People v. Schuller

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JASON CARL SCHULLER,

Defendant and Appellant.

S272237

Third Appellate District

C087191

Nevada County Superior Court

F16000111

August 17, 2023

Justice Groban authored the opinion of the Court, in which

Chief Justice Guerrero and Justices Corrigan, Liu, Kruger,

Jenkins, and Evans concurred.

Justice Liu filed a concurring opinion, in which Justice Evans

concurred.

PEOPLE v. SCHULLER

S272237

Opinion of the Court by Groban, J.

California defines the crime of murder as the unlawful

killing of a human being with malice aforethought. The

prosecution here relied on a theory of express malice, which

requires an intent to unlawfully kill. (See People v. Lasko (2000)

23 Cal.4th 101, 107 (Lasko); Pen. Code, § 188.) Under the

doctrine of imperfect self-defense, however, “[i]f a person kills

. . . in the unreasonable but good faith belief in having to act in

self-defense, the belief negates what would otherwise be malice,

and that person is guilty of voluntary manslaughter . . . , not

murder.” (People v. McCoy (2001) 25 Cal.4th 1111, 1116.) A

defendant charged with murder is entitled to an instruction on

imperfect self-defense when there is substantial evidence to

support the theory. (See People v. Breverman (1998) 19 Cal.4th

142, 162 (Breverman).)

In this case, the Court of Appeal found that the trial court

erred in denying defendant’s request for an instruction on

imperfect self-defense. The court further concluded that the

error was a matter of state law only, and thus subject to the

“reasonable probability” standard for evaluating prejudice set

forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).

The court explained, however, that even if it were to assume the

instructional error was subject to the stricter “beyond a

reasonable doubt” standard that applies to federal

constitutional errors (see Chapman v. California (1967) 386

U.S. 18, 24 (Chapman)), it would still find Schuller had suffered

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no prejudice based on the “overwhelming evidence that [he] was

not acting in any form of self-defense.” (People v. Schuller (2021)

72 Cal.App.5th 221, 238 (Schuller).)

We granted review to decide the appropriate standard for

evaluating prejudice in this context. We now hold that when the

record contains substantial evidence of imperfect self-defense,

the trial court’s failure to instruct on that theory amounts to

constitutional error and is thus subject to review under the

federal Chapman standard. “A jury misinstruction that relieves

the prosecution of its burden to prove an element of the crime —

by either misdescribing the element or omitting it entirely —

violates [the federal Constitution].” (People v. Hendrix (2022)

13 Cal.5th 933, 942 (Hendrix); see People v. Wilkins (2013)

56 Cal.4th 333, 349 (Wilkins) [“incomplete” or “misleading”

instruction on element of the crime constitutes federal

constitutional error].) When imperfect self-defense is at issue,

the malice element of murder requires the People to show the

absence of that circumstance beyond a reasonable doubt.

(People v. Rios (2000) 23 Cal.4th 450, 463 (Rios).) Thus, when

there is substantial evidence to support the theory, the failure

to instruct on imperfect self-defense amounts to an incomplete

instruction on an actual element of murder, namely malice. In

the absence of such an instruction, jurors would have no reason

to conclude they cannot find malice (and thus cannot return a

verdict of murder) if they harbor a reasonable doubt as to

whether the defendant acted in the actual, but unreasonable,

belief in the need for self-defense. Because this form of

misinstruction precludes the jury from making a finding on a

factual issue that is necessary to establish the element of malice,

it qualifies as federal error. (See In re Winship (1970) 397 U.S.

358, 364 (Winship) [“the Due Process Clause protects the

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accused against conviction except upon proof beyond a

reasonable doubt of every fact necessary to constitute the crime

with which he is charged”]; Neder v. United States (1999)

527 U.S. 1, 10 (Neder) [“erroneous instruction [that] precludes

the jury from making a finding on the actual element of the

offense” amounts to constitutional error].)

We further hold that the Court of Appeal’s harmless error

analysis did not comport with the standards for evaluating

prejudice required under Chapman, supra, 386 U.S. 18. As we

recently clarified in In re Lopez (2023) 14 Cal.5th 562 (Lopez),

that standard compels the reviewing court to reverse the

conviction unless it concludes that no “rational juror who made

the findings reflected in the verdict and heard the evidence at

trial could have had reasonable doubt regarding the findings

necessary to convict the defendant [absent the instructional

error].” (Id. at p. 591.) Because the court’s analysis indicates

that it did not “fully appreciate[] the proper standard for

harmlessness” (id. at p. 568), we reverse the judgment affirming

Schuller’s conviction and remand the matter with directions

that the court reconsider whether the failure to instruct on

imperfect self-defense was harmless beyond a reasonable doubt.

(See id. at p. 592 [remanding question of prejudice where court’s

analysis showed it did not apply the standard that Chapman

requires].)

I. BACKGROUND

The Nevada County District Attorney charged defendant

Jason Schuller with the first degree murder of W.T. and further

alleged that Schuller had personally used and discharged a

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firearm causing death. (Pen. Code, §§ 187, 12022.53.)1 Schuller

pleaded not guilty by reason of insanity and the case proceeded

to trial.

A. Trial Court Proceedings

1. Evidence at trial

a. Prosecution’s case-in-chief

Jesse McKenna, W.T.’s neighbor and close friend, testified

that Schuller visited W.T. frequently and had temporarily lived

at his residence. In early 2016, however, W.T. told McKenna

that Schuller was no longer welcome at his home. On the night

of March 20, 2016, McKenna returned from a dinner and was

surprised to see Schuller’s vehicle, a white Chrysler 300, parked

outside of W.T.’s home. Shortly after McKenna entered his

house, he heard multiple rounds of gunshots and then saw

Schuller’s car speed away from W.T.’s home.

As McKenna approached W.T.’s residence he saw W.T.’s

daughter H.T., who lived in a second-floor unit directly above

W.T., pacing in front of the window. McKenna knocked on H.T.’s

door and asked her if she had heard gunshots. She said she was

uncertain what she had heard, but that a noise had caused her

apartment to rattle. McKenna then went downstairs to check

on W.T. When he entered the residence, he saw “flames coming

out of [the] house” and W.T.’s burning body lying on the floor.

McKenna ran back to his house to retrieve a fire extinguisher.

When he returned, H.T. had come down to her father’s

apartment. As McKenna tried to put out the fire, he noticed that

all four burners of the gas stove had been opened and “turned

on full bore without flames,” like someone was trying to “blow

1

All further statutory citations are to the Penal Code.

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the place up.” McKenna called 911 and provided a description

of Schuller’s car.

H.T. testified that Schuller had become friends with her

father and started staying on his couch from time to time. On

the night of March 20, 2016, she observed Schuller’s car parked

outside her father’s apartment. Shortly thereafter, she heard a

succession of sounds like metal hitting metal coming from the

residence and then “a very loud sound that physically shook the

house.” She then observed Schuller’s vehicle leaving the home

at a high rate of speed. When H.T. entered the apartment, she

observed smoke and her father’s body lying on the ground

surrounded by shell casings, with his dentures out of his mouth.

Shortly after Schuller was seen leaving W.T.’s residence,

police began pursuing a white Chrysler 300 in the area.

Schuller was driving the vehicle and refused to stop, resulting

in a 38-mile high-speed pursuit that ended only after the

vehicle’s tires were punctured with strip spikes. The handgun

used in the shooting of W.T. was found in the car.

