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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Steven Arthur MINIFIE, Defendant and Appellant.

No. A063700.

Decided: March 28, 1995

David D. Carico, Carmel, for appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Richard Rochman, Deputy Atty. Gen., Martin S. Kaye, Deputy Atty. Gen., San Francisco, for respondent.

Appellant Steven Arthur Minifie was convicted by a jury of one count of possession of a firearm by an ex-felon (Pen.Code, § 12021), and two counts of assault with a deadly weapon (Pen.Code, § 245, subd. (a)(2)), with enhancements for use of a firearm (Pen.Code, § 12022.5) and infliction of great bodily injury (Pen.Code, § 12022.7).   The court found a prior serious felony allegation to be true (Pen.Code, § 667, subd. (a)), and sentenced appellant to a total of 12 years in prison.

Appellant contends that the court erroneously excluded evidence material to his defense against the assault charges.   Appellant sought to testify that, prior to the alleged assaults, his life had been threatened by friends of the victim, and he wanted to show that the victim and the victim's friends had a reputation for violence.   This evidence was offered in support of appellant's claim of self-defense, to prove that he had used only reasonable force in the altercation at issue.   We agree with appellant that the evidence should have been admitted, and that his defense was prejudiced by its exclusion.   We therefore reverse all of the judgment apart from the conviction for illegal possession of a firearm.


The incident in question occurred at the Antlers bar in Pinole, about three or four minutes after appellant arrived there around midnight on November 29–30, 1992.   Appellant testified that the bar was crowded with people standing elbow-to-elbow when he went inside and walked over to talk to Ricky Nelson.   When appellant entered the bar he did not see 5′11″, 250–pound Aukusitino Afamasaga (Tino), but he noticed Tino staring at him when he glanced up from talking with Nelson.   Appellant said that Tino was “staring at me like—like if looks could kill, I'd be dead.”

Appellant recognized Tino as a friend of Jackie Knight, who had been shot and killed by appellant a couple of years earlier.   Appellant knew that Tino had been a pallbearer at Knight's funeral.   Appellant had not been prosecuted for shooting Knight.   However, appellant pled guilty in 1990 to three counts of assault with a deadly weapon, and he testified that, at the time he went to prison for the assaults, he was afraid of Tino and “the whole ․ Knight crowd.”   When appellant was released from prison in 1991, he moved with his wife and child from El Sobrante to Pleasanton, to in his wife's words, “get away from the area, get away from everybody and start a new life.”   Appellant said that when he was living in Pleasanton he considered himself to be in hiding.   Appellant's wife said that when they went to visit her parents in El Sobrante, no one other than her parents would be told they were coming.

Appellant went to stay with his wife's parents on the Thanksgiving weekend in 1992 because a friend of his from the area, Anthony Davis, had been murdered, and Davis' funeral was scheduled for Monday.   A few days before Davis was killed he had given appellant a gun.   After dinner at his in-laws' house on Saturday night, appellant went to see Frankie Ortega to ask if Frankie would accompany him to the viewing of Davis' body on Sunday.   Appellant said that he wanted to have Frankie along for the occasion because “I just don't like being alone when I go to things like that.   I don't even like being alone at all.”

Appellant and Frankie went out to Chevys, where they saw Tracy Crigger, Nicole Johnson, and Rachel McArthur, who were friends of Tino and the Knight family.   Rachel's boyfriend was Jeff Knight, a brother of the man appellant had killed.   Appellant and Frankie picked up their friend Lenny.   Then appellant and Lenny took Frankie home, and appellant and Lenny went to the Antlers bar.   Asked why he went to the bar if he did not want to be “such a public figure,” appellant said that he “more or less got talked into [it],” and that he “really wasn't thinking.”   Tino was sitting at a table with Crigger, Johnson and McArthur when appellant walked into the bar.   The women pointed out appellant, who Tino recognized by name and hated for having killed his friend.

When appellant went out that night he took along his gun “as a precaution [because] of what happened to [Davis],” and he had the gun in the front pocket of his baggy jeans when he went to the Antlers bar.   Appellant knew that it was wrong for him to possess a firearm, and that having a gun was a violation of his parole.   He admitted that he “wasn't thinking” when he brought the gun into the bar, but said that he had kept the gun with him “for protection” after Davis was murdered.

Appellant felt “bad vibes” when he saw Tino staring at him, and immediately decided to leave the bar.   He walked toward the front door, even though to do that he had to pass by Tino and there were side doors he could have taken.   Appellant explained that he was only ten feet away from the front door, and that the side doors would have been difficult to reach in the crowded bar.   As appellant walked toward the door, Tino—who had a cast on his foot and was using crutches—approached appellant, put his palms up in the air, said “[w]hat's up?” and asked if appellant knew who he was.   When appellant was cross-examined as to why he did not turn around and walk away from Tino at that point, he said that “at that time I was not scared of Tino because he was not—he posed no threat to me, as I seen.   He was on crutches.   I felt that everything could have been cool.”

