Lead Opinion
Opinion
The central question presented by this case is whether one who kills in the actual but unreasonable belief he must protect another person from imminent danger of death or great bodily injury is guilty of voluntary manslaughter, and not murder, because he lacks the malice required for murder. In other words, should California recognize the doctrine of imperfect defense of others? We conclude the answer is, yes.
The homicide victim Brian Robinson lived with his parents and his cousin, Charles Lambert. Late one evening, as Robinson drove up to their home, he saw defendant getting out of Lambert’s car, holding a large stereo speaker he had just stolen from it.
Robinson confronted defendant, saying he was going to “beat your ass.” Defendant pulled a .25-caliber pistol from his pocket and fired it several times. Defendant and his cousin Byron W., who had helped him break into Lambert’s car, then fled on foot. Byron retained a backpack full of Lambert’s stereo equipment.
Defendant claimed he fired after Robinson “reached for his hip.” However, he did not claim he thought Robinson was reaching for a gun or other deadly weapon. Moreover, Byron testified Robinson approached them with a cup or bottle in his hand. Defendant and Byron agreed it was some sort of object made of glass that Robinson threw at them after defendant fired the pistol.
Defendant gave conflicting accounts as to his aim. On the one hand, he claimed he “fired the gun in the air.” On the other hand, he earlier testified, “I shot at him.”
Defendant testified he heard Robinson say something about getting a gun himself, and that he heard two loud bangs behind them as they fled. Byron testified he also heard gunshots as they ran. There was no evidence to corroborate these claims.
Robinson went into his house and roused Lambert. The two men got into a truck and pursued defendant and Byron. Defendant eluded them, but they caught Byron.
According to Lambert’s testimony, he and Robinson took turns beating Byron with their fists. After Byron fell to the ground, Robinson kicked him. Lambert pulled Robinson off Byron. Having recovered the stolen stereo equipment, they returned to the truck. However, Robinson jumped out of the truck and began beating Byron again. As he did, Robinson yelled at Lambert to “get pops,” meaning Robinson’s father; Lambert drove off to do so. While Lambert was present, the beating of Byron lasted “[pjrobably five, ten minutes.”
Byron testified his assailants
Defendant testified he ran away, but then backtracked in search of Byron. He heard someone yelling for help and someone else saying, “I’m going to kill this little nigger.” Coming closer, defendant saw someone beating Byron. Defendant shouted, “Stop. Get off my cousin.” Byron’s assailant glanced at defendant, but then resumed beating Byron. Defendant testified he fired his gun to make the man stop beating Byron.
Two prior statements defendant had made, one to the police and the other to a deputy district attorney, were played for the jury. According to defendant’s statement to the police, Robinson was beating Byron when defendant first shot at him. Defendant was, he said, “mainly thinking about getting him off my little cousin.” However, defendant admitted shooting at Robinson after Robinson started running away. In his statement to the deputy district attorney, defendant said he warned Robinson to get off Byron, shot once in the air, and then when Robinson did not respond, shot at him. Again, defendant admitted shooting at Robinson while he was running away. Defendant added he ceased firing because he ran out of ammunition.
Sharalyn Lawrence and Jennifer Wellington witnessed the beating from Lawrence’s upstairs window. They could see that Byron was “being really hurt.” Still, for a couple of minutes they were undecided what they should do. “I am like, this is Oakland,” Wellington testified, “what do you do[?]” Finally, hearing Byron cry out, “Somebody help me,” Lawrence telephoned 911, reporting a man “getting his ass beat.” She said an ambulance should be dispatched. Defendant shot Robinson after Lawrence called 911 to report Byron was being badly beaten.
As previously stated, although defendant and Byron testified Robinson was still beating Byron when defendant fired the shots, defendant, in his statements to the police and the deputy district attorney, said he fired one shot at Robinson while Robinson was running away. The testimony of Wellington and Lawrence tends to support the view that defendant shot at Robinson after Robinson stopped beating Byron and while he was running away. Wellington so testified, and Lawrence’s testimony, while not very clear on this point, suggested that at least some of the shots were fired as Robinson was running away.
At trial, defendant asked for an instruction on imperfect defense of another. The trial court denied the request. After deliberating five days, the jury convicted defendant of second degree murder (Pen. Code, §§ 187, 189)
Holding the trial court erred in refusing to instruct on imperfect defense of another, the Court of Appeal reversed the judgment convicting defendant of second degree murder. The Court of Appeal remanded the cause for a new trial on that count; in all other respects, it affirmed the judgment.
