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Court of Appeal, Fourth District, Division 3, California.

IN RE: CHRISTIAN S., A Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. CHRISTIAN S., Defendant and Appellant.

No. G011579.

Decided: November 06, 1992

Stephen Gilbert, Santa Monica, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Pat Zaharopoulos, Supervising Deputy Atty. Gen., and Garrett Beaumont, Deputy Atty. Gen., for plaintiff and respondent.


Christian S. appeals from a judgment making him a ward of the court after a petition was sustained charging him with the second degree murder of Robert Elliott.   After being terrorized by Elliott—a “skinhead”—for about a year, Christian started carrying a gun.   When Elliott chased him on the beach one day, repeatedly threatening “to get him” and challenging Christian to shoot, he did.   Christian contends the doctrine of “imperfect self-defense” was established, negating the presence of malice aforethought.   Without that element, he contends the offense could only be voluntary manslaughter.   We agree and reverse.


By appearance and reputation, Elliott was a “skinhead.”   Frequently in gangs, skinheads are easily identified by their distinctive dress, hair, tattoos, and swastikas.   In addition, Elliott was closely associated with several individuals who previously had violent “run-ins” with Christian since 1988.   For instance, shots were fired into Christian's bedroom on two separate occasions, and, on another occasion, he was shot at while walking on the beach.

The feud between Christian and Elliott had simmered, with increasingly frequent flare-ups for over a year before the shooting.   The animosity intensified in June 1990, when the window in Elliott's new truck was smashed.   He blamed Christian and made no secret of his desire to “beat him up.” 1

One witness testified that Christian kept a shotgun next to his bed during the summer of 1990.   Although he bragged to a few individuals that he was in a gang and could be violent, Christian was clearly scared of Elliott, his friends, and their threats.

Both Elliott and Christian attended the same beach party on September 5, just before the start of the school year.   Elliott confronted Christian, again accusing him of smashing his truck window.   Christian denied any wrongdoing, but struck Elliott.   Elliott fought back, and Christian ran away.

His mother later testified that Christian was terrified when he returned home.   He was convinced he was about to be killed and wanted a gun.   A friend and a neighbor confirmed that Christian was fearful and agitated.   Christian showed this friend the shotgun he kept in his room and said he intended to acquire more weapons.

The first day of school offered no relief.   Two of Elliott's friends—nonstudents—showed up toward the end of the day, followed Christian to his classroom, and then threatened him after class as he cowered in a corner behind a teacher.

That night, he told his mother that Elliott's friends had accosted him at school and threatened him.   He also talked to an adult friend, Steve Mabury, about this incident.   Christian described his assailants as two tattooed, muscular skinheads.   He said he had fought Elliott at the beach the day before and Elliott and “two bigger dudes from Venice” were threatening him and his family.   He was shaking and said he was afraid for his life.   He felt he needed a pistol and asked Mabury for an old one that Mabury's father owned.   Mabury was hesitant about giving it to Christian, but did so after Christian told him he did not “ ‘want to shoot these people, but if they're endangering my life and it comes down to him or me,’ then he would shoot them.”

Early the next morning, another friend of Christian's was driving past Dana Strands Beach when he noticed Christian darting between trees, hiding behind them in the process.   He stopped and asked Christian what he was doing.   Christian ran over and jumped into the car, begging for a ride to school.   He was shaking with fright.   He showed the driver the pistol Mabury had given him.   Not wanting to get involved, the driver quickly dropped Christian off at school.

Once at school, Christian showed a girl and three male friends the pistol he carried.   To the girl, he bragged that Elliott would not “mess with him anymore.”   To one fellow, he begged for help, saying the gun was to protect him from a gang that had been harassing him.   But this friend also did not want to get involved, and told him so.   The second fellow—who had already seen Christian's shotgun—was told the pistol was to be used to kill Elliott and one of his friends.   The third fellow was told that someone was after Christian.

Arthur Smith, vice principal of Dana Hills School, heard of the incident that occurred on the first day of school, and approached Christian about it.2  Christian downplayed the incident, indicating the young men were nonstudents who had come on the campus after the fight between Christian and their friend the day before school started.   His opinion was that their appearance at school would not be repeated because the underlying incident was an “off-campus issue.”   He did not appear fearful or nervous.   Smith criticized Christian's response to their presence.   He felt Christian should have immediately notified him of the nonstudents' presence as their mere entry on the campus was a violation of the law.