Investigating officers testified that 13 shell casings were

recovered from the area near W.T.’s body. A gun case, a gas can

and a large knife were found on the kitchen table. Although

there was significant blood spatter on the walls and floor, there

was no blood on the knife. W.T.’s cell phone was found under

the table with a bullet lodged in it. The apartment had

sustained fire damage and smelled of gas. Nevada County Fire

District Chief Jim Turner determined that gasoline had been

poured on the body and ignited. An autopsy revealed W.T. had

sustained nine gunshot wounds to the left side of his head, with

five shots entering the “facial area” and four shots entering

above his ear in the “cranial area.” W.T.’s body also exhibited

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significant burn injuries. According to the pathologist, the

nature of the burn markings indicated W.T.’s body had been

ignited after he was dead.

b. The defense’s case

Schuller testified that he met W.T. after moving from

Nebraska to California in 2013. Over the next few years,

Schuller lived with W.T. from time to time and visited him often.

In 2016, Schuller was injured in a car accident and began

experiencing visions of his dead ancestors and a “beautiful

light.” He described the light as “a gift of god” and had heard

voices telling him to be “careful who [he] share[d] the light with.”

Schuller stated that he believed he was sent to “pave the way

for the second coming . . . of Christ” and that a battle was being

fought with “Satan’s army.” In March of 2016, Schuller drove to

Nebraska in response to voices directing him to perform an

operation there. Schuller claimed that during his drive to

Nebraska he was shot at and attacked with grenades but did not

suffer any injuries.

While in Nebraska, Schuller visited his sister. She

testified that Schuller seemed to be experiencing visual and

auditory hallucinations at the time of the visit, telling her that

people were “following him” and telling him to shut up. His

sister also reported that Schuller appeared to be in fear for his

life and was uncharacteristically aggressive.

Schuller eventually decided to drive back to California.

One day before the killing of W.T., Nevada police officers

stopped Schuller on suspicion of reckless driving. Schuller told

the officers that three men were trying to attack him with

needles. He further stated that “the entire police force and

agencies of the world [we]re letting Satan” do something and

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commented on the “fake light.” At one point, an officer stepped

on an aluminum strip that produced a popping noise, causing

Schuller to believe a gunshot had been fired and that the officers

were trying to hurt him. The officers eventually allowed

Schuller to go, believing he was not a danger to himself or

others.

Schuller testified that he arrived back in California on

March 20 and went straight to W.T.’s house. After the two had

shared several drinks, W.T. asked Schuller to get rid of a firearm

that Schuller had stored at W.T.’s house. W.T. retrieved the gun

and placed it in a case on the kitchen table, asking Schuller to

take it with him when he left the next morning.

Schuller explained that he “ended up sharing the light

with” W.T., who initially experienced “over-whelming joy.”

Later in the night, however, Schuller shared the light with W.T.

again, but was unable to get the light back. Schuller testified

that W.T. looked outside with a smile on his face and said, “See,

I told you I could take it from him.” W.T. then pulled a knife

from a kitchen drawer and tried to “stab at [Schuller].”

Schuller grabbed the gun on the kitchen table and asked

W.T. if he was “Lucifer,” to which W.T. responded yes. Schuller

stated that he then put the gun down and said, “Yeah, right,

. . . . You’re not Lucifer.” As soon as Schuller set the gun down,

W.T. “went for the gun and raised the knife.” Schuller then

picked the gun up again, took a step back, and “pulled the

trigger.” Schuller said he was “in fear for [his] life” because W.T.

had a “big knife.”

Schuller was uncertain whether he fired more than one

shot but recalled the bullet hitting W.T. “right in the head and

he went down to the ground. The knife . . . f[ell] out of his hand.”

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Schuller testified that W.T. then “pushed himself up off the

ground,” which “shocked” Schuller, causing him to “jump[] back”

and “pull[ the trigger] four or five more times.” Schuller could

not recall how the knife got back on the table. When asked why

he shot W.T. four or five more times, Schuller testified he was

“scared” because W.T. had yelled “You f’d up” and was then able

to “push himself up . . . off the ground . . . without hesitation.”

After firing the second round of shots, Schuller retrieved

W.T.’s cell phone and attempted to call 911. However, he was

unable to unlock the phone, which kept ringing. Schuller then

heard a loud gasp and saw W.T.’s dentures fly at him, which

scared Schuller again, causing him to “pull the trigger three

more times.” Schuller continued trying to call 911 with W.T.’s

phone, but the phone kept ringing so Schuller shot it several

times. Schuller finally decided to leave the residence but felt “a

hundred thousand demons [sweep] through” him. Schuller

turned and saw a demon enter W.T.’s body. Schuller attempted

to “kill the demon” by pouring gasoline on W.T.’s body and

igniting it. Schuller then left the home to travel to Monterey.

On cross-examination, Schuller admitted that in his

initial statements to the police he never claimed to have shot

W.T. in self-defense because he “did not know who to trust.”

Instead, Schuller had told the police W.T. was gay and trying to

come on to him.

c. Prosecution’s rebuttal witnesses

A detective testifying as a rebuttal witness for the

prosecution explained that he had monitored calls Schuller

made to friends and family from jail after his arrest. According

to the detective, Schuller appeared “lucid and normal” during

his initial conversations about the case. In subsequent calls

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Schuller revealed that he intended to pursue a “mental health

defense.” After that intent became clear, the detective noticed a

difference in how Schuller talked in his conversations. He began

speaking “much more” about conspiracy theories, including “law

enforcement conspiring against him” and “angels and demons

. . . [a]ffecting things in his everyday life.”

The prosecution also called two forensic psychologists who

had been appointed by the court to evaluate Schuller. The first

psychologist opined that defendant was exaggerating or feigning

psychiatric distress. The psychologist did not believe Schuller

was mentally ill but acknowledged that his extensive drug use

could have caused hallucinations. The psychologist testified

that Schuller’s decision to burn W.T.’s body and then attempt to

evade police demonstrated knowledge of wrongdoing and an

understanding of consequences.

The second psychologist likewise testified that she

believed defendant was “malingering or exaggerating his mental

health condition.” The psychologist noted that during Schuller’s

initial recorded jailhouse conversations, he had discussed his

case at length but made no mention of any psychiatric

symptoms, hallucinations, seeing demons or any of the problems

that he later described to the psychologist.

2. Defense’s request for instruction on imperfect self-

defense

Prior to closing argument, the defense requested an

instruction on voluntary manslaughter based on imperfect self-

defense. The prosecution opposed, arguing that Schuller’s

testimony demonstrated that any alleged belief in the need to

defend himself was the result of delusions, and thus amounted

to a claim of insanity that could only be raised in the sanity

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phase of the trial. (See People v. Elmore (2014) 59 Cal.4th

121, 130, 146 (Elmore) [“the doctrine of unreasonable self-

defense is [not] available when belief in the need to defend

oneself is entirely delusional”; such a claim must instead be

raised at “a sanity trial”].)

The defense, however, argued that Schuller’s imperfect

self-defense claim was not based on “purely delusional belief[s]”

(Elmore, supra, 59 Cal.4th at p. 130), but rather was supported

by the objective circumstances of the crime scene. Specifically,

Schuller had testified that W.T. attempted to attack him with a

knife while reaching for a firearm, and a knife and an empty gun

case had been recovered from the kitchen table. According to

the defense, while Schuller’s testimony suggested his reactions

to W.T. may have been “distorted by mental illness,” there was

nonetheless sufficient evidence to support a finding that he

mistakenly believed the actual circumstances required him to

act in self-defense. (See id. at p. 146 [“defendants who

mistakenly believed that actual circumstances required their

defensive act may argue they are guilty only of voluntary

manslaughter, even if their reaction was distorted by mental

illness”].)