Tino punched appellant in the face and knocked him over on to his back.   Appellant testified that as he lay dazed on the floor, unable to get up, he saw Tino reach down and grab for a crutch.   Appellant said that Tino had grabbed the crutch with two hands, and raised it about a foot off the floor, when he pulled out his gun and fired a shot in Tino's direction.   Appellant said that he shot at Tino because he thought Tino was going to hit him in the head with the crutch, and he feared for his life.   Appellant said that he did not have time to aim and just wanted to scare Tino.   The bullet hit three fingers of Tino's right hand, and then struck another bar patron, Darrell Nordahl, in the thigh.

Appellant said that he ran out the front door, and that he was running over to his car when he noticed that Tino had emerged from the bar and was heading toward another car parked outside.   At that point appellant shot his gun up into the air to frighten Tino, and then ran away in the opposite direction.   He ran along the streets and through backyards for about 30 minutes, and eventually telephoned his wife from a drug store.   He lost the gun somewhere while he was running.   His wife picked him up, and they drove with their son to a motel in Fremont, where they stayed for 11 days before he turned himself in to the police.   His wife took a photo of his face a day or two after the incident, showing injuries to his nose from Tino's punch.   He did not seek medical treatment for the injuries because he did not want to be arrested.

The prosecution presented evidence to the effect that:  appellant fired his gun at Tino without warning;  Tino was unarmed and did not try to hit appellant with a crutch;  appellant fired a second shot at Tino in the bar;  appellant chased Tino out of the bar and shot at him again outside;  and appellant fled the scene in a car.   Three spent cartridges were found at the scene, one inside the bar and two outside.   Tests showed that the shots had been fired from a gun found in the area toward which appellant had fled.

A portion of the prosecutor's closing argument reads as follows:  “The defendant has tried to portray that he is scared to come back into West County․  [¶] And the question that I could not understand by [defense counsel] is, ‘[w]ell, did you announce to anybody that you were coming to West County?’   I mean there is no PA announcement that just goes over the West County area where you say, ‘Steve Minifie and wife coming in.’   I mean when you go to visit your in-laws, you get in your car in Pleasanton and you drive.   Where is there an announcement?   Again trying to create this aura that there is this big conspiracy, this big fear, this big threat out there that if Steve Minifie shows his face in West County, he's going to get hurt or killed.   There's been no evidence of that․  [¶] There's no doubt that there's bad blood between Tino and Steve Minifie.   You could pick up on that right away.   But to enhance it, to heighten it to the point that it fits into the contrived self-defense that they're trying to have you believe is preposterous because its not supported by the evidence.”  (Italics added.)


Before trial appellant submitted a written offer of proof as follows:  “Sgt. Celestre of the Contra Costa County Sheriff's Department will be called to the stand to testify that the Knight family of the Pinole area has a reputation for violence, a reputation for making threats with the means of carrying them out and a reputation for being extremely dangerous.   The Knight family and friends are found in and out of prison.”   The offer of proof explained the relevance of this reputation evidence to appellant's theory of self-defense, in light of the other evidence to be presented by the defense at trial.

The defense evidence was to include testimony that after appellant killed Jackie Knight, he had “been threatened both directly and indirectly.   [Appellant] spent time in prison (and jail awaiting prison) for an unrelated 245 P.C. (the prior violent felony).   He received an attack in jail while awaiting the plea bargain that landed him in prison.   He received threats in prison.   His wife heard of threats from friends of the Knights.”   The defense was further prepared to prove that appellant's visits to his in laws “were always in secret.   He was afraid of the Knights finding out where he was.   He was scared that he would be killed.   On the night of the shooting, defendant was in town because his close friend Anthony Davis had been killed by a friend of the Knights․  [¶] [Appellant] knew Tino by sight.   He knew Tino was a very close friend of Jackie Knight.   He knew Tino had a reputation for violence.   He was scared of Tino and associated Tino with the Knight crowd.”

The offer of proof concluded:  “Since [appellant] killed Jackie Knight in self-defense, since Tino was one of Jackie's pallbearers, since [appellant] had received threats ever since Jackie's shooting from family and friends of the Knights, Sgt. Celestre should be able to testify that the Knight family and friends have a propensity for violence, are extremely dangerous, and have a reputation for making threats and carrying them out.”

Appellant's position was further elaborated at a hearing outside the presence of the jury.   Defense counsel explained that Sergeant Celestre's testimony about the Knight family and friends would be “very brief ․ probably three or four questions․  [¶] And specifically I'm talking about in the Knight family Charles Knight, Joey Knight, and the infamous twins, Jess and Jeff Knight․  The whole family is in and out of prison constantly.   But the main thing is do they have a propensity for violence in the community, they and their friends?  ․ [¶] [Appellant] is threatened by members and friends of the Knight family.   You have to understand that the Knight family is the—I think Sergeant—or Detective Hale said the Knight family is the meanest, baddest family in West County.  [¶] So friends—he was threatened by friends.   His wife received—Steve's wife received threats, both directly and indirectly, about ‘We're going to get—’ words to the effect ‘We're going to get Steve.’   So Steve is living in fear․”

Defense counsel continued:  “․ I really need to bring in the fact of all these threats to create the reason why Steve was afraid and why he wanted to leave the bar and actually why he did what he did.   Normally a juror might think, ‘Well, if Steve was punched by a bar patron—’ I mean if they don't hear about all this stuff, they're going to think, ‘Well, Tino was just a bar patron and he was a pallbearer in the Jackie Knight case, and that's it.   So he punched Steve once.’  [¶] Then he reached back for his crutch, and maybe they would think that—if they didn't hear about all the fear that Steve was undergoing of the Knights and Tino, then they might think that Steve acted excessively when he pulled out the gun and when he fired a shot in the direction of Tino.   And they might think that, ‘Well, Steve acted excessively because he had no reason to.   He should have just—’ maybe he should have just crawled out the front door.   That's the reason, and it goes right to the core of my case.   I haven't—I've prepared the case around this.”