The next day was Saturday, and another party was planned at the beach.   Several of Christian's friends were there, and Christian began talking with one young man about the fight he had with Elliott.   He had the pistol with him and repeated that he was scared of Elliott, who was after him.   This young man—knowing Christian was prone to exaggeration—told him he was “crazy,” but Christian insisted he would use it “if the guy came down [to the beach]․”

Suddenly, Elliott and another friend, Jeff Dash, appeared at the top of a hill, overlooking the beach.   Dash began running down the hill towards them,3 and Christian jumped up, pulled the pistol and aimed it at the running figure.   Christian's friends yelled at him that it was Dash, not Elliott.   Christian relaxed and dropped his hand, holding the pistol to his side.   He then spotted Elliott, running down the hill behind Dash and pointed the pistol toward him, cocking it as he aimed.   He yelled at Elliott, “ ‘Just get out of here Dude, get out of here, [sic ] I don't want to shoot you, just go home, just leave.’ ”   His finger was on the trigger and both hands were shaking.

Elliott stopped in his tracks, and yelled back that he wanted $50 for the broken window,4 and that would end the problem.   Christian yelled he did not have anything to do with the window.   Elliott shouted, “ ‘You won't shoot me,’ ” but looked scared when he said it.   The two of them stood face to face, shouting at each other.   Christian told him, “Just get out of here—I don't want to shoot you;  just go home.”   Elliott smiled as he retorted, “ ‘Go ahead and shoot me.’ ”   Christian looked scared, and his voice wavered when he spoke.   He responded with “[t]ell your gang to stop beating me.   Just leave me alone, I didn't break your window.”

Elliott taunted, “ ‘You don't have the guts to pull that trigger.   Go ahead.’ ”   Christian said that he did not want to shoot, but he would if he had to.   Finally, he dropped his hand, turned and said, “I'm going home.”   Elliott started walking down the path to the beach;  Christian was picking up his belongings and moving off down the beach, refusing the others' offers to take his pistol.

Suddenly, Elliott ran at Christian, saying, “ ‘You're not getting away from me this time, I'm going to get you.’ ”   Christian took off down the beach with Elliott in hot pursuit.   Dash, who had been standing by during the confrontation, decided to circle back up the cliff, hoping to “head him [Christian] off at the end of the stairs” and “kick his ass.”   Meanwhile, Elliott ran down the beach after Christian, yelling he was going to kill him.

The chase passed three separate individuals who were visiting the beach that Saturday.   The first to be passed overheard Elliott tell Christian that he was going to get him.   They raced past this first man, who saw Christian stop dead in his tracks and point the gun at Elliott.   The second observer thought Christian was running out of steam, as he appeared tired.   Elliott slowed down, walking towards Christian briefly.   Then Christian turned and ran again.   Elliott took off after him, about 20 to 30 feet behind, and followed him down into a gully.

Elliott was closing the gap between them when Christian reached a slight plateau at the end of the gully, turned and aimed his pistol at Elliott.   He shook so badly that he had to drop down on one knee to steady the gun.   Elliott halted, and the two of them shouted at each other.   Elliott seemed to be shifting his weight between his legs or taking small, slow steps forward, while egging him on, saying, “ ‘You pussy, come on, shoot me, you won't shoot me.’ ”   They were about 20 feet apart, and Christian held the pistol with both arms extended, sighting down the barrel at Elliott, who was unarmed and held his hands at his sides or crossed in front of him.   Christian knelt there for about 15 seconds, brushing the hair back from his eyes at one point.   He pulled the trigger, and Elliott fell dead.

Christian ran to a car and drove away.   At a gas station, he surrendered to a deputy sheriff;  he was red-faced and shaking.   He talked incessantly, although the officer tried to calm him.   Christian kept repeating that he was protecting himself from a guy who had threatened him, that he had not wanted to shoot him.5

The court made no factual findings at the time of the verdict.   However, at the conclusion of the hearing on the motion following the verdict, the court declared it had made some findings preparatory to reaching the verdict.   The court found that Elliott had not actually been involved in shooting Christian's window, or in the prior acts of violence against Christian.   It also relied heavily on the fact that Elliott stopped each time 6 Christian pointed the gun at him.   Next, the court emphasized the substantial physical distance between the two at the moment the shot was fired.   Finally, the court focused on the substantial interval during which Christian aimed at Elliott before firing, concluding he had sufficient time to carefully consider what he was doing.