We conclude the trial court prejudicially erred in refusing to instruct the jury on the doctrine of imperfect defense of others.
Moreover, we conclude it was error, under the circumstances of this case, for the trial court to instruct the jury that defendant could be found guilty of second degree felony murder if the killing was committed in the course of discharging a firearm in a grossly negligent manner in violation of section 246.3. (People v. Robertson (2004)
Accordingly, we affirm the judgment of the Court of Appeal, reversing the trial court judgment insofar as it convicted defendant of second degree murder, and we remand the cause for further proceedings consistent with the views expressed herein.
II. Discussion
A. Imperfect Defense of Others
Again, the central question presented by this case is whether one who kills in the actual but unreasonable belief he must protect another person from imminent danger of death or great bodily injury is guilty of voluntary manslaughter, and not murder, because he lacks the malice required for murder.
The Attorney General contends (1) California has not recognized the doctrine of imperfect defense of others; (2) even assuming California does recognize the doctrine, defendant was not entitled to invoke it because he created the circumstances leading to the killing; and (3) in any event, any error in refusing to give the requested instruction was harmless here.
1. Whether California recognizes the doctrine
We begin by reviewing the related concepts of self-defense and defense of others. Self-defense is perfect or imperfect. For perfect self-defense, one must actually and reasonably believe in the necessity of defending oneself from imminent danger of death or great bodily injury. (People v. Flannel (1979)
“One acting in imperfect self-defense also actually believes he must defend himself from imminent danger of death or great bodily injury; however, his belief is unreasonable. (In re Christian S. (1994)
“California statutes have long separated criminal homicide into two classes, the greater offense of murder and the lesser included offense of manslaughter. The distinguishing feature is that murder includes, but manslaughter lacks, the element of malice. (Compare § 187, subd. (a) [‘[m]urder is the unlawful killing of a human being . . . with malice aforethought’] with § 192 [‘Manslaughter is the unlawful killing of a human being without malice’].)
“Malice exists, if at all, only when an unlawful homicide was committed with the ‘intention unlawfully to take away the life of a fellow creature’ (§ 188), or with awareness of the danger and a conscious disregard for life (ibid.; People v. Whitfield (1994)
“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.” (Christian S., supra,
Defendant contends defense of others, like self-defense, has an imperfect form. That is, defendant contends, if a killing is committed by someone who actually but unreasonably believes he is acting under the necessity of defending another person from imminent danger of death or great bodily injury, then the killing is voluntary manslaughter, not murder, because the killer is not acting with malice.
Defendant relies on our recent opinion in People v. Michaels (2002)
The doctrine was, we noted, of “doubtful” applicability, given the facts of the case. “Defendant’s problem is that both self-defense and defense of others
Nevertheless, we addressed the defendant’s contention that the trial court had a sua sponte duty to instruct on the doctrine. “The doctrine of unreasonable or imperfect defense of others, in contrast to the doctrine of unreasonable or imperfect self-defense, is not well established in California law. It has been recognized in only one decision, People v. Uriarte (1990)
Because the defense of imperfect defense of others was not, at the time of the Michaels trial, a well-established doctrine under California law, we held the trial court was not required to instruct the jury on the defense on its own motion. However, we acknowledged the doctrine “follows logically from the interplay between statutory and decisional law. Section 197 provides that ‘[h]omicide is . . . justifiable when committed by any person . . . [f] . . . [w]hen resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person.’ ” (Michaels, supra,
Again, as we said in Michaels, the doctrine of imperfect defense of others “follows logically from the interplay between statutory and decisional law.” (Michaels, supra,
The Attorney General contends that, contrary to Michaels, California has rejected the doctrine of imperfect defense of others. California has done so, the Attorney General argues, by treating the reasonableness requirement differently for self-defense than for defense of. others. In self-defense, the Attorney General notes, reasonableness is determined from the point of view of a reasonable person in the defendant’s position. The jury must consider all the facts and circumstances it might expect to operate on the defendant’s mind. (People v. Minifie (1996)
The Attorney General bases his argument on his construction of section 197, on his interpretation of the case law, and on his reading of public policy. He is, we conclude, mistaken in every respect.
a. Section 197
Section 197 provides in pertinent part: “Homicide is also justifiable when committed by any person in any of the following cases: 1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; [][]... [f] 3. When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed.”