The trial court excluded evidence of the violent reputation of the Knight family and friends.   The court concluded that this evidence was inadmissible under the statutes on character evidence (Evid.Code, §§ 1100 et seq.) and that, even if the evidence was admissible under these statutes, it should be excluded under Evidence Code section 352 as substantially more prejudicial than probative.   The court reasoned that an undue amount of time would be consumed identifying the Knights' friends and the group's violent acts, and that such evidence would tend to confuse the jury.   The court also ruled that the defense would be precluded from presenting evidence of threats against appellant from anyone other than Tino.   The defense conceded that Tino had never previously threatened appellant.

Consistent with these rulings, the court sustained the prosecutor's objections when appellant attempted to testify that his life had been threatened.   Appellant was prevented from testifying that his friend Davis had been murdered by a friend of the Knight's, and the jury was instructed to disregard appellant's testimony that, after Davis' murder, he had received a phone call saying “I was next.”

The court also refused to give appellant's proposed instruction to the jury that:  “One who has received threats against his life or person made by another is justified in acting more quickly and taking harsher measures for his own protection in the event of assault either actual or threatened, than would be a person who had not received such threats.  [¶] If in this case you believe that the family and friends of Jackie Knight Jr. made prior threats against the defendant and that the defendant, because of such threats, had reasonable cause to fear greater peril in the event of an altercation with Aukusitino Afamasaga, you are to consider such facts in determining whether the defendant acted reasonably in protecting his own life or bodily safety.”


Appellant's jury did receive a number of standard instructions on the basic rules of self-defense.   The jury was instructed in accordance with CALJIC No. 5.31, Fifth edition 1988, that:  “An assault with the fists does not justify the person being assaulted in using a deadly weapon in self-defense unless that person believes and a reasonable person in the same or similar circumstances would believe that the assault is likely to inflict great bodily injury upon him.”   This instruction reflects the established principle that “[t]o be exculpated on a theory of self-defense one must have an honest and reasonable belief in the need to defend.”  (People v. Flannel (1979) 25 Cal.3d 668, 674, 160 Cal.Rptr. 84, 603 P.2d 1;  see also In re Christian S. (1994) 7 Cal.4th 768, 773, 30 Cal.Rptr.2d 33, 872 P.2d 574 [“ ‘actual ’ ” and reasonable belief required];  Pen.Code, § 198 [“the circumstances must be sufficient to excite the fears of a reasonable person”].)

Additional standard instructions confirm that the “circumstances” bearing on the reasonableness of the defendant's actions are to be assessed from the defendant's point of view.   Defensive action may be justified in light of an apparent—as opposed to actual—danger of bodily harm, “if a reasonable person in a like situation, seeing and knowing the same facts, would be justified in believing himself in like danger.”  (CALJIC No. 5.51 (5th ed. 1988) [italics added].)   The defendant may use “all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge.”  (CALJIC No. 5.50 (5th ed. 1988) [italics added].)  “[I]n judging of the apparent danger with which defendant claimed he was confronted, each juror must put himself in the place of the defendant and decide as a ‘reasonable man’ whether he under like circumstances would have regarded himself as in imminent danger of great bodily injury.”  (People v. Waysman (1905) 1 Cal.App. 246, 249, 81 P. 1087 [italics added].)

 Thus, while it has been said that California applies an “objective” test in assessing the defendant's state of mind (see People v. Aris (1989) 215 Cal.App.3d 1178, 1196, 264 Cal.Rptr. 167;  Annot. (1989) 73 A.L.R.4th 993, 998, § 3), we are in fact in line with the majority of jurisdictions that employ an objective test which takes into account “the defendant's individual subjective point of view” (Maguigan, Battered Women and Self–Defense:  Myths and Misconceptions in Current Reform Proposals (1991) 140 U.Pa.L.Rev. 379, 409, 448).   The opinion in People v. Aris, supra, is mistaken, in our view, to the extent that it suggests otherwise.

