Trial court had no sua sponte duty to instruct on imperfect self defense where there is no evidence defendants fear of harm was unreasonable. Appellant was convicted of murder and other offenses, along with gang and gun use enhancements. The offenses arose from two separate exchanges between rival gang members. In May, 2006, appellant shot at an occupied motor vehicle, believing that its occupants were going to shoot him. Two months later, the same vehicle followed appellant’s car in a high-speed chase, during which appellant thought he saw a gun. He phoned a fellow gang member and requested help. During the chase shots were fired and a person was killed. Appellant argued the court erred in not instructing the jury on imperfect self defense. The Court of Appeal found that while the evidence could have supported a finding of actual self defense, a reasonable jury would not conclude appellant’s fear of death or great bodily injury was unreasonable, during either of the events. Appellant had shot at the same vehicle several months before the high-speed chase, because the occupants yelled gang challenges, the passenger moved as though retrieving a gun and appellant heard popping sounds. In the chase several months later, a rival gang member was carrying a gun and shooting at appellant. “Imperfect self defense is not a ‘true’ defense, but a ‘shorthand description of one form of voluntary manslaughter.'” Where the defendant’s version of events supports a finding of actual self defense and the prosecution’s evidence negates both actual and imperfect self defense, there is no sua sponte duty to instruct on imperfect self defense.
The trial court did not err by giving mutual combat instructions. Appellant argued the trial court erred by instructing on mutual combat as it relates to self defense. However, there was substantial evidence of mutual combat based on the manner in which the vehicles engaged in a chase, during which gunfire was exchanged. Any error in giving the instruction was harmless.
There was no error where the court instructed the jury on compelling another to commit a crime. The court instructed the jury that a person who compels another to commit a crime is guilty of the offense compelled. This instruction conformed to Penal Code section 31, which defines principals to a crime as including those who compel another to commit an offense. This concept is not limited to situations where an innocent person is used as a conduit to commit a crime. There was evidence appellant called a fellow gang member and solicited help, including asking him to obtain a weapon and to come to the scene of the chase. Thus, the instruction was not erroneously given and, in any event, was harmless.
Defense counsel consented to allowing an uncharged special allegation to go to the jury. The trial court instructed the jury regarding the special allegation of shooting a gun from a vehicle pursuant to Penal Code section 190, subdivision (d), which provides increased punishment of 20 years to life for second degree murder. Although this allegation was not alleged, the court stated its intent to give the allegation to the jury and defense counsel did not object. The jury found the allegation true and appellant received 20 years to life for second degree murder. As defense counsel consented to the inclusion of the allegation without amendment of the information, appellant has forfeited the right to claim lack of notice. The Court of Appeal rejected an allegation of ineffective assistance of counsel, finding no prejudice was shown.
The gang enhancement could not be imposed in addition to the section 12022.5 enhancement. The trial court erred in imposing a 15-year minimum parole eligibility period under section 186.22, subdivision (b)(5) for several attempted murder counts. The jury found only that a principal personally used a firearm in the commission of these counts. Therefore, appellant was not subject to an enhancement for participation in a criminal street gang in addition to the gun use enhancement imposed pursuant to section 12022.5 as there was no finding he personally used a gun in the commission of the offense. (Pen. Code, § 12022.53, subd. (e)(2).)