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Name: People v. Rhodes
Case #: G033119
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 06/02/2005
Subsequent History: rehng. den. 6/21/05

A trial court prejudicially erred in instructing a jury under CALJIC 12.50 where the defendant was not charged with being a felon in possession of a firearm. The defendant, who had a prior felony drug conviction, was convicted of attempted voluntary manslaughter and other offenses after the court gave the jury, over defense objection, a modified instruction under CALJIC 12.50. That instruction relates to circumstances under which a felon may claim self-defense when he is charged under Penal Code section 12021(a)(1). In accordance with the use note to that instruction, the court refused to instruct the jury under CALJIC 5.50, which describes the law regarding the necessity of retreat prior to acting in self defense. The Court of Appeal agreed with defendant that the court erred in both instances, leaving the jury with the impression that the defendant should not have had a gun and was required to retreat before acting in self defense. CALJIC 12.50 should not be given where the defendant is not charged with a violation of section 12021(a)(1), and the use note regarding CALJIC 5.50 was inapplicable for the same reason.