Christian S., In re

• Decision Date: 16 May 1994
• Docket Number: No. S030310,S030310
• Citation: 30 Cal.Rptr.2d 33,7 Cal.4th 768,872 P.2d 574
• Court: California Supreme Court
• Parties: , 872 P.2d 574 In re CHRISTIAN S., a person coming under the juvenile court law. The PEOPLE, Plaintiff and Respondent, v. CHRISTIAN S., Defendant and Appellant.

Page 33

30 Cal.Rptr.2d 33

7 Cal.4th 768, 872 P.2d 574

In re CHRISTIAN S., a person coming under the juvenile court law.

The PEOPLE, Plaintiff and Respondent, v. CHRISTIAN S., Defendant and Appellant.

No. S030310.

Supreme Court of California,

In Bank.

May 16, 1994.

Rehearing Denied Aug. 11, 1994.

Review Denied Aug. 11, 1994.

[872 P.2d 575] Stephen Gilbert, under appointment by the Supreme Court, Santa Monica, for defendant and appellant

Fern M. Laethem, State Public Defender, Philip M. Brooks, Deputy State Public Defender, Ronald Y. Butler, Public Defender, Orange, Carl C. Holmes, Chief Deputy Public Defender, Deborah Ann Kwast, Asst. Public Defender, Thomas Havlena and Marri Derby, Deputy Public Defenders, Jeff Brown, Public Defender, San Francisco, Michael Willemson, Michael Satris, Kat Kozik, John T. Philipsborn, Kent S. Scheidegger, Veronica L. Gray, Jennifer L. Keller, Kristin A. Erickson and Andrea Taylor Gee and Gary M. Mandinach as amici curiae on behalf of defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Asst. Atty. Gen., Pat Zaharopoulos, Garrett Beaumont, Louis R. Hanoian and Keith I. Motley, Deputy Attys. Gen., for plaintiff and respondent.

John J. Meehan, Dist. Atty., Alameda, Thomas J. Orloff, Chief Asst. Dist. Atty., William M. Baldwin, Asst. Dist. Atty., and Jeff Rubin, Deputy Dist. Atty., as amici curiae on behalf of plaintiff and respondent.

BAXTER, Justice.

Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter. The question is whether the Legislature abrogated this doctrine in 1981 by amending the Penal Code to eliminate the diminished capacity defense. We hold the doctrine of imperfect self-defense was not abolished.

The 1981 amendments to Penal Code sections 28, 29, and 188 do not manifest the Legislature's intention to mandate a murder conviction for a person who actually but unreasonably believes he must use lethal force to defend himself against imminent death or great bodily injury. Those amendments were a direct response to the public outcry against the diminished capacity defense successfully used in the infamous trial of a San Francisco City and County supervisor who had killed the city's mayor and another supervisor. That case raised no question of self-defense. Nothing in the language, history, or context of the amendments compels the conclusion that the Legislature intended to abrogate the well-established doctrine of imperfect self-defense--a doctrine that differs significantly from the doctrine of diminished capacity.

FACTS

Christian S., a minor, seeks review of a judgment making him a ward of the juvenile court after sustaining a petition (Welf. & Inst.Code § 602) charging him with the second degree murder of Robert Elliott (Elliott). Because we shall determine only a question of law and remand for further proceedings, extended factual recitation is unnecessary.

Briefly stated, the evidence shows that Elliott was a so-called skinhead and a possible gang member. After being physically and verbally harassed and threatened by Elliott's friends for about a year, Christian (hereafter, defendant) began to carry a handgun. Elliott, who blamed defendant for damaging Elliott's truck, chased defendant down the beach one day, repeatedly threatening "to get him" and challenging him to fire his weapon. Elliott halted his advance each time defendant pointed his gun at Elliott. Finally, after some additional taunting by Elliott, defendant shot and killed Elliott from a range of at least 20 feet.

Challenging the ensuing murder charge, defendant raised claims of self-defense (Pen.Code, § 197) and heat of passion or provocation (Pen.Code, § 192, subd. (a)), and contended the doctrine of imperfect self-defense negated malice, thereby reducing his offense to voluntary manslaughter. The trial court rejected all the defenses, concluding defendant had committed a killing that, if committed The Court of Appeal reversed. It ruled that the record "unequivocally established" that when defendant fired the gun, he feared that Elliott was about to "seriously" harm him. The court also interpreted the record as reflecting that the trial court had found that defendant had acted with an "honest belief" in the need to defend himself. The Court of Appeal held the Legislature had not abrogated the doctrine of imperfect self-defense and that, applying the doctrine, defendant's state of mind--that is, his honest belief--negated any finding that defendant acted with malice. In light of its decision, the Court of Appeal did not reach defendant's additional claims on appeal, namely, whether the trial court erred (1) in finding inadequate provocation to support a "heat of passion" defense that would reduce the offense to voluntary manslaughter (Pen.Code, § 192, subd. (a)), and (2) in refusing to allow expert testimony regarding the so-called fight-or-flight syndrome.