The trial court ultimately sided with the prosecution,

concluding that Schuller’s testimony demonstrated his “reaction

[to W.T.] was produced by the mental disturbance alone, which

is the very thing that the cases talk about as being for the sanity

phase, not for the guilt phase.” The court acknowledged that a

knife was found on the kitchen table but concluded that was

insufficient to warrant an instruction on imperfect self-defense.

The court did, however, instruct the jury that it could consider

evidence of Schuller’s mental condition “in deciding whether [he

had] acted with deliberation and premeditation.”

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3. Closing argument and jury verdict

Because Schuller had admitted that he intentionally shot

W.T. in the head and the trial court had denied his request for

an instruction on imperfect self-defense, the sole issue contested

at closing argument was whether Schuller should be found

guilty of premeditated first degree murder or second degree

murder.

The prosecution emphasized to the jury that “self-defense

was [not] an option . . . in this case” and that there was “no legal

self-defense argument that [it could] even consider.” The

prosecution explained that in light of the absence of any such

possible defense, the element of malice had been conclusively

established by Schuller’s admission that he repeatedly shot

W.T. in the head. The prosecution further contended that the

manner of the killing and Schuller’s subsequent attempts to

burn the body and evade the police showed he had acted not only

with malice, but also with deliberation and premeditation.

Finally, the prosecution discussed how the jury should evaluate

the “mental health evidence,” noting that multiple psychologists

had testified Schuller appeared to be exaggerating his condition

as a means to avoid criminal liability.

In response, the defense argued that Schuller’s testimony

showed he was suffering from a “severe mental health crisis”

that had caused him to believe W.T. was “a physical threat . . .

and that is why he killed.” The defense theorized that Schuller’s

“delusional state of mind” had led him to believe that “W.T. was

allied with forces of darkness” and “react[] to things that weren’t

there.” According to Schuller, this evidence raised at least a

reasonable doubt whether his “paranoid beliefs” had caused him

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to act out of a perceived fear for his life rather than with

deliberation and premeditation.

The jury found Schuller guilty of first degree murder.

Following the determination of guilt, the trial proceeded to the

sanity phase. The jury was unable to reach a decision on that

issue and a second jury was empaneled. The second jury found

that Schuller was legally sane at the time of the shooting.

B. Court of Appeal Proceedings

On appeal, Schuller argued the trial court erred in

refusing to instruct on imperfect self-defense because the

evidence showed his fear of W.T. was not based purely on

delusion. The appellate court agreed, concluding that Schuller’s

account of the “shooting was not entirely delusional.” (Schuller,

supra, 72 Cal.App.5th at p. 233.) The court explained that

Schuller had testified he feared for his life because W.T. had

come at him with a knife and a knife had been found at the scene

of the crime.

Having found error, the court next evaluated whether

Schuller had suffered prejudice. The parties disputed whether

the instructional error amounted to a violation of state law,

requiring the court to evaluate prejudice under the “reasonably

probable” standard articulated in Watson, supra, 46 Cal.2d 818,

or a violation of the federal Constitution, requiring prejudice to

be evaluated under the “beyond a reasonable doubt” standard

set forth in Chapman, supra, 386 U.S. 18. While acknowledging

some courts had applied the Chapman standard to a trial court’s

failure to instruct on imperfect self-defense (see People v.

Dominguez (2021) 66 Cal.App.5th 163; People v. Thomas (2013)

218 Cal.App.4th 630), the court found that our prior decisions in

Breverman, supra, 19 Cal.4th 142, and People v. Gonzalez (2018)

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5 Cal.5th 186 (Gonzalez), compelled Watson review. The court

further concluded, however, that the error was harmless under

both the Watson and Chapman standards.

Schuller filed a petition seeking review of the appellate

court’s finding that the failure to instruct on imperfect self-

defense was not prejudicial.

II. DISCUSSION

The sole question presented in this case is whether the

trial court’s error in declining Schuller’s request for an

instruction on imperfect self-defense was prejudicial.2 To

answer this question, we must address two issues. First, we

must decide what standard for evaluating prejudice —

Chapman or Watson — applies to this form of instructional

error. Second, we must assess the Court of Appeal’s finding that

the error was harmless.

2

Although the Court of Appeal noted that Schuller’s

instructional claim raised an apparent issue of first

impression — whether imperfect self-defense is available when

“a defendant’s story is that a real person attacked him, but there

are delusional components to the defendant’s description of

what happened” (Schuller, supra, 72 Cal.App.5th at p. 233) —

the People did not seek review of the court’s finding that it was

error to deny an instruction under such circumstances. Nor

have they raised that issue in their briefing before this court.

Accordingly, we have no occasion to evaluate whether Schuller’s

testimony that W.T. threatened him with a knife was sufficient

to support an instruction on imperfect self-defense. We proceed

under the assumption that such an instruction should have been

provided.

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A. Does Watson or Chapman Review Apply?

1. Overview of standards for evaluating prejudice

“The ‘generally applicable California test for harmless

error’ is set forth in Watson, supra, 46 Cal.2d 818. [Citation.]

Under the Watson test, we deem an error harmless unless it is

‘reasonably probable’ the outcome would have been different in

the absence of the error. [Citation.] As a general matter, this

test applies to ‘ “ ‘incorrect, ambiguous, conflicting, or wrongly

omitted instructions that do not amount to federal

constitutional error.’ ” ’ [Citation.]

“ ‘In contrast, we evaluate the harmlessness of violations

of the federal Constitution under the standard set forth in

Chapman[, supra, 386 U.S. 18].’ [Citation.] This ‘stricter’

standard of review requires reversal unless the error is

‘harmless beyond a reasonable doubt.’ [Citation.] Among the

constitutional errors subject to Chapman review is

misinstruction of the jury on one or more elements of the offense.

[Citation.] This is because the federal Constitution requires

‘criminal convictions to rest upon a jury determination that the

defendant is guilty of every element of the crime with which he

is charged, beyond a reasonable doubt.’ ” (Hendrix, supra,

13 Cal.5th at p. 942.) Applying those principles, we have held

that Chapman review applies to instructional errors that

“misdescribe[]” (Hendrix, at p. 942) an element of the charged

offense or are otherwise “incomplete and misleading” (Wilkins,

supra, 56 Cal.4th at p. 349) with respect to the findings

necessary to prove an element of the offense. (See People v.

Brooks (2017) 3 Cal.5th 1, 69.) The key inquiry is whether the

instruction operated to “preclude[] the jury from making a

finding” (Neder, supra, 527 U.S. at p. 10) on any fact necessary

to establish an element of the offense. (See Winship, supra,

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397 U.S. at p. 364 [due process requires prosecution to prove

“beyond a reasonable doubt . . . every fact necessary to

constitute the [charged] crime”].)

Here, Schuller argues that the trial court’s denial of a

request to instruct on imperfect self-defense operated to

misdescribe the malice element of murder, and thus constitutes

federal constitutional error. The Attorney General, in contrast,

argues that because “the absence of imperfect self-defense is

[not] an element of malice murder,” the error is one “of state law

only.” He further contends that our prior decisions have

repeatedly held that this form of instructional error amounts to

a failure to instruct on a lesser included offense and is thus

“governed by Watson.”

