Lemus

*473 Opinion

Defendants Teodoro Lemus and Juan Lemus, Jr., appeal their convictions after a jury found them both guilty of assault with a deadly weapon (Pen. Code, 1 § 245) and Teodoro guilty of false imprisonment (§ 236). Both Teodoro and Juan contend the trial court erred in failing to instruct the jury regarding self-defense and in entering convictions of lesser included offenses after the jury had acquitted them of the greater charges. Juan further contends the evidence was insufficient to support the jury’s verdict. We conclude Teodoro’s and Juan’s contentions are correct as to the failure of the court to instruct on self-defense. Accordingly, we reverse on that ground.

Factual and Procedural Background

We recount the facts of the case in the light most favorable to the judgment.

At about 4 p.m. on February 26, 1986, shortly after finishing work in the asparagus fields, Silviano Franco visited a bar in Calexico, California. While there, Franco played several games of pool and drank beer until he became intoxicated. At about 7 p.m., Mary Helen Hernandez, Teodoro’s wife, entered the bar. Before going to the bar, Mary Helen had quarreled with Teodoro and she was angry with…

I respectfully dissent.

I disagree with the majority’s conclusion the trial court erred in refusing to instruct the jury on self-defense as to count one, attempted murder. Even if it was error to omit the instruction, I believe that error was harmless beyond a reasonable doubt.

At trial, there was no evidence adduced to support Teodoro’s theory of self-defense except his own testimony. However, Teodoro’s testimony was not sufficient to require a self-defense instruction. For the use of deadly force in self-defense to be justified, the actor must have “reasonable ground to believe and does believe that there is imminent danger that the other person will kill him or cause him great bodily injury, ... a bare fear of death or great bodily harm is not sufficient.” (CALJIC No. 5.12 (4th ed. 1979).) Here, there was no evidence Franco even had a knife or gun, much less put Teodoro in imminent danger with such a weapon. The evidence showed Teodoro had drawn his knife before the alleged threat by Franco. Mary Helen Hernandez, who was sitting with Franco, testified Franco never threatened Teodoro and never reached into his pocket. Another customer in the bar, Sebastian Luna, testified…

I concur in the result.

The rule of People v. Modesto (1963) 59 Cal.2d 722 [ 31 Cal.Rptr. 225 , 382 P.2d 33 ], which rests upon the California Constitution, requires the result reached herein. On this basis I agree with the majority opinion. However, I am reluctant to agree that Rose v. Clark (1986) 478 U.S. 570 [ 92 L.Ed.2d 460 , 106 S.Ct. 3101 ], and People v. Lee (1987) 43 Cal.3d 666 [ 238 Cal.Rptr. 406 , 738 P.2d 752 ], which embody federal principles, require per se reversal in this case, where an instruction not involving an element of the offense is involved.

Defendants Teodoro Lemus and Juan Lemus, Jr., appeal their convictions after a jury found them both guilty of assault with a deadly weapon (Pen. Code, [1] § 245) and Teodoro guilty of false imprisonment (§ 236). Both Teodoro and Juan contend the trial court erred in failing to instruct the jury regarding self-defense and in entering convictions of lesser included offenses after the jury had acquitted them of the greater charges. Juan further contends the evidence was insufficient to support the jury's verdict. We conclude Teodoro's and Juan's contentions are correct as to the failure of the court to instruct on self-defense. Accordingly, we reverse on that ground.

We recount the facts of the case in the light most favorable to the judgment.

At about 4 p.m. on February 26, 1986, shortly after finishing work in the asparagus fields, Silviano Franco visited a bar in Calexico, California. While there, Franco played several games of pool and drank beer until he became intoxicated. At about 7 p.m., Mary Helen Hernandez, Teodoro's wife, entered the bar. Before going to the bar, Mary Helen had quarreled with Teodoro and she was angry with him. Upon arriving at the…