[872 P.2d 576] by an adult, would have constituted second degree murder. The court made no formal findings at the time of its ruling, but it implicitly found inadequate provocation or heat of passion for a voluntary manslaughter finding. And, although the court also rejected the claims of self-defense and imperfect self-defense, we cannot determine from the record whether the court rejected imperfect self-defense on the ground that the doctrine was no longer a tenable legal doctrine in any case or on the fact-based ground that defendant had no actual belief in the need for self-defense so that the doctrine did not apply in this case.

DISCUSSION

1. Status of imperfect self-defense and diminished capacity doctrines in 1981

"Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." (Pen.Code, § 187, subd. (a), italics added.) By contrast, "Manslaughter is the unlawful killing of a human being without malice." (Pen.Code, § 192, italics added.) "The vice is the element of malice; in its absence the level of guilt must decline." (People v. Flannel (1979) 25 Cal.3d 668, 680, 160 Cal.Rptr. 84, 603 P.2d 1 [Flannel].) The doctrines of imperfect self-defense and diminished capacity arose from this principle.

We explained imperfect self-defense in Flannel, supra, 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1. "It is the honest belief of imminent peril that negates malice in a case of complete self-defense; the reasonableness of the belief simply goes to the justification for the killing." (Id., at p. 679, 160 Cal.Rptr. 84, 603 P.2d 1.) We concluded that "An honest but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury negates malice aforethought, the mental element necessary for murder, so that the chargeable offense is reduced to manslaughter." (Id., at p. 674, 160 Cal.Rptr. 84, 603 P.2d 1, some italics omitted.) (Although Flannel and other opinions referred to an "honest belief" we shall use the more precise term "actual belief " because it avoids the confusing suggestion inherent in the phrase "honest belief" that a person could have a "dishonest belief," i.e., that a person could believe something he does not believe.) ¹

This principle had common law antecedents (Flannel, supra, 25 Cal.3d at p. 679, 160 Cal.Rptr. 84, 603 P.2d 1) but was not a purely common law defense. Rather, because malice is a statutory requirement for a murder conviction (Pen.Code, § 187, subd. (a)), the statute required courts to determine whether an actual but unreasonable belief in the imminent need for self-defense rose to We observed in Flannel, supra, 25 Cal.3d 668, 681, 160 Cal.Rptr. 84, 603 P.2d 1, that the doctrine had been "obfuscated by infrequent reference and inadequate elucidation" and thus, before the trial in that case, had not become a general principle of law requiring a sua sponte instruction. More important for our present purpose, though, is Flannel 's conclusion that in future cases imperfect self-defense would be deemed to be so well-established a doctrine that it "should be considered a general principle for purposes of jury instruction." (Id., at p. 682, 160 Cal.Rptr. 84, 603 P.2d 1.) Thus, by 1981 imperfect self-defense was demonstrably and firmly established.

[872 P.2d 577] the level of [7 Cal.4th 774] malice within the statutory definition. The doctrine thus had statutory as well as common law roots.

Diminished capacity was also well established by that time. "[M]alice aforethought could be negated by showing that a person who intentionally killed was incapable of harboring malice aforethought because of a mental disease or defect or intoxication. [Citation.] To explain how diminished capacity negated malice, we redefined and expanded the mental component of malice aforethought beyond that stated in [Penal Code] section 188 to include a requirement that the defendant was able to comprehend the duty society places on all persons to act within the law, i.e., that he had an 'awareness of the obligation to act within the general body of laws regulating society.' " (People v. Saille (1991) 54 Cal.3d 1103, 1110, 2 Cal.Rptr.2d 364, 820 P.2d 588, fn. omitted, quoting People v. Conley (1966) 64 Cal.2d 310, 322, 49 Cal.Rptr. 815, 411 P.2d 911.) Absent this awareness by the defendant, a court could not find malice.

Because imperfect self-defense and diminished capacity were firmly established by 1981, we assume the Legislature was aware of both doctrines and would have made clear any intent to abolish either doctrine. (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 303, 216 Cal.Rptr. 443, 702 P.2d 601; Estate of McDill (1975) 14 Cal.3d 831, 839, 122 Cal.Rptr. 754, 537 P.2d 874.)

2. The...