2. Summary of applicable legal principles governing

imperfect self-defense

California law separates criminal homicide into two

classes: the greater offense of murder and the lesser offense of

manslaughter. (See Rios, supra, 23 Cal.4th at p. 460.) Murder

is defined as “the unlawful killing of a human being . . . with

malice aforethought” (§ 187, subd. (a)), while manslaughter is

defined as “the unlawful killing of a human being without

malice” (§ 192). Thus, the “distinguishing feature [between the

two offenses] is that murder includes, but manslaughter lacks,

the element of malice.” (Rios, at p. 460.) Malice exists when “an

unlawful homicide was committed with the ‘intention

unlawfully to take away the life of a fellow creature’ (§ 188), or

with awareness of the danger and a conscious disregard for life.”

(Rios, at p. 460.)3

3

While the Penal Code recognizes these two distinct forms

of malice — commonly referred to as express and implied

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“Generally, the intent to unlawfully kill constitutes

malice.” (Breverman, supra, 19 Cal.4th at p. 153.) However,

California law recognizes two circumstances where “a finding of

malice may be precluded, and the offense limited to

manslaughter, even when an unlawful homicide was committed

with intent to kill” (Rios, supra, 23 Cal.4th at p. 460): (1) when

a person kills “ ‘ “in a ‘sudden quarrel or heat of passion’

[citation], or . . . [(2) when a person] kills in ‘unreasonable self-

defense’ — the unreasonable but good faith belief in having to

act in self-defense [citations].” ’ ” (Ibid.) “These mitigating

circumstances reduce an intentional, unlawful killing from

murder to voluntary manslaughter ‘by negating the element of

malice that otherwise inheres in such a homicide [citation].’ ”

(Id. at p. 461, quoting Breverman, at p. 154.) The circumstance

at issue in this case, imperfect self-defense, “obviates malice

because that most culpable of mental states ‘cannot coexist’ with

an actual belief that the lethal act was necessary to avoid one’s

own death or serious injury at the victim’s hand.” (Rios, at

p. 461; see Elmore, supra, 59 Cal.4th at p. 134 [“ ‘ “A person who

actually believes in the need for self-defense necessarily believes

he is acting lawfully.” [Citation.] Because express malice

requires an intent to kill unlawfully, a killing in the belief that

one is acting lawfully is not malicious’ ”].) A defendant charged

with murder is entitled to an instruction on imperfect self-

defense if there is substantial evidence to support the theory.

(See Elmore, at p. 134; Breverman, supra, 19 Cal.4th at p. 162.)

Thus, the relationship between murder and voluntary

manslaughter — and more specifically the relationship between

malice — in this case Schuller has conceded that he intended to

kill the victim but contends he did so in imperfect self-defense.

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murder and unreasonable self-defense — is somewhat “unique”

in our criminal law. (Rios, supra, 23 Cal.4th at p 459.) While

“closely resembl[ing] an affirmative defense” (People v. Barton

(1995) 12 Cal.4th 186, 199), imperfect self-defense is “not a true

defense; rather, it is a shorthand description of one form of

voluntary manslaughter. And voluntary manslaughter . . . is

not a defense but a crime . . . .” (Id. at p. 200.)

We have previously held that given how California has

chosen to structure its homicide laws, when imperfect self-

defense is at issue in a murder case, the People must prove the

absence of that circumstance “beyond a reasonable doubt . . . in

order to establish the . . . element of malice.” (Rios, supra,

23 Cal.4th at p. 462, italics omitted.) The state’s duty to

disprove imperfect self-defense follows from the high court’s

decision in Mullaney v. Wilbur (1975) 421 U.S. 684 (Mullaney),

which considered the constitutionality of a Maine homicide law

that placed the burden of proving provocation as a means of

negating the malice element of murder on the defendant. Maine

defined murder as an unlawful killing with malice aforethought

and defined malice as an intentional killing in the absence of

provocation. It defined manslaughter as an intentional killing

without malice. (Id. at pp. 684–687, 696–698.) Thus, as in

California, the offense of murder in Maine required malice (id.

at p. 684), with “heat of passion on sudden provocation” (id. at

p. 703) operating to negate malice and reduce the crime to

manslaughter. Maine, however, placed the burden of proving

heat of passion on the defendant.

The Supreme Court held that under this statutory

scheme, placing the burden of proving heat of passion on the

defendant violated “the due process requirement, as defined in

[Winship, supra, 397 U.S. at p. 364], that the prosecution prove

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beyond a reasonable doubt every fact necessary to constitute the

crime charged.” (Mullaney, supra, 421 U.S. at p. 685.) In its

analysis, the court acknowledged that “as a formal matter[,] the

absence of the heat of passion on sudden provocation is not a

‘fact necessary to constitute the crime’ of [murder] in Maine.”

(Id. at p. 697.) The court concluded, however, that the rule of

Winship is “concerned with substance rather than . . .

formalism” (Mullaney, at p. 699), and because “Maine ha[d]

chosen to distinguish those who kill in the heat of passion from

those who kill in the absence of this factor” (id. at p. 698), due

process required the state to prove the absence of heat of passion

beyond a reasonable doubt. (See id. at p. 704.)

Since Mullaney was decided, we have repeatedly cited the

decision in support of the proposition that when provocation or

imperfect self-defense are at issue, the prosecution is compelled

to disprove those circumstances beyond a reasonable doubt.

(See Rios, supra, 23 Cal.4th at p. 462; People v. Bloyd (1987)

43 Cal.3d 333, 349; cf. Smith v. United States (2013) 568 U.S.

106, 110 (Smith).) California’s standard jury instructions on

voluntary manslaughter include this requirement. (CALCRIM

Nos. 570, 571.)

3. The instructional error qualifies as a violation of

the federal Constitution

Although our standard instructions do not suffer the same

defect at issue in Mullaney, we agree with Schuller that the high

court’s holding bears equally on the error at issue here — a

failure to instruct on these theories when substantial evidence

supports them. Given how California has chosen to structure

the relationship between murder and voluntary manslaughter,

a trial court’s failure to instruct on imperfect self-defense

amounts to an incomplete instruction on the malice element of

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murder and is therefore subject to Chapman review for

constitutional error. (See Wilkins, supra, 56 Cal.4th at p. 349

[Chapman review applies to “incomplete” or “misleading”

instruction on element of the crime].)

As explained above, the high court’s holding in Mullaney

makes clear that when substantial evidence of imperfect self-

defense is present, the malice element of murder requires the

People to prove beyond a reasonable doubt not only that the

defendant committed an unlawful, intentional killing, but also

that the defendant did not kill in an actual but unreasonable

belief in the need for self-defense. (See Mullaney, supra,

421 U.S. at p. 704 [“the Due Process Clause requires the

prosecution to prove beyond a reasonable doubt the absence of

the heat of passion on sudden provocation when the issue is

properly presented in a homicide case”]; see also Rios, supra,

23 Cal.4th at p. 462 [“If the issue of provocation or imperfect

self-defense is . . . ‘properly presented’ in a murder case

[citation], the People must prove beyond reasonable doubt that

these circumstances were lacking in order to establish the

murder element of malice” (italics omitted)]; ante, at pp. 15–18.)

Stated more simply, because malice is absent when imperfect

self-defense is present, the prosecution cannot prove malice

without disproving imperfect self-defense.4 (See Rios, at p. 461

[evidence of imperfect self-defense “is relevant . . . to determine

whether malice has been established, thus allowing a conviction

4

These rules of course apply only when imperfect self-

defense is at issue. If a person has been charged with murder

and there is no evidence that would support a finding of

imperfect self-defense, the question of imperfect self-defense is

not part of the malice inquiry. (See generally Rios, supra,

23 Cal.4th at pp. 461–462.)

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of murder, or has not been established, thus . . . limiting the

crime to . . . voluntary manslaughter” (italics omitted)].)