Malice and the Honest But Unreasonable Belief of Imminent Harm

The People contend an honest but unreasonable belief in imminent harm was eliminated as a defense by Proposition 8 and related legislation.   Alternatively, they argue the court's implied finding of malice aforethought was a factual determination which was supported by substantial evidence;  and thus, we cannot disturb this finding.   Christian claims the trial court's finding of malice must be reversed because the record unequivocally established that he fired the gun fearing Elliott was about to seriously harm him.   We agree with Christian and reverse.

The Effect of Proposition 8 and Related Laws

 In 1982, Proposition 8 created Penal Code section 25,7 which codified the electorate's clear intention to eliminate the defenses of diminished capacity and diminished responsibility due to voluntary intoxication and mental defect or disorder.   In the same year, sections 28,8 29 9 and 188 10 were amended to conform to section 25.11  As interpreted in People v. Saille (1991) 54 Cal.3d 1103, 2 Cal.Rptr.2d 364, 820 P.2d 588, those provisions bar the “reduction of what would otherwise be murder to nonstatutory voluntary manslaughter due to voluntary intoxication and/or mental disorder.”  (Id. at p. 1107, 2 Cal.Rptr.2d 364, 820 P.2d 588.)  Saille specifically declined to address the effect of these amendments upon the “so-called ‘imperfect self-defense’ doctrine [which reduces] an intentional killing from murder to manslaughter when a person kills under an honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury.”  (Id., fn. 1.)   And, in People v. Bacigalupo (1991) 1 Cal.4th 103, 2 Cal.Rptr.2d 335, 820 P.2d 559 (vacated and remanded with instructions on other grounds in Bacigalupo v. California (1992) 506 U.S. 802, 113 S.Ct. 32, 121 L.Ed.2d 5), the court presumed unreasonable self-defense was still viable, although it rejected the defense in that factual setting because the underlying crime was robbery, not murder.  (People v. Bacigalupo, supra, 1 Cal.4th at pp. 125–126, fn. 4, 2 Cal.Rptr.2d 335, 820 P.2d 559.)

The People advocate we expand the purview of sections 25, 28, 29 and 188 beyond their literal terms to include the imperfect self-defense doctrine, arguing it is but another “diminished responsibility” defense which the new statutes were designed to eliminate.   After a careful examination of those provisions and the origin and purpose of the doctrine, we conclude such an expansion is unwarranted.

 Malice aforethought is defined as “a deliberate intention unlawfully to take away the life of a fellow creature.   It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart․”  (§ 188.)   Thus, the burden is on the prosecution to prove that, at the time of the killing,12 the accused deliberately intended to unlawfully end the life of another, or he or she intended to commit an act—the natural consequences of which are dangerous to human life—with knowledge of, and conscious disregard for, that life.  (See CALJIC No. 8.11.)   Nothing further need be shown, and evidence of intoxication or mental disease cannot be admitted for the purpose of showing the accused's capacity to form any mental state, i.e., there is “no defense of diminished capacity, diminished responsibility, or irresistible impulse․” (§§ 28, subd. (b) [italics added], 188.)

The question arises:  What effect does Christian's sincere fear of imminent harm have on his alleged intent to kill?   If the policy and elements behind the imperfect self-defense doctrine are analogous to those of diminished capacity, then the prohibition of sections 25, 28 and 188 should apply.   However, if the background and effect of the imperfect self-defense doctrine are more analogous to self-defense—to which sections 25, 28 and 188 unquestionably do not apply—then Proposition 8 and its progeny have no effect on the doctrine.

What distinguishes the concept of imperfect self-defense from that of diminished capacity is the absence of malice.  People v. Flannel (1979) 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1, which initially developed the doctrine as a defense, “emphasize[d] the close relationship between a defendant's claim of self-defense and the unreasonable belief doctrine.”   (Id. at p. 677, 160 Cal.Rptr. 84, 603 P.2d 1.)   The Supreme Court specifically rejected the idea that unreasonable belief is but a subordinate part of sudden quarrel or voluntary intoxication.  (Ibid.)

