People v. De Leon

A jury convicted appellant of second degree murder (count I, Pen. Code, 1 § 187, subd. (a)), attempted second degree murder (count II, §§ 664/187, subd. (a)), assault with a firearm (count III, § 245, subd. (a)(2)) and found gun use allegations (§ 12022.5), as to each count, true.

Appellant contends the trial court committed error, prejudicial as to counts I and II, by failing to sua sponte instruct on imperfect self-defense. (People v. Flannel (1979) 25 Cal.3d 668 [ 160 Cal.Rptr. 84 , 603 P.2d 1 ].) We disagree and affirm the judgment.

Factual Background

Although there is no insufficiency of evidence claim, it is necessary to fully describe the evidence because appellant contends there was substantial evidence of imperfect self-defense.

On Thursday, October 18, 1990, when Richard Monterrosa finished work at his construction job he went to the bank with four fellow workers. It was payday and they wanted to make deposits. They drove in two cars, arrived before 4 p.m., and then briefly went home before going to the Pizza Hut for pizza and beer.

*818 Around 6:30 p.m., when they left the restaurant, one of the men, Alfredo Fuentes, said he wanted to stop and buy some…

I concur separately merely to emphasize I do so only because I conclude there was not substantial evidence in the record supporting a claim of self-defense—reasonable or unreasonable. Hence, the trial court erred in giving the “reasonable” self-defense instruction and did not err in failing to give the “unreasonable” self-defense instruction. In the circumstances of this case, however, had there been sufficient evidence to support the former, it would have been error to refuse to give the latter.

*826 Since I find no error in the refusal to instruct on unreasonable self-defense and agree with the remainder of the majority opinion, I concur in the judgment.

A petition for a rehearing was denied November 24, 1992, and appellant’s petition for review by the Supreme Court was denied January 28, 1993.

WOODS (Fred), J.

A jury convicted appellant of second degree murder (count I, Pen. Code, [1] § 187, subd. (a)), attempted second degree murder (count II, §§ 664/187, subd. (a)), assault with a firearm (count III, § 245, subd. (a)(2)) and found gun use allegations (§ 12022.5), as to each count, true.

Appellant contends the trial court committed error, prejudicial as to counts I and II, by failing to sua sponte instruct on imperfect self-defense. ( People v. Flannel (1979) 25 Cal.3d 668 [ 160 Cal. Rptr. 84 , 603 P.2d 1 ].) We disagree and affirm the judgment.

Although there is no insufficiency of evidence claim, it is necessary to fully describe the evidence because appellant contends there was substantial evidence of imperfect self-defense.

On Thursday, October 18, 1990, when Richard Monterrosa finished work at his construction job he went to the bank with four fellow workers. It was payday and they wanted to make deposits. They drove in two cars, arrived before 4 p.m., and then briefly went home before going to the Pizza Hut for pizza and beer.

Around 6:30 p.m., when they left the restaurant, one of the men, Alfredo Fuentes, said he wanted to stop and buy some…