Without an instruction on imperfect self-defense, the

jurors in this case were never informed that if they harbored a

reasonable doubt whether Schuller was operating under an

actual but unreasonable belief in the need for self-defense, they

were required to acquit him of murder for lack of malice. (Cf.

Wilkins, supra, 56 Cal.4th at p. 348 [applying Chapman review

where the trial court failed to instruct jury that the continuous

transaction element of felony murder was absent if the

defendant “had reached a place of temporary safety before the

fatal act occurred”].) Indeed, the record demonstrates that at

closing argument the prosecution told the jury the element of

malice had been conclusively established because Schuller

admitted he intentionally shot the victim and had failed to

proffer any legally valid theory of self-defense. Schuller, in turn,

was unable to argue to the jury that he lacked the requisite

malice to have committed murder, arguing only that his

perceptions of W.T.’s conduct raised a reasonable doubt as to

whether the killing was committed with deliberation and

premeditation. In other words, the lack of instruction forced

Schuller to concede, and enabled the prosecution to

affirmatively argue, that Schuller’s belief in the need to defend

himself was entirely immaterial to the jury’s determination of

malice. Thus, on the record before us, it is clear the trial court’s

misinstruction precluded the jury from making a factual

finding — the absence of imperfect self-defense beyond a

reasonable doubt — that was necessary to prove an “actual

element” of the charged offense of murder — malice. (Neder,

supra, 527 U.S. at p. 10, italics omitted.) Chapman review is

therefore appropriate.

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The Court of Appeal reached a different conclusion,

reasoning that whatever merit there might be in Schuller’s

theory of federal constitutional error, two prior decisions of this

court — Breverman, supra, 19 Cal.4th 142, and Gonzalez, supra,

5 Cal.5th 186 — have held that this form of instructional error

amounts to a violation of state law only. The Attorney General

presents a similar argument, contending that “[t]hese

authorities strongly suggest that the issue in this case is

settled.” We disagree.

In Breverman, supra, 19 Cal.4th 142, we held that

manslaughter qualifies as a lesser included offense of murder,

and thus a trial court has a sua sponte duty to instruct on heat

of passion and imperfect self-defense when the evidence raises

a question as to those issues. (See id. at pp. 153–155.) However,

we rejected the defendant’s assertion that a trial court’s failure

to instruct on those issues qualifies as a violation of the federal

Constitution. (Id. at p. 165.) Noting that the high court had

never “recogniz[ed] a federal constitutional right to instructions

on lesser included offenses in noncapital cases” (ibid.), we held

that “the rule requiring sua sponte instructions on all lesser

necessarily included offenses supported by the evidence derives

exclusively from California law” (id. at p. 169). Thus, any

violation of that duty was subject to review under Watson’s

reasonable probability standard.

Notably, however, in a dissenting opinion that directly

tracks the argument Schuller presents here, Justice Kennard

argued the instructional error amounted to a violation of the

federal Constitution. (See Breverman, supra, 19 Cal.4th at

p. 190 (dis. opn. of Kennard, J.) [“murder instructions that fail

to inform the jury it may not find the defendant guilty of murder

if heat of passion is present are incomplete instructions on the

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element of malice”].) In a responding footnote, the majority

explained that it need not address whether the misinstruction

had “caused the definition of the malice element of murder . . .

to be incomplete” (id. at p. 170, fn. 19, italics omitted) because

the defendant never raised that specific argument. The majority

concluded that the “merits” of such a theory should “await a case

in which they have been clearly raised and fully briefed.” (Ibid.;

see People v. Moye (2009) 47 Cal.4th 537, 558, fn. 5 [declining to

address whether failure to instruct on provocation resulted in

incomplete definition of malice because the defendant had not

raised that theory]; Lasko, supra, 23 Cal.4th at p. 113

[acknowledging that the Breverman majority had “declined to

consider whether [failure to instruct on provocation] violated the

federal Constitution by giving the jury an incomplete definition

of malice, an element of murder”].) Having specifically

preserved consideration of the theory of constitutional error that

Schuller raises here, Breverman cannot be said to preclude those

arguments.

In Gonzalez, supra, 5 Cal.5th 186, we addressed whether

the trial court’s failure to instruct on second degree murder (and

various other lesser forms of homicide) in a felony murder case

had been rendered harmless by the jury’s true finding on a

special circumstance allegation that the murder was committed

during a robbery. In deciding that question, we applied

Breverman’s rule that “[t]he failure to instruct on lesser

included offenses supported by substantial evidence [is] state

law error.” (Gonzalez, at p. 196.) We did not address, nor did

the defendant raise, the theory of federal constitutional error

that Justice Kennard discussed (and that the majority left open)

in Breverman. Indeed, it does not appear that theory would

have had any relevance to the type of error at issue in Gonzalez

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because the omitted instructions in that case — lesser forms of

homicide — did not operate to negate or otherwise modify the

elements of the charged offense of felony murder, which does not

require a showing of malice. (See People v. Dillon (1983)

34 Cal.3d 441, 475 [“malice is not an element of felony

murder”].) Accordingly, we find nothing in Gonzalez that

forecloses us from finally addressing the theory of error that

Schuller raises here.

The People argue that even if Breverman and Gonzalez do

not foreclose us from considering Schuller’s argument regarding

constitutional error, we should nevertheless reject that

argument on the merits. While acknowledging that Chapman

review applies to a trial court’s failure to properly instruct on an

element of the charged offense, the Attorney General contends

the absence of imperfect self-defense is not an element of

murder, but rather amounts only to “an exculpatory theory . . .

similar to a defense.” (See, e.g., People v. Martinez (2003)

31 Cal.4th 673, 685 [for purposes of deciding whether foreign

conviction satisfies prior murder special circumstance (see

§ 190.2, subd. (a)(2)), the absence of imperfect self-defense does

not qualify as an element of murder].) Thus, the Attorney

General reasons, cases applying Chapman review to

instructions that relate to an element of the offense are

inapplicable.

The Attorney General overlooks that Chapman review

applies not only to instructions that omit an element of the

offense, but also to instructions that provide an incomplete or

misleading description of what is necessary to establish an

element of the offense. (See Hendrix, supra, 13 Cal.5th at

p. 942; Wilkins, supra, 56 Cal.4th at p. 349.) And as discussed

above, it is well established that when imperfect self-defense is

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at issue, the prosecution cannot establish malice without

proving the absence of that circumstance beyond a reasonable

doubt. Because of that requirement, without an instruction on

imperfect self-defense, the jury is left unable to properly

evaluate whether the prosecution has sustained its burden to

prove malice. More specifically, the jury is left unaware that

even if the prosecution has proven that the defendant intended

to kill — a circumstance that generally demonstrates express

malice — the jury cannot find malice if it has a reasonable doubt

whether the defendant killed in imperfect self-defense. Thus,

the failure to instruct on that issue rendered the description of

malice —which is unquestionably an element of murder —

incomplete.

Finally, the Attorney General disagrees with our

conclusion that under Mullaney, supra, 421 U.S. 684, the State

has a constitutional duty to disprove imperfect self-defense

beyond a reasonable doubt when that theory is presented in a

murder case. (See ante, at pp. 17–18.) He contends that two

subsequent high court decisions, Patterson v. New York (1977)

432 U.S. 197 (Patterson) and Engle v. Isaac (1982) 456 U.S. 107

(Engle), have clarified that while states may choose to “task[]

the prosecution with proving [the] absence [of imperfect self-

defense] beyond a reasonable doubt,” they nonetheless retain

the authority to allocate the burden of proof on that issue to the

defendant. In the Attorney General’s view, because these cases

show California is not constitutionally required to disprove

imperfect self-defense, any error associated with failing to

instruct on that theory is necessarily grounded in state law and

thus subject to Watson review.