Section 197, the Attorney General argues, impliedly rejects the doctrine of imperfect defense of others. His argument runs as follows: The statutory basis of the doctrine of self-defense is subdivision 3, while the statutory basis of
A problem with the Attorney General’s argument is that section 197 does not compartmentalize the doctrines of self-defense and defense of others as neatly as that. Subdivision 1, which the Attorney General characterizes as the defense-of-others provision, may also be read as including self-defense. No reason appears why the phrase “any person,” which occurs both in the stem of section 197 and in subdivision 1, would not cover oneself as well as others. Under section 197, subdivision 1, a homicide is justifiable when committed by “any person” “resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person.” (Italics added.)
On the other hand, subdivision 3, which the Attorney General characterizes as the self-defense provision, also expressly covers the defense of others, albeit others in specified relationships with the person who comes to their defense. Under this provision, a homicide is justifiable when committed by any person “in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished . . . .” (§ 197, subd. 3, italics added.)
Moreover, the Attorney General’s argument—that the Legislature must have intended to adopt the alter ego rule for defense of others because it did not expressly incorporate a reasonable person standard in subdivision 1—finds no support in the legislative history of section 197.
Section 197, enacted in 1872, was based on the Crimes and Punishment Act of 1850. Under the Crimes and Punishment Act, a reasonable person standard governed defense of others as well as self-defense. Both of the defenses were covered by section 29. “Justifiable homicide is the killing of a human being in necessary self-defence, or in defence of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony . . . .” (Stats. 1850, ch. 99, § 29, p. 232, italics added.) The applicability of the reasonable person standard to section 29 was made clear in the next section. “A bare fear of any of these offences, to prevent which the homicide is alleged to have been committed, shall not be
b. Case law
The Attorney General also misreads our cases. He asserts: “Early California cases observe that one who tills in the defense of another steps into the shoes of the person defended for purposes of evaluating a claim that homicide was justified. ‘A person interfering in a difficulty in behalf of another simply steps in the latter’s shoes; he may lawfully do in another’s defense what such other might lawfully do in his own defense but no more . . . .’ (People v. Will (1926)
By calling to our attention the fact that Will cites Travis, the Attorney General implies that our decision in Travis supports the passage he quotes from the Court of Appeal’s opinion in Will. However, it does not. In Travis, Wirt Travis was convicted of manslaughter for tilling A.G. Hill. Wirt, along with his sister Georgia and their brother John, attended a social function also attended by Hill. Georgia walked out, explaining to Wirt that she could not remain in the hall with Hill because he had impugned her virtue. Wirt so informed his brother John. The two of them went back into the hall and took seats apart from one another but near Hill. John hit Hill. Hill drew a pistol on John. Wirt then shot Hill in the back, tilling him. (Travis, supra, 56 Cal. at pp. 252-253.)
Wirt claimed he acted in defense of John, believing Hill was about to shoot John. His claimed fear had some basis. A witness testified that Hill had previously told him, “the first thing he was going to do with them boys [the Travis brothers], he would commence tilling them, if he got in a row with them.” (Travis, supra,
People v. Will, supra,
c. Public policy
The Attorney General’s public policy argument is that the doctrine of imperfect self-defense is “an open invitation to assaults, not just upon undercover officers effectuating arrests, but upon innocent bystanders in many
2. Whether defendant may invoke the doctrine
The Attorney General, relying on Christian S., supra,
Defendant contends the Attorney General is barred from raising this argument because he did not raise it in the Court of Appeal. The Attorney General responds the argument was “implicit” in his Court of Appeal brief. We disagree. Fairly read, the Attorney General’s brief in the Court of Appeal is limited to the argument we discussed earlier, that contrary to Michaels, supra,
However, this issue, whether defendant is precluded from invoking the doctrine of defense of others because he created the circumstances leading to the killing, was squarely raised in the Attorney General’s petition for review, which we granted. We may decide any issue raised or fairly included in the petition or answer. (Cal. Rules of Court, rule 29(b)(1).) The Attorney General urges us to exercise our discretion to decide this issue.