 “The focus of Flannel is that a person who honestly believes there is an imminent threat to his own life or the lives of others cannot harbor malice.”  (People v. Uriarte (1990) 223 Cal.App.3d 192, 197, 272 Cal.Rptr. 693.)   Under either unreasonable belief or self-defense, the fatal act is not done with the intention to kill unlawfully.  (Ibid.)  The unreasonable belief doctrine focuses on the accused's use of force to block the infliction of deadly harm;  diminished responsibility rests on the influence of either a substance or an uncontrollable rage on the person's ability to intend any act.   Diminished capacity or responsibility—at least, before 1981—reduced the culpability of one who unlawfully and intentionally killed, but did so under mitigating circumstances.   Unreasonable belief eliminates the intent to kill unlawfully.13  There is no exoneration from criminal culpability, however, because the killing occurred under the unreasonable, as opposed to reasonable, belief that self-defense was necessary.

The imperfect self-defense doctrine was not developed from, nor is it akin to, diminished capacity or responsibility, a concept necessarily dependent on the vagaries of psychiatry.  (See People v. Wolff (1964) 61 Cal.2d 795, 802, fn. 4, 40 Cal.Rptr. 271, 394 P.2d 959.)   Quite to the contrary, imperfect self-defense emanates from an individual's desire to protect himself;  a rational need which, unfortunately, in our day and age, is omnipresent.14  This is not some vigilante who, after running his opponent to ground with the full intention of killing him, hopes the adversary will “make his day” by making a suspicious movement.   Instead, this is a person who, after being terrorized over the course of a year, tries to protect himself in circumstances which, absent the terrorizing, he would not have mistaken the need to pull the trigger.   The policy reasons behind the elimination of diminished capacity are not met by the elimination of imperfect self-defense.15

Sufficiency of the Evidence

We must determine whether substantial evidence supports the trial court's implied finding of malice.  (See People v. Jones (1990) 51 Cal.3d 294, 313, 270 Cal.Rptr. 611, 792 P.2d 643.)   Although the court did not voice any factual findings at the time of the verdict, the court stated to counsel that in reaching its verdict, it had to consider “․ the concept of honest-but-unreasonable belief.   I have to look at those aspects.  [¶] And note that if it's true that he thinks honestly that he is in fear of great bodily injury or death and he takes life, inherent in that activity is what?   The intent to kill.”   We are therefore made aware of the trial court's mistaken definition of intent to kill which it used in reaching its verdict.

Malice is an element of murder.  (See CALJIC No. 8.10.)   But an unreasonably held belief in the need to defend oneself cannot coexist with malice.   As was resolved in People v. Flannel, supra, 25 Cal.3d at page 679, 160 Cal.Rptr. 84, 603 P.2d 1, the mental state is one or the other;  it cannot be both.   If there is malice—the unlawful intent to kill—then there is not the sincere, mistaken fear of imminent peril.  (Id. at pp. 675–676, 160 Cal.Rptr. 84, 603 P.2d 1.)  “Given this understanding of malice aforethought, we cannot accept the People's claim that an honest belief, if unreasonably held, can be consistent with malice.”  (Id. at p. 679, 160 Cal.Rptr. 84, 603 P.2d 1.)

Thus, when the evidence is uncontroverted—as it is here—that the accused was honestly, although unreasonably, afraid of imminent and serious harm by the victim, malice aforethought cannot simultaneously be present.   The verdict implied the presence of malice, but the evidence clearly revealed an honest but unreasonable fear of immediate harm by Elliott.   Elliott's repeated threats and his continued pursuit of Christian in the face of his request to be left alone confirmed the immediacy of that risk.   And the court's query indicated its acceptance of Christian's honest belief.   It was not particularly reasonable, considering Christian was armed and Elliott was not,16 but the sincerity with which the belief was held is undisputed.   The judge's rhetorical question reflects a basic misunderstanding of the concept, as indicated by the statement that an honest but unreasonable belief in the need to defend carries with it the unlawful intent to kill.   It does not.   By using the wrong definition of the intent to kill necessary to constitute malice, the trial court reached a verdict which cannot stand.


The finding of second degree murder is reduced to voluntary manslaughter, and the matter is remanded for a new dispositional hearing in light of our decision.


1.   Christian admitted to several people that he was responsible for the damage, but denied any involvement to Elliott.

2.   The vice principal was familiar with Christian, having had numerous conversations with him and monthly contacts.

3.   According to Dash, Elliott had not mentioned anything that morning about the broken window or the fight with Christian.   However, he had discussed it with Dash on many occasions before that morning, and had said he wanted revenge.   When Dash and Elliott arrived at the beach, Elliott asked Dash if he could see Christian on the beach once they were on the bluff.   Dash told Elliott he could not see Christian, and then challenged Elliott to a race down to the beach.