Aris considered whether an expert opinion on the effects of battered women's syndrome was admissible to support the defendant's claim that she killed her husband because she reasonably feared that he presented an imminent danger.   The court concluded that the evidence was inadmissible, because it was “irrelevant to the issue of the reasonableness of the defendant's belief in the need to defend herself and the actions she took for that purpose.”   (People v. Aris, supra, 215 Cal.App.3d at p. 1197, 264 Cal.Rptr. 167.)   It reached that conclusion by distinguishing between cases of “perfect” self-defense, where a homicide is “justifiable” because the defendant actually and reasonably believes that deadly force is required, and cases of “imperfect” self-defense, where a homicide is partially “excused” because the defendant actually but unreasonably believes that such force is needed.   The court then reasoned that because “reasonable self-defense is a defense of justification rather than of excuse,” and because, as a theoretical matter, “[j]ustification declares the allegedly criminal act legal,” whereas excuse “declares the allegedly criminal actor not to be worthy of blame ․ [¶] ․ the questions of the reasonableness of a defendant's belief that self-defense is necessary and of the reasonableness of the actions taken in self-defense do not call for an evaluation of the defendant's subjective state of mind, but for an objective evaluation of the defendant's assertedly defensive acts.”  (Id. at p. 1196, 264 Cal.Rptr. 167.)

However, while it may be true that a defense of justification requires an objective evaluation of acts, whereas an excuse entails only a subjective evaluation of a person's state of mind (People v. Aris, supra, 215 Cal.App.3d at p. 1196, 264 Cal.Rptr. 167), the law of self-defense does not perfectly reflect the academic distinction between “justification” and “excuse.”   As noted by one of the authorities cited in Aris, “the case law on self-defense contains strains of both theories.”  (Fletcher, The Right and the Reasonable (1985) 98 Harv.L.Rev. 949, 956;  see also Schopp, et al., Battered Woman Syndrome, Expert Testimony, and the Distinction Between Justification and Excuse (1994) 1 U.Ill.L.Rev. 45, 91–113 [law of self-defense should encompass both theories].)   Evidence of individual circumstances which “helps the jury to understand why a defendant felt fear” is admitted in California and elsewhere, even though the test for reasonable self-defense is “supposed to be objective.”  (Note (1982) 34 Stan.L.Rev. 615, 619.)

The propriety of the defendant's acts cannot fairly be judged in the abstract, without any reference to the defendant's state of mind.   Even if such an analysis were feasible, it would be inconsistent with our standard jury instructions, which call for consideration of the defendant's individual circumstances—including the defendant's subjective perceptions and knowledge (CALJIC Nos. 5.50, 5.51)—in evaluating the reasonableness of his or her actions.   As our Supreme Court put it in People v. Davis (1965) 63 Cal.2d 648, 656, 47 Cal.Rptr. 801, 408 P.2d 129, a person who claims to have acted reasonably in self-defense must “prove his own frame of mind.”   It is thus incorrect to say that our law of “self-defense is not concerned with the reasonableness of the defendant's mental processes.”  (People v. Aris, supra, 215 Cal.App.3d at p. 1197, 264 Cal.Rptr. 167.)

 The circumstances to be considered from the defendant's point of view are not limited to those appearing at the scene of the incident.   It is well-settled that the relevant circumstances include antecedent threats against the defendant by the victim.  (People v. Moore (1954) 43 Cal.2d 517, 527–529, 275 P.2d 485;  People v. Pena (1984) 151 Cal.App.3d 462, 474–478, 198 Cal.Rptr. 819;  People v. Bush (1978) 84 Cal.App.3d 294, 302–304, 148 Cal.Rptr. 430;  People v. Torres (1949) 94 Cal.App.2d 146, 151–153, 210 P.2d 324;  see also People v. Graham (1923) 62 Cal.App. 758, 764–765, 217 P. 823;  People v. Bradfield (1916) 30 Cal.App. 721, 727–728, 159 P. 443.)   Evidence of such threats is admissible on the ground that a person who has received them may be “justified in acting more quickly and taking harsher measures for her own protection in event of assault, than would a person who ha [s] not.”  (People v. Moore, supra, 43 Cal.2d at p. 528, 275 P.2d 485.)   The jury is entitled to take such threats “ ‘into ․ consideration in determining whether the defendant acted in a manner in which a reasonable man would act in protecting his own life or bodily safety.’ ”  (People v. Torres, supra, 94 Cal.App.2d at p. 152, 210 P.2d 324.)


 The issue presented here is whether evidence of threats is likewise admissible where the threats have not been made by the victim, but by members of a group who in the defendant's mind are reasonably associated with the victim.   Appellant would have reasonably associated Tino with the Knight crowd and their threats because he knew that Tino had been a pallbearer at Jackie Knight's funeral, and that Tino had attacked him in revenge for Knight's killing.   With that foundation, appellant argues that he should have been able to introduce evidence of the threats to support his claim that, in shooting Tino, he had used no more force than a reasonable person in his situation would have thought was necessary to defend himself.  (See CALJIC No. 5.30 (5th ed. 1988) [defendant may use the degree of force “which would appear to a reasonable person, in the same or similar circumstances, to be necessary”].)

In support of their positions on the admissibility of the third-party threats, both sides cite People v. Gonzales (1992) 8 Cal.App.4th 1658, 11 Cal.Rptr.2d 267, which includes a discussion suggesting that the question is one of first impression.  (See id. at pp. 1663–1664, 11 Cal.Rptr.2d 267 [noting that Moore, Torres, and the other cases cited above held only that “a defendant asserting self-defense is entitled to an instruction on the effect of antecedent threats or assaults by the victim on the reasonableness of defendant's conduct”].)  Gonzales, however, is not directly on point.