As a matter of policy, we generally will not consider on review any issue which could have been, but was not, timely raised in the Court of Appeal. (Cal. Rules of Court, rule 28(c)(1); Gavaldon v. DaimlerChrysler Corp. (2004)
The facts underlying the Attorney General’s argument were undisputed. Defendant admitted arming himself with a pistol when he and Byron set out to burglarize cars, and he admitted using the weapon when Robinson surprised him in the act of burglarizing Lambert’s car. Therefore, we conclude the Attorney General is not barred, by his failure to raise it below, from arguing that defendant is not entitled to invoke the doctrine of imperfect defense of others because he created the circumstances leading to the killing.
Turning to the merits, we agree with defendant.
The Attorney General’s argument fails because although defendant’s criminal conduct certainly set in motion the series of events that led to the fatal shooting of Robinson, the retreat of defendant and Byron and the subsequent recovery of the stolen equipment from Byron extinguished the legal justification for Robinson’s attack on Byron. (See Christian S., supra,
The record supports the conclusion that Robinson was taking the law into his own hands, meting out the punishment he thought Byron deserved, and not making a citizen’s arrest as the Attorney General claims.
While we hold defendant’s conduct did not create circumstances legally justifying Robinson’s attack on Byron, we should not be understood as condoning it in any respect. By making two fateful choices defendant triggered an escalating series of events that transformed the most mundane of property crimes into a fatal shooting. When he set out to burglarize cars, defendant chose to arm himself. When he was surprised in the act of burglary, defendant chose to use the weapon. Whether, during that initial confrontation, he fired the pistol at Robinson, or fired in the air, as he variously testified, he raised the stakes enormously.
3. Whether refusal to instruct on the doctrine was harmless
The Attorney General contends that, even assuming arguendo the trial court erred in failing to instruct on the doctrine of imperfect defense of others, the error was harmless.
Any error in failing to instruct on imperfect defense of others is state law error alone; and thus subject, under article VI, section 13 of the California Constitution, to the harmless error test articulated in People v. Watson (1956)
The thrust of defendant’s testimony was that he acted in perfect defense of another. He claimed he shot at Robinson in the reasonable belief he had to do so in order to protect Byron from imminent danger of death or great bodily injury. However, the evidence was also susceptible of the interpretation that defendant’s belief in the necessity of protecting Byron, supposing he held such a belief, was unreasonable because Byron was not really in imminent danger of death or great bodily injury. Indeed, the prosecutor argued to the jury that Bryon was not being beaten that badly; Byron did not, the prosecutor noted, seek any medical treatment for the injuries he claimed to have suffered. Under this view of the evidence, defendant was entitled to an instruction on imperfect defense of others. In concluding the failure to give the instruction was prejudicial, we note the jury, even without having been instructed on this theory, took five days to reach its decision.
B. Section 246.3 and the Merger Doctrine
The instructions permitted the jury to convict defendant of second degree murder on three theories: express malice, implied malice, and felony murder. The felony-murder theory was based on defendant’s having discharged a firearm in a grossly negligent manner (§ 246.3). Defendant contends it was error to instruct on felony murder because the offense of discharging a firearm in a grossly negligent manner here necessarily merged with the homicide.
In People v. Ireland (1969)
Here, unlike Robertson, defendant admitted, in his pretrial statements to the police and to a deputy district attorney, he shot at Robinson. Defendant told the police, “And I was like, ‘Get off my cousin!’ I shot one time in the air, and then they looked up, and I guess they started running. That’s when I shot towards them one time.” Upon being questioned by a deputy district attorney, defendant gave this account: “. . . I said ‘Get off my cousin.’ That’s when I brandished the pistol and shot one time in the air. And then he just stood there and looked at me like he didn’t care so I shot again, [f] Q. Now when you shot, when you shot the next time where was the gun pointed? H] A. It was pointed towards him. [][] Q. Ok. And then what did the guy do after you shot the second time when it was pointed at him? [f] A. He ran. [][] Q. And what did you do after he ran? [f] A. I fired the gun one last time, he ducked, then he got back up and then when I tried to fire again it was just, the gun wouldn’t click. It was out of bullets.”
The fact that defendant admitted shooting at Robinson distinguishes Robertson and supports application of the merger rule here. Defendant’s claim that he shot Robinson in order to rescue Byron simply provided a motive for the shooting; it was not a purpose independent of the shooting.
