2015 #19 Self Defense Weekly Law Report

Law of Self Defense: Weekly Law Report 2015 #19 (April 27-May 1, 2015)__________________________________________________________________________________________

__________________________________________________________________________________________ 2015 www.lawofselfdefense.com Page 1 of 16

Frequently Asked Questions

Q: What is the Law of Self Defense: Law Report Weekly?

A: Each week Law of Self Defense staff review self-defense court decisions from around the country. Those we find most interesting are summarized in each weeks Law of Self Defense: Weekly Law Report.

Q: Do you recount each of the cases in their entirety?

A: No. Many cases that involve issues of self-defense also involve other issues unrelated to self-defense; we only summarize the portions of the cases that directly involve issues of self-defense law. We also strip out

much of the introductory commentary of the case, for purposes of efficiency. What we do include are the case citation, a list of the key self-defense law issues covered in that case, the date of the decision, and the

text of the decision that discusses the specific self-defense laws of interest.

The goal is to provide the reader with an efficient way of deciding if they want to read the entire case.

Q: What if I want to read the entire case?

A: Every case summarized here is hyperlinked back to the full-length version of that case. We do, in fact, strongly encourage you to read the entire text of any cases of particular interest to you, as that is the best

way to understand the fullest context of the courts decisions.

Q: How are the cases here organized, and how can I quickly know what issues are addressed in each?

A: The cases are organized by state, in alphabetical order, first listed in summary fashion in the Table of Contents and then by individual case.

Q: Having access to these cases is great, but I still find a lot of the legal terminology and principles of self-defense law confusing. Whats a good resource to really understand the law of self-defense?

A: For almost two decades Law of Self Defense has been providing non-lawyers as well as police officers, defense attorneys, prosecutors, and judges with world-class instruction on self-defense law. We encourage

you to start with our best-selling book, The Law of Self-Defense, 2nd Edition, (also available from Amazon in print and Kindle, the NRA Store, and Gun Digest) which covers all 50 states at a high level. You may also

consider one of our state-specific live Law of Self Defense Seminars held all over the country or state-specific online training classes. And, of course, theres always the Law of Self Defense Blog.



TABLE OF CONTENTS

CALIFORNIA

People v. Christian, 2015 Cal. App. Unpub. LEXIS 3008 (CA Ct. App. 2015)Key issues: Imminence, fear of future harm insufficient Proportionality, force after threat

neutralized is excessive; burden of persuasion on the State.Date: April 30, 2015

ILLINOIS

People v. Flemming, 2015 Ill. App. LEXIS 326 (IL Ct. App. 2015)Key issues: Burden of production on the defendant; burden of persuasion on the State;

elements of self-defense are cumulative, prosecution must disprove only one; Reasonableness, subjective; imperfect self-defense; dfn. grave bodily harm; dfn. deadly weapon.

Date: May 1, 2015

TEXAS

Kellum v. State, 2015 Tex. App. LEXIS 4436 (TX Ct. App. 2015)Key Issues: Burden of production on defendant; burden of persuasion on the State,

beyond a reasonable doubt; Reasonableness, ordinary and prudent man in the same circumstances.

Date: April 30, 2015

Villarreal v. State, 2015 Tex. App. LEXIS 4315 (TX Ct. App. 2015)Key Issues: Burden of production on the defendant; Burden of persuasion on the State,

beyond a reasonable doubt; Avoidance, preclusion, option of retreat; Failure to make statement to responding officers; Reasonableness, reasonable belief deadly force was necessary; Defense of others; Deadly force dfn.; Serous bodily injury dfn.


WASHINGTON

State v. Larkins, 2015 Wash. App. 2015 LEXIS 928 (WA Ct. App 2015)Key issues: Reasonableness, subjective fear; Reasonableness, objective; Imminence;

Proportionality, no more force than necessary; Reasonableness, subjective, all facts and circumstances as defendant knew them; Reasonableness, objective, reasonable and prudent person in defendants situation; Proportionality, deadly defensive force only against threat of death or great personal injury; Reasonableness, objective, fails; Reasonable Doubt, based on reason and evidence; Truth, not role of jury to find the truth.