The defendant in Gonzales sold heroin from his residence, and when the police broke through his front door to arrest him, he shot and wounded one of the officers.   Gonzales claimed that he fired his rifle in self-defense, thinking that the police “were robbers such as those who [had] broke[n] down his door and beat[en] and robbed him at gunpoint three days earlier.”   (People v. Gonzales, supra, 8 Cal.App.4th at p. 1661, 11 Cal.Rptr.2d 267.)   The trial court refused to give Gonzales' proposed jury instruction, along the lines of those approved in Moore and Torres, that one who has previously been assaulted may be justified in acting more quickly and harshly for his own protection in the event of an actual or threatened assault than one who has not.   The proposed instruction added that the jury could take into consideration the prior assault on Gonzales if it believed that he reasonably “fear[ed] greater peril in the event of an altercation with these same individuals than he would have otherwise.”  (Id. 8 Cal.App.4th at p. 1663, 11 Cal.Rptr.2d 267.)

The appellate court affirmed on the ground that the proposed instruction was incomplete and misleading.   The majority opinion concluded that the instruction was incomplete because it did not require the jury to find that Gonzales in fact mistook the officers breaking through his door for the individuals who had previously assaulted him.   The majority reasoned that the instruction was misleading because it “could be read to state that an individual who has been previously assaulted is justified in taking harsher measures for his own protection as to all the world than would a person who had not been so assaulted.   None of the cases cited stands for the proposition that one previously assaulted is entitled, for that reason, to shoot first and ask questions later in all situations.”  (People v. Gonzales, supra, 8 Cal.App.4th at p. 1664, 11 Cal.Rptr.2d 267.)   In a concurring opinion, Justice Work wrote that, contrary to the majority's implication, he believed “law abiding persons” claiming self-defense were entitled to “ ‘once bitten, twice shy’ ” jury instructions if they had previously been assaulted under similar circumstances.  (Id. at p. 1665, 11 Cal.Rptr.2d 267.)   However, Justice Work found such instructions inappropriate for Gonzales because his vulnerability to continued assaults stemmed from his possession of illegal drugs and the money generated from their sale.   (People v. Gonzales, supra, at pp. 1665–1666, 11 Cal.Rptr.2d 267.)

The Gonzales case is distinguishable on multiple grounds.   Gonzales evidently testified to the prior assault, so the appellate court had no occasion to decide whether a defendant can properly seek to prove his state of mind with evidence of conduct of persons other than the victim.   To the contrary, the court assumed, for purposes of its discussion of the jury instructions, that there was “no legal distinction” between cases involving antecedent threats by the victim, and cases involving antecedent assaults by third parties.  (People v. Gonzales, supra, 8 Cal.App.4th at p. 1664, 11 Cal.Rptr.2d 267.)   The court also found that any error in failing to give the proposed instruction was harmless, because the subject of the instruction had been “thoroughly aired” in closing arguments, in which both sides had presumed that a prior assault could have “colored Gonzales's perception of the second [assault] and justified his quick response.”  (Ibid.)  In stark contrast in the case at hand, not only did the jury never learn of the third-party threats, the prosecutor's closing argument used the lack of evidence of any threats to attack the plausibility of appellant's claim of self-defense.

We are not required, in any event, to decide whether a person who has been assaulted can thereafter “shoot first in all situations,” or whether only “law abiding persons” are entitled to certain jury instructions.   While both of those propositions are very questionable, we are called upon to determine only whether, if prior threats by the victim are admissible in cases of self-defense, prior threats by the victim's “crowd” are also admissible.

We conclude that both kinds of threats are equally relevant and admissible.   A person claiming self-defense is required to “prove his own frame of mind,” and in so doing is “entitled to corroborate his testimony that he was in fear for his life by proving the reasonableness of such fear.”  (People v. Davis, supra, 63 Cal.2d at p. 656, 47 Cal.Rptr. 801, 408 P.2d 129.)   The defendant's perceptions are at issue, and threats from a family and its friends may color a person's perceptions of that group no less than threats from an individual may color a person's perceptions of that individual.   A defendant who testifies that he acted from fear of a clan united against him is entitled to corroborate that testimony with evidence “tend[ing] in reason to prove” that the fear was reasonable.  (Evid.Code, § 210 [defining relevant evidence].)   Threats from the group on the defendant's life would certainly tend in reason to make the defendant fearful.   This is especially true where the group has a reputation for violence, and that reputation is known to the defendant.   Such threats are relevant to the defendant's state of mind—a matter “of consequence to the determination of the action” (ibid.)—and the trier of fact is entitled to consider those threats along with other relevant circumstances in deciding whether the defendant's actions were justified.