The judgment of the Court of Appeal reversed the judgment convicting defendant of second degree murder. The Court of Appeal remanded the cause for a new trial on that count; in all other respects, it affirmed the judgment. We affirm the judgment of the Court of Appeal, and we remand the cause for further proceedings consistent with the views expressed herein.
George, C. 1., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Moreno, J., concurred.
Notes
He did not identify Robinson or Lambert.
All further statutory references are to the Penal Code.
3 “Not all murder requires the People to prove the defendant killed intentionally or with conscious disregard for life. Under the felony-murder rule, a homicide is murder when it occurs in the course of certain serious and inherently dangerous felonies (§ 189 [first degree felony murder]; see, e.g., People v. Patterson (1989)
Perkins explains the origins and evolution of such catalogues of relationships in statutory provisions covering self-defense and defense of others. “The privilege of using force in defense of others, as a separate privilege, developed partly by accident. It had its roots in the law of property. The privilege of one to protect what was ‘his’ was extended to include the protection of his wife, his children and his servants. In the course of time this privilege outgrew the property analogy and came to be regarded as a ‘mutual and reciprocal defence.’ The household was regarded as a group, any member of which had a privilege to defend any other member. ‘A man may defend his family, his servants or his master, whenever he may defend himself.’ Even this concept of the privilege was outgrown and it came to include the members of one’s immediate family or household and any other ‘whom he is under a legal or socially recognized duty to protect.’ Thus a conductor was privileged to defend his passenger, and a man privileged to defend a lady friend whom he was escorting at the moment. The present position, which represents a merging of the privilege of crime prevention with the privilege of defending others, is that one may go to the defense of a stranger if that person is the innocent victim of an unlawful attack.” (Perkins & Boyce, Criminal Law (3d ed. 1982) Self-Defense, § 5, pp. 1144—1145, fns. omitted.)
While acknowledging some courts had adopted the alter ego rule, Perkins states the “sound” view was that one coming to the defense of others “is protected by the usual mistake-of-fact doctrine and may act upon the situation as it reasonably seems to be.” (Perkins & Boyce, Criminal Law, supra, § 5, p. 1147, fn. omitted.) He adds: “Most of the codes that deal separately with the defense of another seem to leave no trace of the view that one who goes to the aid of another ‘acts at his peril’ with reference to the right of that person to receive such aid . . . .” (Id., p. 1148, fn. omitted.)
Had Robinson and Lambert been attempting to effect a citizen’s arrest, the use of reasonable force may have been permitted. (§§ 835, 837; People v. Fosselman (1983)
See, e.g., People v. Young (1963)
Concurrence Opinion
Concurring.—I concur in the opinion of the court, but write separately to clarify the limited role that In re Christian S. (1994)
Here there was evidence showing that the aggression of Brian Robinson exceeded any justifiable response to the criminal conduct defendant and his cousin Byron W. initiated, and that Robinson acted to physically punish Byron when Byron was helpless and posed no threat to anyone. Under these circumstances, Christian S. does not categorically bar defendant from invoking the doctrine of imperfect defense of others. (See maj. opn., ante, at pp. 1001-1003.) But neither does Christian S. logically compel the doctrine’s availability in this case, as Justice Brown contends in her concurring opinion.
In Christian S., an opinion I authored, we addressed the question whether the Legislature abrogated the doctrine of imperfect self-defense in 1981 by amending the Penal Code to eliminate the diminished capacity defense.
Unlike the instant case, Christian S. did not involve any criminal conduct initiated by the defendant. Neither did it concern any claim of perfect or imperfect defense of others. Moreover, the decision did not purport to set forth all the circumstances under which a defendant may or may not assert the doctrine of imperfect self-defense. In sum, Christian S. did not recognize, or refuse to recognize, the imperfect defense of others doctrine, and did not address possible restrictions to the imperfect self-defense doctrine other than to note the one obvious example above. Accordingly, that decision does not compel the result here. (See People v. Scheid (1997)
That said, I concur in the court’s conclusion that nothing we said in Christian S. prohibits defendant here from invoking the imperfect defense of others doctrine. (See maj. opn., ante, at pp. 1001-1003.) Although defendant’s initial criminal conduct in brandishing and shooting a firearm may well have provoked anger and fear in Robinson, there appears substantial evidence that Robinson exceeded any justifiable response when, after catching up to and physically attacking Byron the first time, Robinson returned to the obviously helpless Byron a second time to resume beating him.