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CALIFORNIA

People v. Christian, 2015 Cal. App. Unpub. LEXIS 3008 (CA Ct. App. 2015)

Key issues: Imminence, fear of future harm insufficient Proportionality, force after threat neutralized is excessive; burden of persuasion on the State.


Decision:

[ . . . ]

DISCUSSION

Christian [Defendant] contends the evidence was insufficient to prove beyond a reasonable doubt he

committed battery. He says that when the facts of this case are considered as a whole, "it is inherently

improbable and impossible of belief that [he] did not act in self-defense." We disagree.

The legal principles, which apply equally to adult

criminal trials and juvenile proceedings involving criminal acts (In re Ryan N. (2001) 92 Cal.App.4th

1359, 1371; In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404), are settled. The test of sufficiency of the

evidence is whether, reviewing the whole record in the light most favorable to the judgment below,

substantial evidence is disclosed such that a reasonable trier of fact could find the essential

elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578;

accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is

"reasonable, credible, and of solid value." (People v. Johnson, supra, at p. 578.) An appellate court must

"presume in support of the judgment the existence of every fact the trier could reasonably deduce from the

evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the

evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or

resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979)

96 Cal.App.3d 353, 367). Furthermore, an appellate court can only reject evidence accepted by the trier of

fact when the evidence is inherently improbable and impossible of belief. (People v. Maxwell (1979) 94

Cal.App.3d 562, 577.) "Where the circumstances support the trier of fact's finding of guilt, an appellate

court cannot reverse merely because it believes the evidence is reasonably reconciled with the

defendant's innocence. [Citations.]" (People v. Meza (1995) 38 Cal.App.4th 1741, 1747.) Reversal on the

ground of insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there

sufficient substantial evidence to support [the finding].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th

297, 331.)

"A battery is any willful and unlawful use of force or violence upon the person of another." ( 242.) If done



in a rude or angry way, a kick to the head clearly qualifies, as do hands or a forearm to the neck. (See

James v. State of California (2014) 229 Cal.App.4th 130, 137-138; People v. Myers (1998) 61 Cal.App.4th

328, 335.) No intent to cause injury is required. (See People v. Lara (1996) 44 Cal.App.4th 102, 107.)

"It follows that an offensive touching, although it

inflicts no bodily harm, may nonetheless constitute a battery, which the victim is privileged to

resist ...." (People v. Myers, supra, 61 Cal.App.4th at p. 335.) "'To justify an act of self-defense for [a battery

charge], the defendant must have an honest and reasonable belief that bodily injury is about to be

inflicted on him. [Citation.]' [Citation.]" (People v. Minifie (1996) 13 Cal.4th 1055, 1064, italics omitted.)

For a right of self-defense to exist, "the defendant's fear must be of imminent harm. [Citation.]" (People v.

Lopez (2011) 199 Cal.App.4th 1297, 1305.) "Fear of future harm -- no matter how great the fear and no

matter how great the likelihood of the harm -- will not suffice.... '"[T]he peril must appear to the defendant as

immediate and present and not prospective or even in the near future. An imminent peril is one that, from

appearances, must be instantly dealt with."'" (In re Christian S. (1994) 7 Cal.4th 768, 783.)

The prosecution has the burden of proving, beyond a

reasonable doubt, a defendant did not act in self-defense. (People v. Saavedra (2007) 156 Cal.App.4th

561, 571.) The juvenile court was well aware of this requirement. The question for us, then, is not whether

the prosecution proved the absence of self-defense

beyond a reasonable doubt, but whether there is substantial evidence to support the trier of fact's

conclusion. (See People v. Redmond (1969) 71 Cal.2d 745, 755.) We conclude there is. In light of the

evidence as a whole, the court reasonably inferred David was kicked in the head; Jonathan had already

fled, so the culprit could only have been Christian; and Christian was not acting in lawful self-defense

because David was on the floor, injured, and so did not pose an immediate threat to Christian.

