alia, defendant "used no more force than was reasonably necessary to defend against that danger."
We reject both contentions and affirm the judgment.
BACKGROUND
On June 10, 2014, defendant was charged with the murder of Foung. (Pen. Code, § 187, subd. (a).) It was also alleged that defendant personally and intentionally discharged a firearm, proximately causing the death of Foung. (§ 12022.53, subd. (d).)
All further statutory references are to the Penal Code unless otherwise stated.
On August 25, 2015, the jury convicted defendant of first degree murder and found the firearm allegation "proven." The court sentenced defendant to two consecutive prison terms of 25 years to life.
FACTS
At around 6:30 p.m. on June 6, 2014, Janice Mays was in her living room in the Torrey Ridge apartment complex ("Torrey Ridge") when she heard "at least" five gunshots. She did not hear any arguing, yelling or other disturbances before the gunshots.
At the same time, Eric Lucero was standing in the front yard of his home just south of the Torrey Ridge when he heard two or three "pops." Lucero did not hear shouting or arguing before the gunshots.
Crystal Colgan lived in an apartment in Torrey Ridge. At 6:30 p.m., Colgan heard "pounding" and thought the next door neighbors were partying. Colgan had not heard any shouting before the pounding noises began. It sounded like the pounding noise was coming from next door, in the direction of apartment 117. After hearing a "third pounding," Colgan ran outside. She saw a man lying on his back with blood coming down his face and all over his shirt. Colgan ran back inside and called 911. While on the phone with the dispatcher, Colgan heard the man stop breathing. The dispatcher told her to turn the man over onto his stomach. When she did so, Colgan saw a gunshot wound through the man's back.
Apartment 117 was two doors down from Colgan's apartment.
Officer Jonathan Long responded to the scene at "probably about" 6:27 or 6:28 p.m. The victim had multiple gunshot wounds to his face, had no pulse, and was not breathing. Long and fire department personnel rendered aid to the victim. A bystander said "there was a man inside 117 on the second floor and he kept repeating he was unarmed with children." Long had the bystanders and fire department personnel leave the area as he approached apartment 117. Long observed bullet holes in the front door of apartment 117, so he took cover and called for backup. As police officers prepared to make P.A. announcements to the person in the apartment, defendant exited the front door. Long handcuffed him and placed him in the back of a patrol vehicle. Long noted defendant's height to be approximately 5 feet 8 inches, and his weight to be approximately 190 pounds.
Physical Evidence at the Scene
A bag of fruit was found near the victim's body. Eight expended shell casings were recovered from the scene. A nine-millimeter Glock 19 handgun loaded with eight live rounds, and a box of nine-millimeter handgun ammunition were found inside defendant's apartment. The cartridges loaded in the Glock were stamped, "Hornady nine millimeter Luger." The eight shell casings found at the scene were stamped with the same brand and caliber. Subsequent ballistics testing indicated that the eight shell casings had been fired from the nine-millimeter Glock found in defendant's apartment. Subsequent print analysis indicated that defendant's palm print was on the Glock.
An ammo box with factory ammunition of various calibers, gun cleaning patches, and a firearm case with a shotgun inside were also located in the apartment. Pill bottles for Tramadol, Cyclobenzaprine, Nortriptyline, hydrocodone, ibuprofen (600 mg), Fenofibrate, Simvastatin, Gemfibrozil, and Loratadine were found in the apartment bearing defendant's name.
A forensic pathologist testified to the uses of several of these medications. Tramadol is a pain medication; Cyclobenzaprine is a muscle relaxant; Nortriptyline is primarily an antidepressant, but can also be used for bed wetting or Attention Deficit Disorder; hydrocodone is a pain medication; Gabapentin has a number of different uses including treatment of peripheral nerve issues; ibuprofen is a general pain reliever and anti-inflammatory; Simvastatin and Gemfibrozil are used to lower cholesterol; and Loratadine is an antihistamine. The forensic pathologist was not familiar with Fenofibrate.
A closet in the eastern bedroom of the apartment contained "various implements" that are "probably used for smoking opium."