This conclusion is consistent with commentaries on the subject (see Kadish, Excusing Crime (1987) 75 Cal.L.Rev. 257, 275;  Comment (1937) 25 Cal.L.Rev. 459, 465), and with the decision in the case of People v. Lee Chuck (1887) 74 Cal. 30, 15 P. 322.   Lee Chuck was charged with murder in the shooting of Yin Yuen.   They were members of rival gangs.   Lee Chuck's defense was that he shot at Yin Yuen in self-defense, after the latter shot at him.   The eyewitness testimony was conflicting.   Lee Chuck was convicted of murder, and the judgment was reversed on appeal.   The opinion of the California Supreme Court reads in relevant part as follows:

“It appeared from the evidence of the prosecution that, at the time of the homicide, Lee Chuck was incased in a steel coat-of-mail, and was armed with four pistols.   These were brought in and displayed before the jury.   They were intended to have, and doubtless did have, great weight in convincing the jury that Lee Chuck had prepared himself for the deadly encounter in which Yin Yuen lost his life.   To explain this fact, and to show that the defendant had reason to think his life in danger, and for that reason, and not to prepare himself to make a murderous assault upon the deceased, defendant put on a coat-of-mail and armed himself, the defense offered to show that the Bo Sin Sear society and another organization of which Yin Yuen was a member, had threatened to take the life of defendant, and that defendant had been informed of the fact.   This evidence was objected to as incompetent, and the objection was sustained.

“This ruling cannot be maintained.   The fact of the extraordinary armor worn by the defendant at the time of the homicide was important evidence for the prosecution.   To refuse to permit the defendant to show that the preparation was for a different purpose, and for reasons which implied no intent to assault the deceased, was a denial of a most essential right.”   (People v. Lee Chuck, supra, 74 Cal. at pp. 34–35, 15 P. 322.)

 The circumstances of appellant's case are analogous to those in Lee Chuck.   Appellant was precluded from showing that he was armed at the time of the incident because his friend had been killed by a member of the “Knight crowd,” and he had received a threat that he “was next.”   Here, as in Lee Chuck, exclusion of the antecedent threats limited the defendant's “essential right” to argue that his actions were justified.

Lee Chuck establishes that under California law evidence of threats from the victim's associates may be used in support of a claim of self-defense “to show that the defendant had reason to think his life in danger.”  (People v. Lee Chuck, supra, 74 Cal. at p. 34, 15 P. 322.)   Accordingly, appellant and his wife could properly testify to the threats they received after Jackie Knight's killing, not only to show why appellant was armed on the evening in question, but also to indicate what reasonably might have been going through his mind when he lay dazed on the barroom floor and saw his assailant reach for a potentially-deadly weapon.   The jury was required to focus on his state of mind at that instant in judging whether he had used only the “force and means ․ which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appear[ed] to be imminent.”  (CALJIC No. 5.30 (5th ed. 1988).)   Appellant was “entitled to corroborate his testimony that he was in fear of his life.”  (People v. Davis, supra, 63 Cal.2d at p. 656, 47 Cal.Rptr. 801, 408 P.2d 129) with evidence of threats from the Knight crowd, and with evidence of their reputation for violence.   The character evidence, no less than the evidence of threats, tended to show that appellant's apprehension of great bodily harm was reasonable.

 The trial court erred insofar as it reasoned that evidence of the Knight crowd's reputation for violence was inadmissible under Evidence Code section 1101.   This statute only limits the use of character evidence to “prove ․ conduct on a specific occasion.”  (Evid.Code, § 1101, subd. (a).)  This limitation is irrelevant because the group's reputation was offered to explain appellant's state of mind, rather than to prove Tino's actual intentions.   Moreover, the statute does not limit “the admissibility of evidence offered to support or attack the credibility of a witness” (Evid.Code, § 1101, subd. (c)), and evidence of the group's reputation for violence lent credibility to appellant's claim that he lived in fear of them.

The People do not attempt to defend exclusion of the reputation evidence under Evidence Code section 1101, except to suggest that, by offering the evidence solely to support his claim of self-defense, appellant waived any argument that the evidence was offered to bolster the credibility of his professed fears.   However, there is no substance to this purported distinction because the credibility of appellant's fears was at the heart of his argument that he acted in self-defense.

The People contend that any relevance of antecedent threats to appellant's claim of self-defense was negated by his testimony that, before Tino punched him, he was “not scared” of Tino and thought that he “posed no threat.”   However, appellant made those statements only to explain why he took the shortest route out of the bar, even though it led in Tino's direction, and why he did not turn away when Tino approached him.   In context, those statements can be reconciled with appellant's testimony that he lived in fear of Tino and “the whole Knight crowd,” because it was the apprehension created by that fear that was prompting him to leave the bar in the first place.

Appellant's testimony was consistent with his claim of self-defense and with the use of the antecedent threats to substantiate that claim.   Neither by taking the closest door out of the bar, nor by standing his ground when Tino approached him, did appellant forfeit his right to defend himself.   Appellant said that he thought “everything could have been cool,” but even one who “know [s] that if he travels along a certain highway he will be attacked by another with a deadly weapon, and be compelled in self-defense to kill his assailant ․ has the right to travel that highway, and is not compelled to turn out of his way to avoid the expected unlawful attack.”  (People v. Gonzales (1887) 71 Cal. 569, 578, 12 P. 783.)  “A person threatened with an attack that justifies the exercise of the right of self-defense need not retreat․  This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene.”  (CALJIC No. 5.50.)