Christian points out that even after being hit in the

head, David was able to get up and begin to chase after Jonathan. He argues there is nothing in

California law that requires him "to wait for his older, larger, and much more violent brother, to get up and

finish choking him to death." Hyperbole aside, while California law may not have required Christian to wait

for David to get up and resume choking him, neither did it give him free rein to kick David in the head when

David was on the floor and was not attempting to get up and resume choking him. (See, e.g., People v.

Pinholster (1992) 1 Cal.4th 865, 966 [right of self-defense does not extend beyond time of real or

apparent danger], disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459; People

v. Clark (2011) 201 Cal.App.4th 235, 250 [defendant may use force only as long as danger exists or

reasonably appears to exist]; People v. Perez (1970) 12 Cal.App.3d 232, 236 [when danger has passed

and attacker has withdrawn, "there can be no justification for the use of further force"].)

____________________________________________________________________________________



ILLINOIS

People v. Flemming, 2015 Ill. App. LEXIS 326 (IL Ct. App. 2015)

Key issues: Burden of production on the defendant; burden of persuasion on the State; elements of self-defense are cumulative, prosecution must disprove only one; Reasonableness, subjective; imperfect self-defense; dfn. grave bodily harm; dfn. deadly weapon.

Date: May 1, 2015

Decision:

[ . . . ]

ANALYSIS

Defendant raises the following three arguments on appeal: the court erred in (1) finding him guilty of

second degree murder where the State failed to disprove he acted in self-defense, (2) finding him

guilty of aggravated battery and (3) failing to conduct an adequate inquiry regarding his pro se ineffective

assistance claim.

1. Second Degree Murder Conviction

Defendant first challenges the sufficiency of the evidence to sustain his conviction for second degree

murder. He argues that the court erred in finding him guilty of second degree murder because the State

failed to disprove that he acted in self-defense beyond a reasonable doubt and its entire case rested

on the inconsistent and contradictory testimony of two inherently incredible witnesses, Gushiniere and

McElroy.

In considering a challenge to the sufficiency of the evidence, the reviewing court must determine

whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt. People v. Cunningham,

212 Ill. 2d 274, 278, 818 N.E.2d 304, 288 Ill. Dec. 616 (2004). The trier of fact, here the trial court, is

responsible for assessing the credibility of the witnesses, weighing the testimony, and drawing

reasonable inferences from the evidence. People v. Ortiz, 196 Ill. 2d 236, 259, 752 N.E.2d 410, 256 Ill.

Dec. 530 (2001). We will not reverse a criminal conviction unless the evidence is so improbable or

unsatisfactory that it creates a reasonable doubt as to the defendant's guilt. People v. Cox, 195 Ill. 2d 378,

387, 748 N.E.2d 166, 254 Ill. Dec. 720 (2001).

Defendant was charged with two counts of first degree murder of Nabry under sections 9-1(a)(1) and

(a)(2) of the Criminal Code of 1961 (Code) (720 ILCS 5/9-1(a)(1), (a)(2) (West 2010)) but found guilty of

second degree murder on both counts. Pursuant to sections 9-1(a)(1) and (a)(2), first degree murder

occurs when a person kills another person without lawful justification and, in performing the acts which

cause the death, he (1) either intended to kill or do great bodily harm to that individual or another or knew



that such acts will cause death to that individual or another or (2) knew that such acts create a strong

probability of death or great bodily harm to that individual or another. 720 ILCS 5/9-1(a)(1), (a)(2)

(West 2010). The elements of first and second degree murder are identical. People v. Jeffries, 164 Ill. 2d

104, 122, 646 N.E.2d 587, 207 Ill. Dec. 21 (1995). Second degree murder differs from first degree

murder only in the presence of a mitigating factor, such as an alleged provocation or an unreasonable

belief in justification. People v. Porter, 168 Ill. 2d 201, 213, 659 N.E.2d 915, 213 Ill. Dec. 569 (1995).