Contrary to the Attorney General’s assertions, nothing in

Patterson, supra, 432 U.S. 197, or Engle, supra, 456 U.S. 107,

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supplants Mullaney’s rule that when a state chooses to recognize

a defensive theory that operates to negate an element of the

charged offense, and the defendant presents evidence placing

that theory at issue, the due process clause requires the state to

prove the absence of that circumstance beyond a reasonable

doubt. (See Mullaney, supra, 421 U.S. at p. 704; Smith, supra,

568 U.S. at p. 110 [when a defensive theory “ ‘negate[s] an

element of the crime’. . . the Government has [a] constitutional

duty to overcome the defense beyond a reasonable doubt”].)

In Patterson, supra, 432 U.S. 197, the court held only that

the principles of Mullaney do not require states to “disprove

beyond a reasonable doubt every fact constituting any and all

affirmative defenses related to the culpability of an accused.”

(Patterson, at p. 210.) Patterson involved a New York law that

defined murder differently from California. The New York law

defined the crime of murder as “causing the death of another

person with intent to do so.” (Id. at p. 205.) Thus, unlike

California or Maine, the New York law crucially did not define

murder by using the term “malice.” Instead, the sole elements

of the offense were the death of a person, the intent to kill and

causation. New York also provided an affirmative defense of

“extreme emotional disturbance” that, if proved by the

defendant by a preponderance of the evidence, would reduce the

crime to manslaughter.

In upholding the constitutionality of this legal structure,

the court noted that unlike the homicide laws at issue in

Mullaney, New York’s emotional disturbance defense did “not

serve to negative any facts of the crime which the State is to

prove in order to convict of murder” (Patterson, supra, 432 U.S.

at p. 207), but rather related to “a separate issue” (ibid.) distinct

from the elements of the offense. Thus, Patterson merely stands

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for the proposition that states are permitted to place the burden

of proving some forms of affirmative defenses on the defendant,

namely those that do not serve to “negative any facts” (ibid.)

necessary to prove the charged offense.

In Engle, supra, 456 U.S. 107, habeas petitioners raised

multiple arguments challenging the constitutionality of a state

law that shifted the burden of proving self-defense to

defendants. In the section of the decision the Attorney General

cites, the court reiterated Patterson’s holding that states are

constitutionally permitted to assign defendants the burden of

proving some forms of affirmative defenses. (Engle, at p. 121.)

However, in a separate section of the decision that the Attorney

General does not discuss, the Engle court evaluated petitioners’

alternative contention that because the homicide offenses they

had been charged with required a showing of “purposeful or

knowing behavior” (id. at p. 121), the presence of self-defense

served to “negate” (ibid.) an element of the crime, thus requiring

the State to “disprove that defense as part of its task of

establishing guilty mens rea . . . .” (Id. at p. 122.) Noting that

several federal and state courts had interpreted Mullaney and

Patterson as creating a constitutional duty to “prove absence of

self-defense if that defense negates an element . . . of the

charged crime” (Engle, at p. 122), the court found that the

petitioners’ argument stated a “colorable constitutional claim.”

(Ibid.) The court went on to conclude, however, that for

purposes of federal habeas relief, petitioners had procedurally

defaulted this claim by failing to raise it in the state court

proceedings. As a result, the court declined to address the claim

on the merits.

More recently, in Smith, supra, 568 U.S. 106, the high

court adopted the argument left unaddressed in Engle,

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clarifying that under the Mullaney/Patterson framework, “[t]he

State is foreclosed from shifting the burden of proof to the

defendant . . . ‘when an affirmative defense . . . negate[s] an

element of the crime.’ [Citation.] Where instead it ‘excuse[s]

conduct that would otherwise be punishable,’ but ‘does not

controvert any of the elements of the offense itself,’ the

Government has no constitutional duty to overcome the defense

beyond a reasonable doubt.” (Smith, at p. 110; cf. People v.

Thomas (2023) 14 Cal.5th 327, 384 [Mullaney’s principles are

inapplicable to provocation in the context of first degree murder

because provocation is merely a factor the jury can consider

when evaluating premeditation and deliberation].) Smith thus

reaffirms that because California has structured its homicide

laws so that imperfect self-defense operates to negate the

element of malice, the State is constitutionally required to

disprove such a theory in cases where the issue is presented. 5

5

The People argue that language in People v. Babbitt (1988)

45 Cal.3d 660 (Babbitt), supports the view that the prosecution

does not have a constitutional duty to disprove defensive

theories that negate an element of the crime. The defendant in

Babbitt argued that an instruction on the affirmative defense of

unconsciousness violated the due process clause by placing the

burden of proof on that issue on the defense. The defendant

posited that because unconsciousness operated to negate intent,

the People could not shift the burden of proof on that issue, but

instead were required to prove the absence of that circumstance

beyond a reasonable doubt.

While Babbitt contains language that could be read to

suggest the People are not constitutionally required to disprove

defensive theories that negate an element of the crime (see

Babbitt, supra, 45 Cal.3d at pp. 693–694), we ultimately held

that the challenged instructions did not shift the burden on the

question of unconsciousness and therefore did not implicate the

constitutional issues addressed in Mullaney and Patterson.

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In sum, while states retain flexibility in choosing how to

define criminal offenses, our high court’s decisions make clear

that if a state chooses to recognize a defensive theory that

operates to negate an element of the charged offense, the due

process clause requires the prosecution to prove the absence of

that circumstance beyond a reasonable doubt.6 Applying those

principles here, we hold that when there is substantial evidence

of imperfect self-defense in a murder case, the trial court’s

failure to instruct on that theory precludes the jury from making

a factual finding that is necessary to prove the malice element

of murder. The error therefore amounts to a violation of the

federal Constitution and is subject to Chapman’s “beyond a

reasonable doubt” standard for evaluating prejudice.

We emphasize that our conclusion is predicated on the

“unique” relationship between murder and voluntary

Moreover, Babbitt was decided before Smith, supra, 568 U.S.

106, and Rios, supra, 23 Cal.4th 450, which make clear that

because imperfect self-defense negates the malice element of

murder, the People have a constitutional duty to prove the

absence of that circumstance beyond a reasonable doubt. (Rios,

at p. 462; Smith, at p. 110.)

6

As our high court has acknowledged, under the approach

adopted in the Mullaney and Patterson line of cases, “the

prosecution’s constitutional duty to negate affirmative defenses

may depend, at least in part, on the manner in which the State

defines the charged crime.” (Engle, supra, 456 U.S. at p. 120.)

While the court’s due process jurisprudence in this area does

appear to allow states considerable flexibility in defining

offenses in such a way as to reallocate the burden of proving

certain defensive issues (see Patterson, supra, 432 U.S. at

p. 210), those cases nonetheless make clear the structure

California has adopted with respect to homicide trigger a

constitutional duty to disprove imperfect self-defense beyond a

reasonable doubt.

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manslaughter (see ante, at pp. 15–18), and does not otherwise

modify the general rule that the failure to instruct on other

forms of lesser included offenses in noncapital cases is an error

of state law. (See Breverman, supra, 19 Cal.4th at p. 165.)7 We

also express no opinion on the appropriate standard of review

for instructional errors related to other forms of defensive

theories, including affirmative defenses. (See Gonzalez, supra,

5 Cal.5th at p. 199 [this court “ha[s] yet to determine whether a

trial court’s failure to instruct on a requested affirmative

defense instruction supported by substantial evidence is federal

constitutional error or state law error”]; cf. People v. Rogers

(2006) 39 Cal.4th 826, 872 [discussing federal authorities

concluding that trial court’s failure to give a requested

instruction embodying the defense’s theory of the case “violate[s]

the defendant’s due process right to present a complete

defense”].)