Toxicology
Defendant's blood tested positive for methamphetamine at a level of 0.12 milligrams per liter. According to the forensic toxicologist who testified at trial, the therapeutic range of methamphetamine is 0.01 and 0.05 milligrams per liter. The "potentially toxic range" of methamphetamine "begins at 0.2 milligrams per liter and can go up as high as five milligrams per liter." If defendant was a habitual user, the forensic toxicologist would not expect to see outward symptoms of methamphetamine use at the level of 0.12 milligrams per liter. But, if defendant was a first-time user, he might act stimulated.
Foung's blood and urine were also tested. The samples tested negative for alcohol, but positive for "very low" levels of morphine and codeine. If a person were to smoke opium, their bloodstream would contain morphine and codeine because morphine breaks down into codeine. Someone who consumed opiates would act lethargic or exhibit "kind of relaxed type of behaviors."
Autopsy
An autopsy was performed on Foung's body. Foung was approximately 64 inches tall and weighed approximately 166 pounds.
Bullet Wounds
Foung's body had six bullet entrance wounds. Three bullets were recovered in the victim's body: in the jaw area, right shoulder, and near the sternum.
The bullet that caused a front right shoulder wound traveled through the ribcage on the front right shoulder, through the right lung, aorta, left lung, back of the left chest cavity and exited the left back area. The wound direction was right to left, and slightly downward.
The bullet that caused a lower back wound traveled through the muscles of the back, struck the pelvic bone, entered the abdomen, hit a spine-stabilizing muscle, went through the small and large intestines before exiting the right front of the abdominal wall. The "wound direction" was back to front, and upward.
The bullet that caused a wound to the top of Foung's right shoulder fractured his clavicle and stayed on top of the shoulder near the inner clavicle. The "wound direction" was horizontal, right to left.
Foung also sustained an entrance wound on the left cheek below the eye and an exit wound at the right front of the jaw. The injury was consistent with a gunman holding a gun straight out, and the victim facing the gunman leaning forward and down.
Foung sustained another bullet entrance wound on the right side of the lower lip. A portion of the bullet jacket remained inside the wound. The bullet traveled through the mandible from right to left in a downward fashion.
Foung also sustained a bullet wound to the lower neck. The bullet entered at the midline of the lower neck, traveled downward behind the front chest plate and lodged on the backside of the sternum.
The forensic pathologist opined that the cause of death was injuries to the aorta, lungs and intestines as a result of multiple gunshot wounds.
Powder Tattooing
The forensic pathologist testified that when a bullet is discharged from a gun, elements inside the barrel of the gun exit in a "cloud type of distribution" and can deposit burned and unburned gun powder on skin. This phenomenon, called powder tattooing, "is frequently present in any handgun firing less than 24 inches away from the skin['s] surface."
Powder tattooing was observed on the gunshot wounds to the "front" of Foung's right shoulder and the "top" of the right shoulder. Powder tattooing was also seen on Foung's right hand even though there was no bullet wound there. No powder tattooing was observed at the gunshot wound to the lower back.
Defendant's Interrogation
Detective Rafael Raymond Villalvazo interrogated defendant on June 7, 2014 at 1:41 a.m.
An audio recording of the interrogation was played for the jury. Though the court told the jury that the transcript was not evidence, the court also clarified that the transcript would "take[] the place of the court reporter's transcription." Both parties cite the transcript in their appellate briefs and neither party had the audio of the interrogation transmitted to this court. (See Cal. Rules of Court, rule 8.224(a).) Consequently, we will rely on the transcript.
Defendant had been living in his apartment for 10 months. His father, Foung, also lived at the apartment "on and off." Defendant said he and his father "get along real good" but "sometimes" get in to "little arguments." Detective Villalvazo asked if Foung was strict with defendant. Defendant replied, "I wouldn't say strict, but like, just try [sic] to be helpful, you know a lot, but it's just - this time, he got a little - I got a little out of control, he got out of control, I probably, you know."
Defendant had been out of work for two years and stayed home with his two children. Defendant and Foung would argue about defendant trying to get a job. Defendant would point out to him that if he got a job, no one would babysit his children. Detective Villalvazo then said, "So he was ... on you about working?" Defendant replied, "Yeah, but this time, he was just a little rough ...." When asked how Foung was being "rough," defendant clarified Foung was "not physical," but his words were rough and defendant "was a little scared." Foung had never attacked defendant in the past.