At trial, the State argued that defendant returned to

the apartment with a knife to retaliate against Nabry and Gushiniere. Defendant argued that he went back

to the apartment unarmed to retrieve McElroy, not to retaliate. He also argued that, even if the State met its

burden to prove murder, it did not disprove self-defense beyond a reasonable doubt. Self-defense is

a recognized legal justification to first degree murder.1 Jeffries, 164 Ill. 2d at 127. Once defendant raised

this affirmative defense, the State had the burden to prove beyond a reasonable doubt not only the

elements of first degree murder but also that the murder was not carried out in self defense. Id. In

order to raise self-defense:

"[T]he defendant must establish some evidence of each of the following elements: (1) force was

threatened against a person; (2) the person threatened is not the aggressor; (3) the danger of

harm was imminent; (4) the threatened force was unlawful; (5) he actually and subjectively believed

a danger existed which required the use of the force applied; and (6) his beliefs were objectively

reasonable." Id. at 127-28.

If the State negates any one of these elements, a defendant's claim of self-defense fails. Id. at 128.

Only if the State has successfully proven the

elements of first degree murder and negated a defendant's claim of self-defense may the trier of fact

consider whether the defendant is guilty of first degree murder or second degree murder. Jeffries,

164 Ill. 2d at 128-29. In order to be found guilty of second degree murder rather than first degree

murder, a defendant must prove by a preponderance of the evidence that:

"(1) at the time of the killing he or she is acting

under a sudden and intense passion resulting from serious provocation by the individual killed or

another whom the offender endeavors to kill, but he or she negligently or accidentally causes the

death of the individual killed; or(2) at the time of the killing he or she believes the

circumstances to be such that, if they existed, would justify or exonerate the killing under the

principles stated in Article 7 of this Code, but his or her belief is unreasonable." 720 ILCS 5/9-2(a)

(1), (a)(2) (West 2010).

Given that the court found defendant guilty of second degree murder, it necessarily must have found that

the State proved the elements of first degree murder, the State disproved or defendant failed to raise at

least one of the elements of self-defense and defendant proved by a preponderance of the

evidence a mitigating factor sufficient to reduce the offense from first degree murder to second degree

murder. Id. at 129.

Defendant challenges the State's assertion that he did not act in self-defense. He argues the State's case

was so unsatisfactory, improbable and unreasonable



that it established a reasonable doubt as to his guilt, asserting that the State's case was predicated

exclusively on the testimony of two inherently incredible witnesses, Gushiniere and McElroy, who

directly contracted each other and themselves on nearly every relevant fact in the case regarding the

details of the fight that caused Nabry's death.

The trial court was presented with conflicting versions of defendant's reentry into the apartment and

subsequent stabbing of Nabry. The State's version, presented through the testimony of Gushiniere and

McElroy, was that defendant approached the door armed with a knife and, when the door opened, he

immediately attacked Gushiniere and Nabry and stabbed Nabry without provocation or legal

justification. Defendant's version, presented through his own testimony, was that he approached the door

unarmed, Gushiniere and Nabry were armed with poles when they opened the door and, although he

verbally tried to defuse the situation and run upstairs, Nabry attacked him and he wound up stabbing Nabry

in self-defense with Nabry's own knife.

When presented with conflicting versions of events from witnesses, it is the trial court's responsibility to

determine the credibility of those witnesses and to determine which version to believe. People v.

Villarreal, 198 Ill. 2d 209, 231, 761 N.E.2d 1175, 260 Ill. Dec. 619 (2001). Here, the court chose to believe

the version presented by the State through the testimony of eyewitnesses Gushiniere and McElroy

and did not believe defendant's version of events. Gushiniere's and McElroy's testimony established that

defendant attacked Nabry without provocation as soon as the door opened. Neither testified that Nabry

and/or Gushiniere attacked or threatened defendant first such that he would need to immediately stab

Nabry to protect himself.

"In the context of self-defense, it is the

defendant's perception of the danger, and not the actual danger, which is dispositive. ***

Nevertheless, *** in cases of self-defense, the issue *** is whether the facts and circumstances

induced a reasonable belief that the threatened danger, whether real or apparent, existed. The

reasonableness of a defendant's subjective belief that he was justified in using deadly force is a

question of fact for the [trier of fact] to determine." People v. Sawyer, 115 Ill. 2d 184, 193, 503 N.E.

2d 331, 104 Ill. Dec. 774 (1986).

