Randle

The central question presented by this case is whether one who kills in the actual but unreasonable belief he must protect another person from imminent danger of death or great bodily injury is guilty of voluntary manslaughter, and not murder, because he lacks the malice required for murder. In other words, should California recognize the doctrine of imperfect defense of others? We conclude the answer is, yes.

*991 I. Factual and Procedural Background

The homicide victim Brian Robinson lived with his parents and his cousin, Charles Lambert. Late one evening, as Robinson drove up to their home, he saw defendant getting out of Lambert’s car, holding a large stereo speaker he had just stolen from it.

Robinson confronted defendant, saying he was going to “beat your ass.” Defendant pulled a .25-caliber pistol from his pocket and fired it several times. Defendant and his cousin Byron W., who had helped him break into Lambert’s car, then fled on foot. Byron retained a backpack full of Lambert’s stereo equipment.

Defendant claimed he fired after Robinson “reached for his hip.” However, he did not claim he thought Robinson was reaching for a gun or other deadly weapon.…

Concurring.—I concur in the opinion of the court, but write separately to clarify the limited role that In re Christian S. (1994) 7 Cal.4th 768 [ 30 Cal.Rptr.2d 33 , 872 P.2d 574 ] (Christian S.) plays in this case. In particular, I disagree with Justice Brown that Christian S. compels the outcome here. (See conc. opn. of Brown, J., post, at p. 1008.)

Here there was evidence showing that the aggression of Brian Robinson exceeded any justifiable response to the criminal conduct defendant and his cousin Byron W. initiated, and that Robinson acted to physically punish Byron when Byron was helpless and posed no threat to anyone. Under these circumstances, Christian S. does not categorically bar defendant from invoking the doctrine of imperfect defense of others. (See maj. opn., ante, at pp. 1001-1003.) But neither does Christian S. logically compel the doctrine’s availability in this case, as Justice Brown contends in her concurring opinion.

In Christian S., an opinion I authored, we addressed the question whether the Legislature abrogated the doctrine of imperfect self-defense in 1981 by amending the Penal Code to eliminate the diminished capacity defense. 1 We found the…

Concurring.—I concur in the judgment and opinion of the court.

I write separately because the outcome of this case, although logically compelled by this court’s earlier decision in In re Christian S. (1994) 7 Cal.4th 768, 771 [ 30 Cal.Rptr.2d 33 , 872 P.2d 574 ] (Christian S.), seems to me unjust. If I were writing on a clean slate, I would not permit defendant to take advantage of the fact that his victim Robinson exceeded the bounds of a lawful citizen’s arrest.

In Christian S., we observed, “It is well established that the ordinary self-defense doctrine—applicable when a defendant reasonably believes that his safety is endangered—may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified. [Citations.] It follows, a fortiori, that the imperfect self-defense doctrine cannot be invoked in such circumstances. For example, the imperfect self-defense doctrine would not permit a fleeing felon who shoots a pursuing police officer to escape a murder conviction even if the felon killed his pursuer with an…

The central question presented by this case is whether one who kills in the actual but unreasonable belief he must protect another person from imminent danger of death or great bodily injury is guilty of voluntary manslaughter, and not murder, because he lacks the malice required for murder. In other words, should California recognize the doctrine of imperfect defense of others? We conclude the answer is, yes.

The homicide victim Brian Robinson lived with his parents and his cousin, Charles Lambert. Late one evening, as Robinson drove up to their home, he saw defendant getting out of Lambert's car, holding a large stereo speaker he had just stolen from it.

Robinson confronted defendant, saying he was going to "beat your ass." Defendant pulled a .25-caliber pistol from his pocket and fired it several times. Defendant and his cousin Byron W., who had helped him break into Lambert's car, then fled on foot. Byron retained a backpack full of Lambert's stereo equipment.

Defendant claimed he fired after Robinson "reached for his hip." However, he did not claim he thought Robinson was reaching for a gun or other deadly weapon. Moreover, Byron testified Robinson approached…