Defendant said he and Foung had been having an argument in the living room of the apartment around 1:00 or 1:30 p.m. that day. Foung left to take defendant's wife to work. When Foung left, defendant unlocked a safe containing a nine-millimeter Glock 19 he owned, loaded the gun, and placed the gun in his sweater. He did so "just to be a little safe" and also his "mind wasn't right." When Foung returned, defendant planned to tell Foung to "relax." But defendant opened the door and Foung had a "rough look." Defendant said Foung also "had a bag, so, I didn't know what he was going to do. So I - like I say, I panicked." Later, defendant added that Foung's "hand was coming just straight towards me." That's when defendant "stepped back" and shot Foung "a few times" with the nine-millimeter Glock 19. "And he turned around. At that time, I was just so - so, I don't know, I wasn't even in my right mind." Defendant then ran upstairs.
According to defendant, he and his "wife" were not legally married, but were married "according to [defendant's] culture." However, both parties refer to this woman as defendant's "wife" and we will do the same.
When Detective Villalvazo pointed out that Foung had never attacked in the past, defendant again said "my mind wasn't right." Villalvazo asked, "[W]hat was it that set you off?" Defendant replied, "I don't know. Like I said, two years, now, I've been stressing on it." Later, Villalvazo asked, "So why would you think he would attack you this time?"
"[Defendant]: It's just like I said, throughout this whole two years, it's just
"[Detective Villalvazo]: Building up?
"[Defendant]: Yeah."
Defendant said he overreacted, that he did not want Foung to die, and that Foung did not deserve what happened to him.
Defendant said he took what he thinks was a "meth pill or something" a "couple days" prior to the shooting.
Defendant's Trial Testimony
Defendant testified at trial.
Familial History
Defendant's mother was initially married to Foung's older brother. Foung's older brother died and, in defendant's culture, a younger brother will marry his older brother's widow. Therefore, Foung married defendant's mother. Foung said defendant and his siblings were "nothing to him"; and that he "just had to fill in his brother's place in having kids for his brother."
Foung molested defendant when he was a child by fondling his penis and "us[ing] his mouth on [defendant's] penis." Defendant never told anyone because he was "raised to be silent." When defendant "got older," the molestation stopped.
Foung would also "beat" defendant's four brothers. Foung would also hit defendant "once in a while" but not as much as his brothers.
Prior Living Arrangements
Prior to renting the apartment at Torrey Ridge, defendant lived on Grant Avenue with his brother, wife, two children and Foung. Foung lived with defendant and his family full time. Foung would come to the Grant Avenue residence to use drugs, to steal defendant's son's food, and to ask for money. According to defendant, Foung maintained "an opium den in his bathroom."
Defendant testified that Foung molested his children while living on Grant Avenue. When asked what made him suspect Foung was molesting his children, defendant testified:
"My father would eat a lot of ice cream and give my kids ice cream. I would see - I - I would brush it off as ice cream, when I first suspected anything. Before I suspected any of the ice cream stains on the hair, ice cream stains on their clothes, but this one time I guess my father then wiped his sperm good enough I could smell it in their hair, a Clorox Bleach smell on my [sons'] hair, not fully wiped, because he probably forgot to wipe it all like how he used to do."!
While living at the Grant Avenue residence, defendant saw his two children in Foung's bathroom with erections. Defendant confronted Foung and told him to stop molesting his children. Foung grinned and said if defendant told anyone, Foung would kill him.
Living Arrangements at Torrey Ridge Apartments
In June 2014, defendant had been living at Torrey Ridge Apartments with his wife and two children for almost a year. Foung would come to the apartment once in a while and sleep over, but he was not living there. Defendant did not know where Foung lived; he appeared to be homeless. Foung would smoke opium in the apartment. Foung and defendant got into an altercation while Foung was living there.
Defendant had had a back injury for "a long time" and was taking hydrocodone, Tramadol and ibuprofen, which he got from a doctor. As a result of the injury, he was not working at the time of the shooting. Defendant was on "welfare" and his wife worked full time at a nursing home. Foung would ask for defendant's EBT card and defendant would give it to him because he was scared. Defendant watched his kids while his wife worked. Foung would give defendant "meth," which he would use so he could watch his children longer.