Accepting Gushiniere's and McElroy's version of the events, and viewing the evidence in a light most

favorable to the State, a rational trier of fact could find that the State disproved beyond a reasonable doubt

that any belief on defendant's part that he was justified in using deadly force was reasonable.

There is no question that Gushiniere and McElroy

contradicted each other throughout their testimony. They did not agree on who sat where in the

apartment, who was drinking alcohol, who was smoking crack or how the argument between McElroy

and defendant arose. They did not agree on whether Gushiniere chased defendant outside, whether

Gushiniere and defendant argued outside, whether defendant knocked/banged on the door and yelled

when he returned to the apartment, whether Gushiniere and/or Nabry were holding poles or

weights when they opened the door and a myriad of other details.

They did, however, agree that defendant was

agitated, aggressive and argumentative and possibly high while in the apartment the first time. This

testimony was corroborated by Officer Cobb, who



testified that defendant was aggressive and appeared under the influence of something when he questioned

him outside, shortly before the stabbing. Gushiniere and McElroy also agreed that defendant refused to

leave the apartment and had to be forced out by Gushiniere, that he returned to the apartment shortly

after his conversation with the officers and, when Gushiniere opened the door to him, he immediately

attacked. Gushiniere testified that, when he opened the door, defendant was holding a knife and

immediately stabbed Nabry while McElroy testified that defendant immediately charged Nabry and

Gushiniere and she did not see anything in defendant's hands. However, they both agree that

defendant was the aggressor; that he immediately attacked. The fact that McElroy did not see anything

in defendant's hands does not mean that he was not holding a knife.

Defendant points out that Gushiniere and McElroy

contradicted not only each other but themselves throughout their testimony. As the trial court noted,

defense counsel was able to impeach both Gushiniere and McElroy with statements each had

previously made to police officers and the grand jury. But none of these inconsistencies related to the crux

of the question here, whether defendant immediately stabbed Nabry and/or attacked Gushiniere and Nabry

when the door opened and, if so, whether he was justified in doing so, i.e., whether defendant could

have reasonably believed that deadly force was necessary in the situation.

Moreover, even if part of a witness's testimony is

questionable, this does not necessarily mean that everything that the witness said on the stand must be

subject to question. People v. Cunningham, 212 Ill. 2d 274, 282-83, 818 N.E.2d 304, 288 Ill. Dec. 616

(2004). A fact finder may reject entire testimony but is

not bound to do so. Id. at 283. "'[C]ontradictory testimony of a witness does not per se destroy [his

credibility], and it remains for the trier of fact to decide when, if at all, he testified truthfully.'" Id. (quoting

Sparling v. Peabody Coal Co., 59 Ill. 2d 491, 498-99, 322 N.E.2d 5 (1974)). "In other words, it is for the fact

finder to judge how flaws in part of the testimony affect the credibility of the whole." Id. Nothing in the

record supports finding that the court erred in crediting portions of Gushiniere and McElroy's

testimony over defendant's testimony.

Defendant also argues that Gushiniere and McElroy were unreliable witnesses because they were both on

psychotropic medications. The mental health of a witness can be relevant to assessing a witnesses'

credibility. People v. Williams, 147 Ill. 2d 173, 237, 588 N.E.2d 983, 167 Ill. Dec. 853 (1991). Here,

however, beyond Gushiniere's and McElroy's testimony regarding the medications they were taking,

the evidence did not otherwise call into question their ability to observe the situation clearly and

communicate it accurately and truthfully.

Viewed in the light most favorable to the State, we find that the evidence presented at trial supports

finding beyond a reasonable doubt that defendant stabbed Nabry without lawful justification, intending to

kill or cause great bodily harm to Nabry and knowing that his act created a strong probability of death or

great bodily harm. Further, the testimony supports finding that defendant was the aggressor in the

situation and that any subjective belief he may have had that he was justified in using deadly force as self-

defense was unreasonable. Accordingly, the evidence supports a finding that defendant did not prove he

stabbed Nabry in self-defense.