7

Our holding does of course apply to other forms of

voluntary manslaughter, i.e., heat of passion and imperfect

defense of others, which operate identically to imperfect self-

defense by negating the malice element of murder. (See Rios,

supra, 23 Cal.4th at p. 461; People v. Randle (2005) 35 Cal.4th

987, 997 [as with imperfect self-defense, one who kills in

imperfect defense of others is “guilty of manslaughter, not

murder, because he lacks the malice required for murder”

(italics omitted)].) Thus, when the record contains substantial

evidence of heat of passion or imperfect defense of others, the

failure to instruct on those theories is likewise subject to review

under the Chapman standard. We disapprove People v.

Breverman, supra, 19 Cal.4th 162, and People v. Randle, supra,

35 Cal.4th 987, to the extent those cases could be read to hold

otherwise.

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B. The Court of Appeal’s Prejudice Analysis Did

Not Comport with Chapman

Having concluded that the trial court’s misinstruction (or

more precisely the court’s assumed misinstruction, see ante, at

p. 13, fn. 2) qualified as a violation of the federal Constitution,

we must next assess the Court of Appeal’s conclusion that the

error was harmless. Although the court found that the

misinstruction amounted to an error of state law only (a

conclusion we have now rejected), it went on to hold that the

error was harmless even under Chapman’s stricter standard for

constitutional violations, which requires reversal unless it

appears “ ‘beyond a reasonable doubt that the error complained

of did not contribute to the verdict obtained.’ ” (People v. Brown

(2023) 14 Cal.5th 453, 473.)

Our recent decision in Lopez, supra, 14 Cal.5th 562,

clarified the Chapman standard in the context of instructional

errors that “ ‘misdescri[be] . . . the elements’ ” of the charged

offense. (Lopez, at p. 568.) We explained that the “test is

exacting” (id. at p. 581), requiring reversal unless the reviewing

court is persuaded that “ ‘ “[n]o reasonable jury” ’ would have

found in favor of the defendant on the missing fact, given the

jury’s actual verdict and the state of the evidence” (id. at p. 580).

When making this evaluation, the reviewing court “ ‘does not . . .

“become in effect a second jury to determine whether the

defendant is guilty.” [Citation.] Rather a court, in typical

appellate-court fashion, asks whether the record contains

evidence that could rationally lead to a contrary finding with

respect to the omitted element.’ ” (Id. at p. 581.) As stated by

our high court, “safeguarding the jury guarantee will often

require that a reviewing court conduct a thorough examination

of the record. If, at the end of that examination, the court cannot

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conclude beyond a reasonable doubt that the jury verdict would

have been the same absent the error — for example, where the

defendant contested the omitted element and raised evidence

sufficient to support a contrary finding — it should not find the

error harmless.” (Neder, supra, 527 U.S. at p. 19.)

In this case, the Court of Appeal’s harmless error analysis

focused solely on what it characterized as “overwhelming

evidence that [Schuller] was not acting in any form of self-

defense.” (Schuller, supra, 72 Cal.App.5th at p. 238.) In the

court’s view, several categories of evidence “undercut

[Schuller’s] claim of self-defense” (id. at p. 239) or “did not

entirely align with his story” (id. at p. 240), including (among

other things): (1) “[his] account of the killing radically changed

leading up to trial” (id. at p. 238); (2) two psychologists testified

that Schuller appeared to be malingering (id. at p. 239); (3) his

conduct immediately after the killing (setting fire to the body,

shooting the victim’s phone and fleeing from the scene) belied

his claim that he had tried to contact police (id. at pp. 239–240);

(4) many “aspects of [Schuller’s] testimony” were inconsistent,

thereby “undercut[ting] his credibility” (id. at p. 239); (5) the

physical evidence at the scene of the crime did not support

Schuller’s claim, in particular the fact that the knife was found

“on the table — not on the floor . . . [a]nd unlike the surrounding

area, . . . had no blood on it” (id. at p. 239); and (6) Schuller shot

the victim nine times in the head, suggesting “a personal motive,

rather than panicked self-defense” (id. at p. 240). The court

believed that, considered together, this evidence showed “there

was no reasonable possibility the error contributed to the

verdict.” (Ibid.)

The court’s discussion suggests that rather than assess

whether any reasonable jury could have credited Schuller’s

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claim of imperfect self-defense “given the . . . actual verdict and

the state of the evidence” (Lopez, supra, 14 Cal.5th at p. 580),

the court performed its own weighing of the evidence and its own

assessment of witness credibility. It was not the court’s role, for

example, to decide whether Schuller’s failure to raise the issue

of self-defense in his initial conversations with police

demonstrated that his trial testimony was not true or credit the

psychologists’ disputed conclusion that Schuller was

malingering. While much of the trial evidence certainly casts

doubt on Schuller’s claim of imperfect self-defense, it was

ultimately the jury’s role, not that of the reviewing court, to

assess whether such evidence showed beyond a reasonable

doubt that Schuller did not “kill[] with an actual but

unreasonable belief in the need for self-defense against

imminent death or great bodily injury.” (In re Christian S.

(1994) 7 Cal.4th 768, 778.)

The court’s findings on the merits of Schuller’s

instructional claim — i.e., that he was entitled to an instruction

on imperfect self-defense — further confirm that the court’s

evaluation of prejudice did not comport with the standards of

Chapman. When assessing the merits of Schuller’s claim, the

court correctly explained that an instruction on imperfect self-

defense must be given when there is “substantial evidence” to

support such a theory. (Schuller, supra, 72 Cal.App.5th at

p. 231; see Breverman, supra, 19 Cal.4th at p. 162.) It further

observed — again correctly — that “substantial evidence [in this

context] is ‘ “ ‘evidence from which a jury composed of

reasonable [persons] could’ ” ’ ” find in the defendant’s favor on

the issue. (Schuller, at p. 231; see Breverman, at p. 162.)

Applying those standards, the court found that the record did

contain sufficient evidence to require an instruction on

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imperfect self-defense, citing Schuller’s testimony that W.T. had

threatened him with a knife and citing evidence demonstrating

that a knife was found at the scene of the crime. (Schuller, at

p. 236.) Despite that finding, the court went on to conclude that

the instructional error was harmless because the evidence

weighing against Schuller’s claim of imperfect self-defense was

“overwhelming.” (Id. at p. 238.)

Had the court properly applied the standards required

under Chapman, it could not have found both that Schuller

presented sufficient evidence to support an instruction on

imperfect self-defense and that the error was harmless based

solely on the conclusion that the evidence was so overwhelming

as to compel a finding against him on that theory. (See Neder,

supra, 527 U.S. at p. 9.) In other words, if the court believed an

instruction was warranted because there was sufficient

evidence from which a reasonable jury could find in Schuller’s

favor on the question of imperfect self-defense, the court could

not then, consistent with Chapman, go on to find that the error

was nonetheless harmless simply because the evidence against

imperfect self-defense was so overwhelming that no reasonable

jury could have possibly found in Schuller’s favor on that issue.