Molestation Incidents
Defendant tried to have a good relationship with Foung, but "it did not go well" because Foung used drugs and had molested his children. Most recently, around Christmastime, defendant saw his sons naked on Foung's bed eating ice cream while Foung was in the closet masturbating. Also around Christmas, defendant was sleeping in the living room when he heard his son yelling for him. Defendant went upstairs and saw Foung with an erection holding his naked son down. Defendant told Foung to stop and Foung grinned. Defendant did not tell his wife about what had happened because he "did not want to hurt her."
It is not entirely clear from the testimony whether these are separate incidents or a single incident.
Day of the Shooting
Defendant was up on the morning of June 6, 2014, because Foung would "keep giving me some meth." Defendant was in his room, while his children were eating breakfast downstairs. Foung came into defendant's room and asked for $100. A few days prior, Foung had put up a rifle as collateral to get $100 to buy drugs. Now Foung wanted $100 to get the rifle back. Defendant said he did not have $100, and Foung "got real mad." The look in Foung's eyes led defendant to believe he was going to be attacked. Defendant ran out of the room and went to go watch his children. Foung stayed in his room.
But defendant later testified that he was not feeling the effects of methamphetamine that day and that he had not used methamphetamine for two days. Later still, defendant said he was feeling the effects of methamphetamine when he shot Foung and during his interrogation.
Later, Foung left the apartment and returned to take defendant's wife to work, as he typically did. Foung was silent before leaving to take defendant's wife to work. While Foung was gone, defendant watched television with his children. Foung returned and went to his room. Defendant said he "went up to [Foung's] room to talk to him about our issues that we were having about him taking my kids' food to trade for drugs, about him asking for money all the time, about him molesting my kids. I told him I had enough. I was going to tell my family." Foung responded "viciously" and "violently." Defendant and Foung struggled and wrestled. Foung did not hit defendant. During the struggle, Foung said he wanted to kill defendant. Defendant was able to get away. Foung left and said he was going to kill defendant and his family. Defendant believed Foung, but did not call police or his wife because he was scared. While Foung was gone, defendant unlocked his Glock 19, loaded it, and put it in his sweater.
Defendant said he is 5 feet 6 inches or 5 feet 7 inches and in June 2014 weighed 170 pounds. Defendant testified Foung was the same height, but believed Foung was "heavier" than he was.
Defendant testified he purchased the gun in 2014 after someone had tried to break in to the apartment. On cross-examination, defendant conceded that he had bought the gun a couple months before shooting Foung for $700, even though money was tight. On redirect, defendant was asked where he got the money and he replied, "At that time my wife had done taxes and at that time my dad was in Laos. He needed to send some money home. He sent it to me, so I could give it back to him when he comes back home."
After about 30 minutes, Foung returned and knocked on the door loudly. Defendant wanted to talk with Foung, but when he opened the door and Foung "came in in a rough way." Foung "came at" defendant "with his right hand." Defendant did not see any weapon on Foung. Defendant thought Foung was going to attack, so defendant shot him from two feet away. When defendant fired the first shot, he was thinking of Foung attacking him. When defendant fired the second and third shots, he was thinking about his sons. When defendant fired the fourth shot he pictured sperm on his son's hair and his sons' erect penises. Defendant did not remember how many times he fired in total, but he eventually stopped firing because he "was in shock at that time."
Defendant testified he did not want to kill Foung, but when defendant looked at him lying on the ground, he felt safe and felt that his kids were safe. He also felt "horrified" and "in shock." Defendant saw his pocketknife - which had been missing - on the ground in the doorway. Defendant picked up the knife and put it on a shelf.
Defendant said he did not tell Detective Villalvazo that Foung had threatened to kill him and his family because he was paranoid from the "meth" and "because of my father." Defendant did not tell detectives about the molestation of his children because he was paranoid and scared because of Foung's threats. Defendant acknowledged he knew Foung was dead at that point, but insisted he was still scared of him.
Defendant claimed Foung had been using drugs around the time of the shooting.