Defendant asserts that the court's second degree murder conviction represented a rejection of

Gushiniere's account of the fight that resulted in Nabry's death. Gushiniere had testified that, when he

opened the door, defendant immediately stabbed Nabry in the chest. Defendant asserts that no

reasonable fact finder could find this version of the fight compatible with imperfect self defense, mutual

combat or any other theory of second degree murder, i.e., if the court believed Gushiniere, it would have

found defendant guilty of first degree murder. Not so. If the court believed defendant had an unreasonable

belief in self-defense when he stabbed Nabry without legal justification, then the evidence supports a

second degree murder conviction. People v. Hawkins, 296 Ill. App. 3d 830, 836, 696 N.E.2d 16, 231 Ill. Dec.

287 (1998).

As noted above, after viewing the evidence in a light

most favorable to the State, a rational trier of fact could find the evidence supports finding that

defendant's belief that the circumstances justified using self-defense against Nabry was unreasonable.

Accordingly, the State proved first degree murder and disproved self-defense beyond a reasonable doubt.

Defendant did, however, prove one of the mitigating factors for second degree murder and the court,

therefore, did not err in finding defendant guilty of the second degree murder of Nabry. Defendant does not

challenge his sentence. We affirm the conviction and sentence.

[ . . . ]

____________________________________________________________________________________



TEXAS

Kellum v. State, 2015 Tex. App. LEXIS 4436 (TX Ct. App. 2015)

Key Issues: Burden of production on defendant; burden of persuasion on the State, beyond a reasonable doubt; Reasonableness, ordinary and prudent man in the same circumstances.


Decision:

[ . . . ]

Standard of Review and Applicable Law

[ . . . ]

When a defendant raises self-defense, he bears the burden of producing some evidence to support his

defense. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003) (citing Saxton, 804 S.W.2d at

913--14). Once the defendant produces some evidence supporting his defense, the state then bears

the burden of persuasion to "disprove the raised defense." Id. The burden of persuasion does not

require the production of evidence; it requires only that the state prove its case beyond a reasonable

doubt. Id. Moreover, "[d]efensive evidence which is merely consistent with the physical evidence at the

scene of the alleged offense will not render the [s]tate's evidence insufficient since the credibility

determination of such evidence is solely within the jury's province[,] and the jury is free to accept or reject

the defensive evidence." Saxton, 804 S.W.2d at 914. When the evidence is conflicting, we generally defer

to the weight the jury gave to the contradictory testimonial evidence. See Bundy v. State, 280 S.W.3d

425, 435 (Tex. App.--Fort Worth 2009, pet. ref'd) (finding evidence factually sufficient in face of

contradictory testimonial evidence).

A person acts in self-defense in using force against another when and to the degree he reasonably

believes the force is immediately necessary to protect him from the other's use or attempted use of unlawful

force. Tex. Penal Code Ann. 9.31(a) (West 2011). As applicable here, a person uses deadly force in

self-defense when and to the degree he believes deadly force is immediately necessary. Id. 9.32(a)

(2). A "reasonable belief" is that which "would be held by an ordinary and prudent man in the same

circumstances as the actor." Id. 1.07(a)(42) (West Supp. 2014).

[ . . . ]____________________________________________________________________________________



TEXAS

Villarreal v. State, 2015 Tex. App. LEXIS 4315 (TX Ct. App. 2015)

Key Issues: Burden of production on the defendant; Burden of persuasion on the State, beyond a reasonable doubt; Avoidance, preclusion, option of retreat; Failure to make statement to responding officers; Reasonableness, reasonable belief deadly force was necessary; Defense of others; Deadly force

dfn.; Serous bodily injury dfn.


Decision:

[ . . . ]

A. Standard of Review

Contrary to Villarreal's assertions, the question before this court is not whether the State presented evidence

refuting Villarreal's self-defense evidence. The defendant, rather, has the burden of producing some

evidence to support the claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003)

(citing Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991)). "Once the defendant produces

such evidence, the State" has the burden of disproving the defense. Id. The burden of persuasion

does not require the State to produce evidence; "rather it requires only that the State prove its case

beyond a reasonable doubt." Id. "When a jury finds the defendant guilty, [it implicitly finds] against the

defensive theory." Id.

