Gleghorn

May a person who enters the habitat of another at 3 o’clock in the morning for the announced purpose of killing him, and who commences to beat the startled sleeper’s bed with a stick and set fires under him, be entitled to use deadly force in self defense after the intended victim shoots him in the back with an arrow? Upon the basis of these bizarre facts, we hold that he may not, and instead, must suffer the slings and arrows of outrageous fortune (with apologies to William Shakespeare and Hamlet, Act III, sc. 1).

Kelsey Dru Gleghorn appeals his conviction by jury of one count of simple assault (Pen. Code, §240) and one count of battery with the infliction of serious bodily injury (Pen. Code, § 243, subd. (d)). He contends the trial court erred in denying his motion for mistrial based on his allegation of inconsistent verdicts and insufficient evidence to support the conviction on count II and erred in instructing the jury pursuant to CALJIC No. 5.42. We find no error and affirm the judgment.

Facts

This case is a parable of the dangers of weaponry in the hands of unreasonable powers who become unduly provoked over minor irritations. Melody Downes shared her house with…