Appellant's state of mind before he was punched was not at issue.   At issue was his state of mind after the punch, when he pulled out his gun and shot at Tino.  (See People v. Aris, supra, 215 Cal.App.3d at p. 1189, 264 Cal.Rptr. 167 [justifiable homicide case turns on what the defendant actually and reasonably “perceives in the victim's behavior at the moment of the killing”].)   Evidence of antecedent threats is admissible when the threats are followed by some “overt act” that has placed the defendant in immediate danger.  (People v. Lombard (1861) 17 Cal. 316, 320;  see also People v. Yokum (1956) 145 Cal.App.2d 245, 260, 302 P.2d 406.)   Appellant's belief that he was not in imminent danger was dispelled by a punch in the face, and he was entitled to show how a reasonable person in his position would have evaluated the extent of that danger.  “In making that evaluation, the defendant is entitled to consider prior threats, assaults, and other circumstances relevant to interpreting the attacker's behavior.”  (People v. Aris, supra, 215 Cal.App.3d at p. 1189, 264 Cal.Rptr. 167.)

The People contend that evidence of antecedent threats by the victim's friends should be excluded on policy grounds to avoid declaring an “ ‘open season’ against such third persons regardless of their adoption or even awareness of such threats.”   The point, presumably, is that someone who has made threats “deserves” to be treated more harshly than someone who has not.   However, claims of self-defense have always hinged on the perceptions of the defendant, rather than on the intentions of the victim.   Because “[j]ustification does not depend upon the existence of actual danger but rather depends upon appearances” (People v. Clark (1982) 130 Cal.App.3d 371, 377, 181 Cal.Rptr. 682;  see also CALJIC No. 5.51), a defendant may be equally justified in killing a “good” person who brandishes a toy gun in jest as a “bad” person who brandishes a real gun in anger.   The test is one “of apparent necessity from the point of view of a reasonable person in the position of defendant as shown by any tenable view of the evidence.”   (People v. McGee (1947) 31 Cal.2d 229, 238, 187 P.2d 706 [italics added];  see also People v. Jackson (1965) 233 Cal.App.2d 639, 642–643, 43 Cal.Rptr. 817.)

 We next consider whether exclusion of the Knight crowd's threats and their reputation for violence can be upheld under Evidence Code section 352.   An accused does not have “ ‘a constitutional right to present all relevant evidence in his favor, no matter how limited in probative value such evidence will be so as to preclude the trial court from using Evidence Code section 352.’ ”  (People v. Babbitt (1988) 45 Cal.3d 660, 684, 248 Cal.Rptr. 69, 755 P.2d 253.)   However, “Evidence Code section 352 must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense.”  (People v. Reeder (1978) 82 Cal.App.3d 543, 553, 147 Cal.Rptr. 275.)   While determinations under this statute are generally within the trial court's discretion (see People v. Cudjo (1993) 6 Cal.4th 585, 611, 25 Cal.Rptr.2d 390, 863 P.2d 635;  People v. Hall (1986) 41 Cal.3d 826, 834, 226 Cal.Rptr. 112, 718 P.2d 99), the exercise of such discretion “should ‘favor the defendant in cases of doubt’ ” (People v. Burrell–Hart (1987) 192 Cal.App.3d 593, 600, 237 Cal.Rptr. 654).   Potentially-exculpatory evidence should not be excluded unless its probative value is “substantially” outweighed by the dangers of prejudice, confusion and undue consumption of time (Evid.Code, § 352;  see People v. Babbitt, supra, 45 Cal.3d at p. 688, 248 Cal.Rptr. 69, 755 P.2d 253).

 We conclude that exclusion of the evidence in question was a clear abuse of discretion under the foregoing standards.   The evidence was significantly probative on the central issue in the case:  whether appellant used the force “which would appear to a reasonable person, in the same or similar circumstances, to be necessary.”  (CALJIC No. 5.30.)   Appellant was entitled to present evidence of his circumstances so that the jury could see them from his point of view.   He was entitled to argue that the perceptions of a reasonable person in his position would have been colored by the Knight crowd's threats and their reputation for violence.

None of the considerations supporting the discretionary exclusion of relevant evidence substantially outweighed the probative value of the evidence at issue here.   Presentation of evidence at the heart of the defense would not have represented an “undue” consumption of time.   There was no risk of prejudice associated with the evidence.  “The prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against ․ [one party] ․ and which has very little effect on the issues.”   (People v. Wright (1985) 39 Cal.3d 576, 585, 217 Cal.Rptr. 212, 703 P.2d 1106 [internal quotation marks omitted].)   Evidence bearing on appellant's state of mind was highly probative, and had no “unique tendency” to evoke any emotional bias against the prosecution.   Evidence that appellant might have had reason to fear for his life would not have “confused the issue.”   It would have further illuminated the situation the jury was required to evaluate.

 Appellant was prejudiced by the erroneous exclusion of this evidence.   It is unnecessary to determine whether the error in this case was of constitutional dimension because the error was prejudicial even under the standard of People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243 [different result must have been “reasonably probable” in the absence of the error].