4.   Elliott's mother testified that he had to pay a $50 deductible to repair the broken window on his new blue pickup.

5.   The officers later searched Christian's room, finding .22 caliber ammunition and a note he had written sometime in the remote past.   It said, “Every time you come to Strands, We [sic ] will find you, and shoot you.   If we don't find you, we will tweek [sic ] your truck and Fuck it up real bad.   I have a 12 gauge (sawed off) And [sic ] I'm going to use it.   My home boys pack em [sic ] too.   So if you eagerly want to die, Just [sic ] keep coming to Strands” It is undisputed that the note was never sent, and its date of origin preceded the window smashing incident by an unknown amount of time.

6.   We note there is a question whether substantial evidence exists to support this point.   The testimony from the second observer was that Elliott only slowed when Christian pointed the gun at him the second time.   The testimony is in dispute whether Elliott stopped completely on the third encounter;  one witness thought he was moving forward slowly, as if commencing a fight, while another witness testified he was stark still.   However, the court only made the single finding that the victim stopped each time Christian did, and said that it found Dash's testimony particularly persuasive.   Dash did not testify to any of the intermediate steps of the chase;  he ran up the bluff to cut off Christian and could not see what was transpiring between Christian and Elliott from the time of the initial encounter until Christian aimed the gun and fired.

7.   Penal Code section 25 reads, “(a) The defense of diminished capacity is hereby abolished.   In a criminal action, ․ evidence concerning an accused person's intoxication, trauma, mental illness, disease, or defect shall not be admissible to show or negate capacity to form the particular purpose, intent, motive, malice aforethought, knowledge, or other mental state required for the commission of the crime charged.”All further section references are to the Penal Code.

8.   Section 28, subdivision (b) reads, “As a matter of public policy there shall be no defense of diminished capacity, diminished responsibility, or irresistible impulse in a criminal action or juvenile adjudication hearing.”

9.   Section 29 declares, “In the guilt phase of a criminal action, any expert testifying about a defendant's mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged.   The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.”

10.   Section 188 now states, “Such malice may be express or implied.   It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.   It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.  [¶] When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought.   Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice.”

11.   For a more detailed look at the history of the legislation, see People v. Bobo (1990) 229 Cal.App.3d 1417, 1437–1440, 3 Cal.Rptr.2d 747, and People v. Whitler (1985) 171 Cal.App.3d 337, 340–341, 214 Cal.Rptr. 610.

12.   Because malice requires the specific intent at the time of the killing, there is little, if any, relevance to the contents of the note found in Christian's bedroom.   We note the trial court did not rely on the note in its findings or verdict.

13.   The term, “ ‘unlawfully’ in the express malice definition means simply that there is no justification, excuse, or mitigation for the killing recognized by the law.”  (People v. Bobo, supra, 229 Cal.App.3d at p. 1441, 3 Cal.Rptr.2d 747.)

14.   “One of the lessons of the Los Angeles riots that many people have absorbed almost unconsciously but that few are eager to talk about in public is that at certain times the most effective—perhaps the only—way to protect yourself and your property is, well, to protect yourself and your property․  [¶] Most people are under the impression that the police have a positive duty to protect citizens․  [¶] [But w]hen push comes to shove, you're responsible for defending yourself.”  (Bock, Beating the Protection Racket, Orange County Register, (July 19, 1992) p. K4, cols. 2–4.)

15.   We acknowledge that People v. Saille, supra, 54 Cal.3d at p. 1114, 2 Cal.Rptr.2d 364, 820 P.2d 588, in interpreting section 188, holds that malice aforethought is established once an unlawful intentional killing is shown.   Evidence of mitigation, in the form of intoxication or mental disease, is therefore no longer relevant in determining the culpability of the perpetrator.   However, a killing from a sudden quarrel or heat of passion negates malice under section 192.   As discussed above, imperfect self-defense is not evidence of mitigation;  the honest but unreasonable fear of imminent harm negates the unlawful intent to kill.   Thus, Saille does not apply to imperfect self-defense.

16.   Christian and Elliott were approximately the same size:  Elliott was 5 feet 8 inches tall and weighed 152 pounds while Christian, who was two years younger than Elliott, was 5 feet 10 inches tall with a weight of 157 pounds.

SILLS, Presiding Justice.