[ . . . ]

B. Arguments of the Parties

1. Villarreal

Villarreal does not argue that he did not shoot Moy; he contends his actions were a matter of self-

defense. Villarreal argues the record only supports that the altercation between Villarreal and Moy was a

verbal confrontation prior to Moy attacking Villarreal. As evidence, Villarreal points to Garcia's testimony,

that he and Garcia retreated on several occasions and that they were pursued by Moy and several other

"party-goers." Only after Garcia tripped and Moy attacked him with a large planter, a threat of deadly

force, did Villarreal fire his weapon.

2. State

The State counters that the testimony supports that prior to Villarreal shooting Moy, nothing prevented

either Villarreal or Garcia from leaving the residence. Although Garcia testified that Moy was threatening

him with a large planter, during his statement to officers, Villarreal never mentioned Moy using the

planter as a weapon. The jury could have reasonably dismissed Garcia's testimony because no other



witness so testified, and the only evidence of a threat on Garcia was during Garcia's unsubstantiated

testimony.

C. Self Defense

"A person commits [murder] if he . . . intentionally or knowingly causes the death of an individual [or if he]

intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the

death of an individual . . . ." Tex. Penal Code Ann. 19.02(b)(1), (b)(2) (West 2011). Under certain

circumstances, however, self-defense justifies the use of deadly force. Morales v. State, 357 S.W.3d 1, 7

(Tex. Crim. App. 2011).

To prevail on a claim of self-defense, a defendant must prove that (1) he would have been justified in

using force against the other person, and (2) it was reasonable to believe that "deadly force [was]

immediately necessary [for protection] against the other's use or attempted use of unlawful deadly

force." See Tex. Penal Code Ann. 9.32(a) (West 2011); Morales, 357 S.W.3d at 4. Villarreal was

required to show that he reasonably believed deadly force was immediately necessary to protect either

himself or Garcia from Moy's alleged use or attempted use of unlawful deadly force. Tex. Penal

Code Ann. 9.32(a); Morales, 357 S.W.3d at 4; see also Tex. Penal Code Ann. 9.33 (requiring "the actor

reasonably believes that his intervention is immediately necessary to protect the third person").

"Deadly force" is force "intended or known by the

actor to cause, or in the manner of its use or its intended use is capable of causing, death or serious

bodily injury." Tex. Penal Code Ann. 9.01(3). "Serious bodily injury" is an injury that "creates a

substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or

impairment of the function of any bodily member or organ." Id. 1.07(a)(46).

[ . . . ]

____________________________________________________________________________________



WASHINGTON

State v. Larkins, 2015 Wash. App. 2015 LEXIS 928 (WA Ct. App 2015)

Key issues: Reasonableness, subjective fear; Reasonableness, objective; Imminence; Proportionality, no more force than necessary; Reasonableness, subjective, all facts and circumstances as defendant knew them; Reasonableness, objective, reasonable and prudent person in defendants

situation; Proportionality, deadly defensive force only against threat of death or great personal injury; Reasonableness, objective, fails; Reasonable Doubt, based on reason and evidence;

Truth, not role of jury to find the truth.


Decision:

[ . . . ]

III. SELF-DEFENSE

Larkins [the Defendant] argues that the trial court violated her right to present a defense when it refused

to instruct the jury on self-defense. Because no evidence supported her theory of self-defense, we

disagree.

A defendant is entitled to have the jury instructed on self-defense if there is some evidence to support the

theory. State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237 (1997). Self-defense has three elements: (1)

the defendant subjectively feared that she was in imminent danger of great bodily harm, (2) the

defendant's belief was objectively reasonable, and (3) the defendant exercised no more force than

reasonably necessary. State v. Werner, 170 Wn.2d 333, 337-38, 241 P.3d 410 (2010). Self-defense

involves both subjective and objective elements. State v. Read, 147 Wn.2d 238, 242-43, 53 P.3d 26

(2002). The subjective element considers the defendant's acts "in light of all the facts and

circumstances the defendant knew when the act occurred." Read, 147 Wn.2d at 243. The objective

elements consider "what a reasonable person would have done if placed in the defendant's situation."

Read, 147 Wn.2d at 243.

The standard of review depends on the reason the trial court refused to grant the self-defense instruction.