DISCUSSION
I. Any Error in Failing to Instruct on the Heat of Passion Theory of Voluntary Manslaughter is Harmless
Defendant claims the trial court erred in failing to instruct the jury on the heat of passion theory of manslaughter. We conclude that any error was harmless. As a result, "We need not decide whether the trial court was required to instruct on heat-of-passion voluntary manslaughter ...." (People v. Demetrulias (2006) 39 Cal.4th 1, 24-25; accord, People v. Lewis (2001) 25 Cal.4th 610, 646; People v. Peau (2015) 236 Cal.App.4th 823, 830 (Peau).)
A. Law
"The mens rea element required for murder is a state of mind constituting either express or implied malice. A person who kills without malice does not commit murder. Heat of passion is a mental state that precludes the formation of malice and reduces an unlawful killing from murder to manslaughter. Heat of passion arises if, ' "at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment." ' [Citation.] Heat of passion, then, is a state of mind caused by legally sufficient provocation that causes a person to act, not out of rational thought but out of unconsidered reaction to the provocation." (People v. Beltran (2013) 56 Cal.4th 935, 942, fn. omitted.)
"[W]hen the evidence suggests that the defendant acted in the heat of passion upon adequate provocation, the trial court must instruct on voluntary manslaughter. [Citation.]" (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1703-1704.)
"Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions. [Citation.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1085-1086.) Harmlessness must be shown beyond a reasonable doubt. (See People v. Thomas (2013) 218 Cal.App.4th 630, 641-644.)
B. Background
Defense counsel requested that the court instruct the jury with CALCRIM No. 570, which describes heat of passion. The court declined defendant's request, because defendant "decided to arm himself, and he decided to prepare for his father's return. He's no longer acting under any heat of passion. At that point if he's got any defense that gets to voluntary, it's imperfect self-defense."
The court did instruct the jury on premeditation and deliberation. Specifically, the court instructed the jury that "defendant is guilty of first degree murder if the People have proven that he acted willfully, deliberately and with premeditation." The jury was further instructed that "[t]he defendant acted deliberately if he carefully weighed the considerations for and against his choice, and knowing the consequences, decided to kill."
C. Analysis
The jury ultimately convicted defendant of first degree murder. Therefore, all a heat of passion instruction would have done is tender an issue to the jury that was already effectively tendered by the instructions the jury received on premeditation and deliberation. In other words, when the jurors concluded defendant committed first degree murder - which required that defendant have "carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill," - they effectively addressed whether defendant had acted in the heat of passion.
Defendant points to People v. Berry (1976) 18 Cal.3d 509, where the Supreme Court held:
"While the instructions made passing reference to heat of passion and provocation for the purpose of distinguishing between murder of the first and second degrees, such reference was only casually made. There was no clear direction to the jury to consider the evidence of Rachel's course of provocatory conduct so as to determine whether defendant, as an ordinary man of average disposition [citation] having been exposed to such conduct, was provoked into committing the homicide under a heat of passion. Therefore we conclude that the jury's determination that defendant was guilty of murder of the first degree under the instructions given did not necessarily indicate that 'the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions' [citation] ...." (Id. at p. 518.)
However, as the Attorney General points out, more recent Supreme Court authority supports our conclusion that if the instructional omission was error, it was harmless. In People v. Wharton (1991) 53 Cal.3d 522 (Wharton), the court held:
"By finding defendant was guilty of first degree murder, the jury necessarily found defendant premeditated and deliberated the killing. This state of mind, involving planning and deliberate action, is manifestly inconsistent with having acted under the heat of passion ...." (Id. at p. 572; see also Peau, supra, 236 Cal.App.4th at pp. 831-832.)
We agree with the First District that Wharton is controlling in the circumstances presented here. (See Peau, supra, 236 Cal.App.4th at pp. 831-832.) In Peau, the First District noted that it appears "the sole issue considered in Berry was whether the error was harmless because the jury received some instruction on the concepts of heat of passion and provocation, not whether the error was harmless because the jury found the murder was willful, deliberate and premeditated and such a finding was inconsistent with a finding that the defendant acted in a heat of passion." (Ibid.)