Although I believe our holding is consistent with the restrictions thus far recognized for the analogous doctrine of imperfect self-defense, I join Justice Brown in her call for the Legislature to provide clear definitions of malice, and to reexamine the issues of whether and to what extent a defendant may invoke the doctrines of imperfect self-defense and imperfect defense of others. (See conc. opn. of Brown, J., post, at p. 1010; People v. Wright (2005)
In Christian S., the defendant, a minor, sought review of a judgment making him a ward of the juvenile court after sustaining a petition charging him with second degree murder. The evidence showed that the victim was a so-called skinhead and a possible gang member, and that the defendant began carrying a handgun after the victim’s friends had physically and verbally harassed and threatened the defendant for about a year. The victim had blamed the defendant for damaging his truck, and one day he chased the defendant while repeatedly threatening “ ‘to get him’ ” and challenging him to fire his weapon. (Christian S., supra,
Concurrence Opinion
Concurring.—I concur in the judgment and opinion of the court.
I write separately because the outcome of this case, although logically compelled by this court’s earlier decision in In re Christian S. (1994)
In Christian S., we observed, “It is well established that the ordinary self-defense doctrine—applicable when a defendant reasonably believes that his safety is endangered—may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified. [Citations.] It follows, a fortiori, that the imperfect self-defense doctrine cannot be invoked in such circumstances. For example, the imperfect self-defense doctrine would not permit a fleeing felon who shoots a pursuing police officer to escape a murder conviction even if the felon killed his pursuer with an actual belief in the need for self-defense.” (Christian S., supra,
There is no question but that defendant, by his felonious acts, set in motion the events resulting in his killing of Robinson. “By making two fateful choices defendant triggered an escalating series of events that transformed the most mundane of property crimes into a fatal shooting. When he set out to burglarize cars, defendant chose to arm himself. When he was surprised in the act of burglary, defendant chose to use the weapon. Whether, during that initial confrontation, he fired the pistol at Robinson, or fired in the air, as he variously testified, he raised the stakes enormously.” (Maj. opn., ante, at p. 1003.)
However, under Christian S., defendant may invoke the doctrine of imperfect defense of others because Robinson’s attack on Byron was not legally justified. “The Attorney General’s argument fails because although defendant’s criminal conduct certainly set in motion the series of events that led to the fatal shooting of Robinson, the retreat of defendant and Byron and
“The record supports the conclusion that Robinson was taking the law into his own hands, meting out the punishment he thought Byron deserved, and not making a citizen’s arrest as the Attorney General claims. While Robinson may well have had a right to pursue Byron for the purpose of recovering Lambert’s stolen property, and to use reasonable force to retrieve it, the beating of Byron by Robinson and Lambert went well beyond any force they were entitled to use. Moreover, after they recovered the stolen stereo equipment and returned to their truck, Robinson jumped out of the truck and began beating Byron again. At that point Robinson’s use of force was completely unjustified, and it was at that point, or shortly thereafter, that defendant shot Robinson.” (Maj. opn., ante, at pp. 1002-1003, fins, omitted.)
The paradigm for permitting imperfect defense of others is a case like that of Kitty Genovese
The Legislature has made a policy decision that felons who break into homes or businesses cannot sue for compensation. (Civ. Code, § 847.) Similarly, the Legislature enacted the Home Protection Bill of Rights in 1984 “ ‘to permit residential occupants to defend themselves from intruders without fear of legal repercussions, to give “the benefit of the doubt in such cases to the resident ....”’ [Citation.]” (People v. Hardin (2000)
For the Attorney General, the specter raised by the doctrine of imperfect defense of others extends far beyond the circumstances presented by a case like this: ”A judicially created doctrine of unreasonable defense of others would be an open invitation to assaults, not just upon undercover officers effectuating arrests, but upon innocent bystanders in many situations not the
As the Attorney General observes, imperfect defense of others, like imperfect self-defense, is a judicially created doctrine. (See People v. Rios (2000)
See Gansberg, 37 Who Saw Murder Didn’t Call the Police, N.Y. Times (Mar. 27, 1964) p. Al.
That may have been the game the Travis brothers were playing in People v. Travis (1880)