State v. Walker, 136 Wn.2d 767, 771, 966 P.2d 883 (1998). If the trial court declines the self-defense

instruction based on a factual dispute, we review its decision for abuse of discretion. Walker, 136 Wn.2d at

771-72. But if the trial court declines the self-defense instruction based on a ruling of law, we review its

decision de novo. Walker, 136 Wn.2d at 772. Here, the trial court refused to give a self-defense

instruction because it found no reasonable person in Larkins's shoes would have acted as she did. This

ruling involves an issue of law we review de novo. Read, 147 Wn.2d at 243.

A defendant may only use as much force in self-

defense as "what a reasonably prudent person would find necessary under the conditions as they appeared



to the defendant." Walden, 131 Wn.2d at 474. Deadly force may be used only if the defendant reasonably

believes that he or she is threatened with death or great personal injury. Walden, 131 Wn.2d at 474.

If placed in the situation Larkins faced, no reasonably

prudent person would have believed himself or herself to be in imminent danger of death or great

personal injury. Nor would any reasonably prudent person have believed it necessary to strike Johnson

with the automobile to defend against the perceived danger in these circumstances. Although Larkins

believed that Johnson possessed a gun and had been digging in her purse while walking, Johnson was

not brandishing a gun or threatening Larkins with a gun. In fact, Larkins never saw Johnson with a gun.

Rather, Johnson was walking away from Larkins at the time Larkins ran over her. Larkins also believed

that Johnson's family would hurt her. But Johnson's family members were not present at the scene. Any

threat that Johnson's family posed to Larkins was not imminent and could not have justified Larkins killing

Johnson. See Read, 147 Wn.2d at 242-43.

The objective test for self-defense is not met here. Therefore, we hold that the trial court did not err by

denying Larkins a self-defense instruction.

IV. Reasonable Doubt Instruction

Larkins argues that the trial court's reasonable doubt instruction undercut the State's burden of proof by

erroneously inviting the jury to search for the truth. We disagree.

"Jury instructions, taken in their entirety, must inform

the jury that the State bears the burden of proving every essential element of a criminal offense beyond

a reasonable doubt." State v. Pirtle, 127 Wn.2d 628,

656, 904 P.2d 245 (1995). "It is reversible error to instruct the jury in a manner that would relieve the

State of this burden." Pirtle, 127 Wn.2d at 656. "We review a challenged jury instruction de novo,

evaluating it in the context of the instructions as a whole." Pirtle, 127 Wn.2d at 656.

The instruction that Larkins complains of has never

been held to be improper. To the contrary, our Supreme Court has directed the use of WPIC 4.01 to

instruct juries of the nature of the government's burden. State v. Bennett, 161 Wn.2d 303, 318, 165 P.

3d 1241 (2007). The trial court did exactly that, reproducing WPIC 4.01 verbatim:

The defendant has entered a plea of not guilty.

That plea puts in issue every element of each crime charged. The State is the plaintiff and has

the burden of proving each element of each crime beyond a reasonable doubt. The defendant has no

burden of proving that a reasonable doubt exists.

A defendant is presumed innocent. This presumption continues throughout the entire trial

unless during your deliberations you find it has been overcome by the evidence beyond a

reasonable doubt.

A reasonable doubt is one for which a reason exists and may arise from the evidence or lack of

evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly, and

carefully considering all of the evidence or lack of evidence. If, from such consideration, you have an

abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.



Clerk's Papers (CP) at 144; see also 11 Washington Practice: Washington Pattern Jury Instructions:

Criminal 4.01, at 85 (3rd ed. 2008).

Larkins argues that WPIC 4.01 improperly suggests that the jury's role is to search for the truth. But WPIC

4.01 does not tell the jury to find the truth--it tells the

jury to acquit the defendant unless the government convinces the jury of the truth of the charge. WPIC

4.01 does not misstate the State's burden, and therefore, we hold that the trial court did not err by

giving the WPIC 4.01 instruction.

[ . . . ]________________________________________________________________________________________________________________________________________________________________________



2015 #19 Self Defense Weekly Law Report

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Transcript of 2015 #19 Self Defense Weekly Law Report