Because the jury in this case necessarily concluded defendant " 'carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill[]' [w]e agree that such a finding 'is manifestly inconsistent with having acted under the heat of passion.' [Citation.]" (Peau, supra, 236 Cal.App.4th at p. 831.) Even if the instructional omission constituted error, it was "was harmless beyond a reasonable doubt because the jury found that [the] murder was willful, deliberate, and premeditated." (Id. at p. 832.) II. Defendant's Contention Concerning the Trial Court's Self-Defense Instruction is Meritless
Defendant argues that CALCRIM No. 505 contains an erroneous statement of law.
The court instructed the jury on self-defense as follows:
"The defendant is not guilty of murder or manslaughter if he was justified in killing someone in self-defense or defense of others. The defendant acted in lawful self-defense or defense of others if:
"1. The defendant reasonably believed that he or another person was in imminent danger of suffering bodily injury;
"2. The defendant reasonably believed that the immediate use of 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."
Defendant takes issue with the third element, arguing that it "simply makes no sense" in the homicide context. Specifically, defendant argues that "[d]eadly force is already the maximum amount of force that an individual can use to defend himself; there is no principled basis for parsing it into degrees."
Defendant misunderstands what the third element of CALCRIM No. 505 does. The third element is not meant to distinguish between gradations of lethal force, but instead to distinguish between lethal and nonlethal force (and to distinguish gradations of nonlethal force in non-homicide cases).
Defendant acknowledges cases like People v. Pinholster (1992) 1 Cal.4th 865, where the Supreme Court observed that "any right of self-defense is limited to the use of such force as is reasonable under the circumstances. [Citation.]" (Id. at p. 966, disapproved on another point in People v. Williams (2010) 49 Cal.4th 405, 459.) However, he argues the issue in Pinholster was "not whether the defendant, although justified in using some deadly force, used too much of it; the issue was whether deadly force was justified at all." But that is also the issue addressed by the third element of CALCRIM No. 505: whether deadly force was justified at all. If deadly force was used even though it was not reasonably necessary to do so (i.e., nonlethal force would have sufficed), then deadly force is not justified. CALCRIM No. 505 is not erroneous for restricting the availability of self-defense on that basis.
Defendant acknowledges that if one can repel an attack without deadly force, then he or she may not use deadly force in self-defense. However, he contends that "point is made completely adequately by the second numbered paragraph of CALCRIM No. 505, which provides that a defendant charged with homicide who asserts self-defense must have " 'reasonably believed that the immediate use of deadly force was necessary to defend against' the danger of being killed or suffering great bodily injury." But the court did not instruct the jury in that fashion, instead it referred only to "immediate use of force," not "immediate use of deadly force." (Italics added.) Thus, the second element of the court's instruction told the jury to determine whether the defendant reasonably believed that immediate force (of any type) was necessary to defend against danger. In contrast, the third element effectively asked the jury: Even if defendant reasonably believed immediate force was necessary to defend against danger, was the amount of force ultimately used "no more than" that which was necessary to defend against danger? When a defendant reasonably believes that immediate nonlethal force is necessary and sufficient to defend against the danger, but nonetheless uses lethal force, the second element of the court's instruction would be satisfied but the third would not. The two elements are not the same.
Defendant focuses on the Supreme Court's quotation in People v. Humphrey (1996) 13 Cal.4th 1073 that " '[d]etached reflection cannot be demanded in the presence of an uplifted knife.' [Citation.]" (Id. at p. 1094.) But that refers to a defendant's conclusion as to the necessity of force at all, not the amount of force. (Id. at pp. 1093- 1094.) Even defendant argues that Humphrey "says nothing about the amount of force that may be used by a person who reasonably perceives that he is in imminent lethal danger." This is made clear in Humphrey's very next sentence: " 'In defending himself, however, a person may use only that force which is necessary in view of the nature of the attack .... [Citation.]' [Citation.]" (Id. at p. 1094.)
The same cannot necessarily be said of the language's original use in Brown v. United States (1921) 256 U.S. 335, 343. The U.S. Supreme Court held that "in this Court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him. [Citation.]" (Id. at p. 343, italics added.) Whatever impact the Brown case has on principles of self-defense, that impact is limited to federal criminal law.
For these reasons, we reject defendant's contention concerning the court's self-defense instruction.
DISPOSITION
The judgment is affirmed.
/s/_________
POOCHIGIAN, Acting P.J. WE CONCUR: /s/_________
PENA, J. /s/_________
SMITH, J.