Security Guard Shooting in Self Defense Case in California

In People v. Elize (1999) 71 Cal.App.4th 605, the defendant, a security guard, was involved in an altercation with two women, one of whom may have hit him with an object. The defendant's gun fired, and a bullet went through one woman's clothing, although it did not injure her. The defendant testified the two women attacked him with pipes. One of the women grabbed his gun from his holster, and he attempted to point the gun upward. The gun fired, and the women fled. (Id. at pp. 607-608.) The defense counsel requested an instruction on self-defense. Acknowledging the defendant did not testify he acted in self defense, counsel argued based on the evidence the defendant was hit and suffered a broken arm, the jury could find that the defendant acted in self-defense. The trial court denied the request based on the defendant's testimony the gun fired accidentally. (Id. at p. 610.) After noting the "'instructional distinction between defenses and lesser included offenses,'" the court observed that "defense counsel in Barton specifically requested that no instructions be given on heat of passion manslaughter. The trial court nevertheless instructed on heat of passion manslaughter, because substantial evidence supported that lesser included offense. The Supreme Court in Barton affirmed, stating that '"the trial court must instruct on lesser included offenses . . . supported by the evidence . . . , regardless of the theories of the case proferred by the parties."' This conclusion was based on the underlying principle that '. . . the jury must be allowed to "consider the full range of possible verdicts--not limited by the strategy, ignorance, or mistakes of the parties," so as to "ensure that the verdict is no harsher or more lenient than the evidence merits."' " (People v. Elize, supra, 71 Cal.App.4th at p. 612.) Applying these principles to the case before it, the Elize court found it "clear that had the shot in question hit and killed one of the women, and had the defendant been charged with murder, the trial court would not only have had a duty, but indeed a sua sponte duty, to instruct on both heat of passion and unreasonable self-defense manslaughter notwithstanding defendant's claim that the gun fired accidentally. The fact that defendant testified that the shot was accidental would not have precluded a sua sponte duty to instruct on the lesser included offenses, as Barton makes clear. It is clear that inconsistency between an instruction and a defendant's testimony is no reason to refuse an instruction, so long as substantial evidence supports the instruction, at least in the case of lesser included offenses." (People v. Elize, supra, 71 Cal.App.4th at p. 612.) Rather, "a lesser included instruction is required even though the factual premise underlying the instruction is contrary to the defendant's own testimony, so long as there is substantial evidence in the entire record to support that premise." (Id. at p. 615.) The court further stated that "as to defenses, such as self-defense, the court must instruct sua sponte only if there is substantial evidence of the defense and the defense is not 'inconsistent with the defendant's theory of the case.' " (People v. Elize, supra, 71 Cal.App.4th at p. 615.) In the case before it, the court concluded "a jury could find from the evidence presented that the defendant was sought out and attacked by two angry women much larger than he, that he was being beaten with pipes, that this beating accounted for his broken wrist, that one of the women tried to take his handgun, and that he struggled with that woman while the other continued to beat him. A jury could disbelieve the defendant's testimony that the gun fired accidentally during this struggle. A jury could find that the defendant fired the gun intentionally, hoping to end the attack upon him either by hitting one of his assailants or by firing into the air to scare off his attackers." ( Id. at pp. 615-616.) Because there was substantial evidence to support the defense and the defendant requested an instruction on self-defense, the court concluded that the jury should have been instructed on the defense. (Id. at p. 616.)