Defendant was not entitled to sua sponte instructions on justifiable homicide in making an arrest or mistake of fact where he mistook innocent man for a burglar and killed him with an axe. Immediately after Zinda’s home was burglarized, he saw Valdez standing on the street nearby. Believing Valdez had been involved in the burglary, Zinda chased Valdez into a field and killed him with an axe. He was convicted of second degree murder. On appeal, Zinda contended that the trial court erred by not instructing the jury sua sponte on justifiable homicide in making an arrest and mistake of fact, and erroneously instructed the jury on heat of passion voluntary manslaughter. Held: Affirmed. Penal Code section 197, subdivision (4) provides that a homicide is justifiable “[w]hen necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed . . . .” A homicide is “necessarily committed” only where the felony committed is one which threatens death or great bodily injury. Although common law burglary would ordinarily qualify, it does not per se justify the use of deadly force in apprehending the perpetrator. Here, Zinda did not possess probable cause to arrest Valdez for burglary and there was no evidence that Zinda was attempting to arrest Valdez. Instead, the evidence showed that Zinda killed Valdez because he believed Valdez was bad. Zinda also was not entitled to a sua sponte mistake of fact instruction because his erroneous belief that Valdez was involved in the burglary did not justify killing Valdez with multiple axe blows. Further, mistake of fact is not a defense implicating the court’s sua sponte obligation to instruct. The court declined to determine whether the heat of passion instruction was erroneous because Zinda was not entitled to voluntary manslaughter instructions in the first place. No reasonable jury would have concluded that Zinda reasonably believed that Valdez had provoked him.

Trial court did not err by excluding evidence of the victim’s alleged gang affiliation. On appeal, Zinda also argued that the trial court erroneously excluded evidence that Valdez claimed a gang affiliation, as well as photographs which suggested a gang affiliation. The appellate court disagreed. The disputed photographs of Valdez showing gang signs did not have any tendency in reason to prove a disputed fact. There was no evidence that Valdez was dressed in gang attire or engaged in gang-related activity the night of the killing. There was no evidence that Zinda knew the victim or knew that he was a gang member. Evidence that Valdez may have been in a gang did not make it more likely that he broke into Zinda’s house or that Zinda both actually and reasonably believed he did so. Even if the gang evidence had some relevance to the issues presented, it was slight and the probative value was insignificant, especially when weighed against the substantial danger of undue prejudice. (Evid. Code, § 352.)