Evidence of the Knight crowd's threats and their reputation for violence would have placed appellant's defense in a substantially different light.   In the absence of this evidence, appellant's defense was reduced to the claim that he feared a deadly attack solely because his assailant was reaching for a crutch.   Appellant was deprived of the potentially crucial argument that harsher-than-normal measures were reasonable because of the prior threats.   He was also prevented from corroborating his testimony that he lived in fear.  (People v. Davis, supra, 63 Cal.2d at p. 656, 47 Cal.Rptr. 801, 408 P.2d 129.)   Appellant said that he lived “in hiding,” did not like to be alone, and carried a gun on the night of the incident “as a precaution” in light of what had happened to his friend Davis.   This testimony was far less credible without evidence of the prior threats from the Knights and their friends, including the anonymous threat in the wake of Davis' killing, which appellant attributed to the Knight crowd.

The error was magnified by the prosecutor's comment in closing argument on the lack of evidence of any antecedent threats.   The error was compounded by the additional error of denying appellant's proposed jury instruction on the relevance of those threats.   It is reasonably probable that the trier of fact would have had a materially different view of appellant's circumstances if this evidence had been admitted and this instruction had been given.

The People submit that these errors were harmless because appellant “did not have to rely on prior threats or assaults to create a doubt as to the reasonableness of his conduct.   He had something much better—a conceded present assault by the victim himself.   That others had threatened appellant in the past pales in comparison to a[n] unprovoked punch in the face by an acknowledged enemy in the present.”   It is true that, having been assaulted by Tino, appellant had grounds for claiming that he acted in self-defense without the additional evidence in question.   However, appellant was entitled to fairly present his entire defense, and to have the jury consider all of the relevant circumstances in deciding whether the degree of force he employed was reasonable.  (CALJIC Nos. 5.30, 5.31.)

The People assert that there were two separate incidents that could have supported the conviction for assaulting Tino—one in the bar, and one outside in the parking lot—and that “appellant's defense to this latter assault was to deny it and say he fired in the air.”   They submit that any error in connection with the excluded evidence was harmless because that evidence “had no bearing on this defense [to the latter assault], which we must presume the jury rejected.”

However, appellant's theory of self-defense applied to both of the alleged assaults.   Appellant denied that he pursued Tino out of the bar, and he testified that he fired his gun in the parking lot because “I don't know exactly what [Tino] was going to do.   All I know is I was trying to scare him away so I can get away.”   Appellant would not necessarily have forfeited his claim of self-defense even if he had pursued Tino, because a “person may pursue [his] assailant until he has secured himself from danger if that course ․ appears reasonably necessary.”  (CALJIC No. 5.50.)   In any event, the excluded evidence bore equally on what a reasonable person in appellant's shoes might have thought was “reasonably necessary” to repel Tino inside and outside of the bar.   Moreover, it is clear that the jury convicted appellant for his conduct inside the bar, because they found him guilty of assaulting the other bar patron, Darrell Nordahl, with the first shot he fired after Tino punched him.


In light of appellant's admission that he brought the gun into the bar, he could not claim any valid defense to the charge of possession of a firearm by an ex-felon (Pen.Code, § 12021) on the ground that he possessed the weapon only while in “imminent peril ․ without preconceived design ․ for a period no longer than that in which the necessity or apparent necessity to use it in self-defense continue[d].”  (People v. King (1978) 22 Cal.3d 12, 24, 148 Cal.Rptr. 409, 582 P.2d 1000;  see also People v. Coffman (1986) 184 Cal.App.3d 1539, 1544, 229 Cal.Rptr. 441;  People v. McClindon (1980) 114 Cal.App.3d 336, 339–340, 170 Cal.Rptr. 492.)   However, the prejudice to appellant's defense against the charge of assaulting Tino dictates reversal of the entire judgment apart from the conviction for illegal possession of the gun.

Appellant was convicted of assaulting Nordahl, a bystander, solely on the basis of his actions toward Tino, and if the jury had found that appellant's actions toward Tino were justified, he would likewise have been exonerated for the injury to Nordahl.  (See People v. Levitt (1984) 156 Cal.App.3d 500, 507, 203 Cal.Rptr. 276 [defendant guilty of no crime if legitimate act of self-defense causes inadvertent injury to innocent bystander];  People v. Mathews (1979) 91 Cal.App.3d 1018, 1023–1024, 154 Cal.Rptr. 628 [same].)   Possession of a firearm by an ex-felon was not a “serious felony” supporting the five-year enhancement under Penal Code section 667 for a second serious felony conviction.  (See Pen.Code, § 1192.7, subd. (c)(8) [“serious felonies” include “any felony in which the defendant personally uses a firearm”];  People v. Cobb (1983) 139 Cal.App.3d 578, 588–589, 188 Cal.Rptr. 712 (dis. opn. of Franson, A.P.J.) [violation of Pen.Code, § 12021 is not a “serious felony” within the meaning of Pen.Code, § 1192.7];  see also In re Pritchett (1994) 26 Cal.App.4th 1754, 1757, 33 Cal.Rptr.2d 296 [distinguishing between possession and use of a firearm];  People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1413–1414, 273 Cal.Rptr. 253 [same].)

The judgment of conviction for possession of a firearm by an ex-felon is affirmed;  the balance of the judgment is reversed.

PERLEY, Associate Justice.

ANDERSON, P.J., and POCHÉ, J., concur.