(See ibid.)8

8

In Breverman, we rejected the defendant’s argument that

“an erroneous failure to instruct on a lesser included offense is

necessarily prejudicial, on the premise that if the evidence was

substantial enough to warrant lesser offense instructions in the

first place, it must have been strong enough to affect the

outcome had the instructions not been omitted.” (Breverman,

supra, 19 Cal.4th at p. 177.) We explained that the “standard[]

of evidentiary review” used to evaluate whether an instruction

on a lesser included offense should have been provided is

“distinct” from the standard of “[a]ppellate review under

33

PEOPLE v. SCHULLER

Opinion of the Court by Groban, J.

Because the Court of Appeal’s harmless error analysis

demonstrates that it misapprehended the standard that

Chapman requires, we remand the matter to allow the court to

reconsider whether the failure to instruct on self-defense was

harmless beyond a reasonable doubt under the appropriate

standard. (See Lopez, supra, 14 Cal.5th at pp. 580–592

[clarifying Chapman standard and remanding question of

prejudice where the reviewing court’s analysis indicated it

“misapprehended” the appropriate standard]; cf. Yamaha Corp.

of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 15,

[where the Court of Appeal applied an erroneous standard,

“regard for the structure of appellate decisionmaking suggests

the case should be returned to the Court of Appeal”].)9

Watson.” (Ibid.) That analysis, however, involved an

application of the Watson harmless error standard. (Ibid.) It

does not apply to the higher standard of prejudice applicable

under Chapman review.

9

The Attorney General argues that even if the Court of

Appeal’s approach to evaluating prejudice did not comport with

Chapman, there is nonetheless a separate basis to support a

finding of harmlessness: the jury’s “first degree murder verdict,

and rejection of second degree murder, shows that the jury

necessarily rejected Schuller’s testimony that he acted in self-

defense, leaving no doubt the jury would have returned the same

verdict had it been instructed regarding imperfect self-defense.”

In support, the Attorney General cites People v. Manriquez

(2005) 37 Cal.4th 547. (See id. at p. 582 [jury’s first degree

murder verdict “le[ft] no doubt the jury would have returned the

same verdict had it been instructed regarding imperfect self-

defense”].) The defendant and the concurrence disagree,

arguing that the first degree murder finding does not render the

instructional error harmless because “the requirements of self-

defense are consistent with a killing undertaken with

premeditation and deliberation.” (Conc. opn. of Liu, J., post, at

p. 2, citing CALCRIM No. 571.)

34

PEOPLE v. SCHULLER

Opinion of the Court by Groban, J.

III. CONCLUSION

The judgment is reversed and the matter is remanded for

further proceedings consistent with this opinion.

GROBAN, J.

We Concur:

GUERRERO, C. J.

CORRIGAN, J.

LIU, J.

KRUGER, J.

JENKINS, J.

EVANS, J.

The Attorney General did not rely on this alternative

theory below and the Court of Appeal did not address it. (See

People v. Maya (2020) 9 Cal.5th 239, 243 [declining to address

“alternative ground” raised in support of the judgment and

remanding to allow the Court of Appeal to “consider [the issue]

in the first instance”]; Central Coast Forest Assn. v. Fish &

Game Com. (2017) 2 Cal.5th 594, 606 [“it is appropriate to

remand . . . for the Court of Appeal to consider . . . unresolved

issues in the first instance”].)

35

PEOPLE v. SCHULLER

S272237

Concurring Opinion by Justice Liu

I agree that “when the record contains substantial

evidence of imperfect self-defense, the trial court’s failure to

instruct on that theory amounts to constitutional error and is

thus subject to review under the federal Chapman standard.”

(Maj. opn., ante, at p. 2; see Chapman v. California (1967) 386

U.S. 18, 24.) I further agree that where the Court of Appeal

“believed an instruction was warranted because there was

sufficient evidence from which a reasonable jury could find in

Schuller’s favor on the question of imperfect self-defense” (maj.

opn., ante, at p. 33), the court could not then “perform[] its own

weighing of the evidence” to hold such error harmless (id. at

p. 32). I write separately to address two issues.

First, while I agree with today’s opinion as far as it goes, I

would hold that reversible error occurred here. The Court of

Appeal determined that instructional error occurred; the

Attorney General does not challenge that determination; and

our clarification that Chapman review applies does not

implicate it. (Maj. opn., ante, at pp. 1, 13, fn. 2.) The Court of

Appeal “could not have found both that Schuller presented

sufficient evidence to support an instruction on imperfect self-

defense and that the [instructional] error was harmless based

solely on the conclusion that the evidence was so overwhelming

as to compel a finding against him on that theory.” (Id. at p. 33.)

Because the Court of Appeal found the former, and because our

decision presents no grounds to disturb that finding, logic

1

PEOPLE v. SCHULLER

Liu, J., concurring

dictates that the error cannot be held harmless based on the

weight of the evidence.

This conclusion comports with our precedent. In

evaluating the harmlessness of an instructional error under

Chapman, a court is limited to determining whether “it would

be impossible, based on the evidence, for a jury to make the

findings reflected in its verdict without also finding the missing

fact as well.” (In re Lopez (2023) 14 Cal.5th 562, 568.) Unless

the jury’s findings in this case precluded any possibility of also

finding that Schuller acted in imperfect self-defense, the

instructional error cannot be held harmless.

Because the jury’s findings that Schuller acted with

premeditation and deliberation do not preclude a finding that he

honestly but unreasonably believed he needed to act in self-

defense, the instructional error is not harmless. While

voluntary manslaughter based on heat of passion is “manifestly

inconsistent” with premeditation and deliberation (People v.

Wharton (1991) 53 Cal.3d 522, 572), voluntary manslaughter

based on imperfect self-defense is not. Imperfect self-defense

does not require a rash or impulsive killing. Rather, the

requirements of self-defense are consistent with a killing

undertaken with premeditation and deliberation. A defendant

who acts in self-defense must honestly believe that he or she is

“in imminent danger of being killed or suffering great bodily

injury” and that “the immediate use of deadly force [is]

necessary to defend against the danger.” (CALCRIM No. 571.)

These requirements imply that a defendant has evaluated both

the danger present and alternate options for escape or de-

escalation and has concluded that “ ‘imminent danger to life or

great bodily injury’ ” requires the use of deadly force. (People v.

Trujeque (2015) 61 Cal.4th 227, 270, italics omitted.)

2

PEOPLE v. SCHULLER

Liu, J., concurring

Schuller’s self-defense claim aligns with these

requirements. He testified that after unsuccessfully attempting

to flee W.T.’s apartment and then seeing W.T. reach for a gun

and attempt to attack with a knife, he determined that

responding with deadly force was necessary. (Maj. opn., ante, at

p. 10.) Schuller’s testimony supports a conclusion that he

premeditated — that is, he “decided to kill before completing the

act[] that caused death,” a decision that “can be reached

quickly” — and that he deliberated by “carefully weigh[ing] the

considerations for and against” his decision to kill. (CALCRIM

No. 521.) A juror who credited his testimony could rationally

conclude both that he acted with premeditation and deliberation

and that he honestly though unreasonably believed he needed

to act in self-defense. Because the instructional error in this

case did not allow a juror to express both of those conclusions, it

cannot be found harmless.

Second, if Schuller’s conviction is reversed, a new trial is

likely to again raise the question of whether his belief in the

need for self-defense was “entirely delusional” or was instead

supported by an “objective correlate.” (People v. Elmore (2014)

59 Cal.4th 121, 137 (Elmore).) I continue to disagree with our

determination in Elmore, a closely divided decision, that a

defendant may not argue imperfect self-defense based on a

“purely delusional belief in the need to act in self-defense.” (Id.

at p. 130; see id. at p. 154 (conc. & dis. opn. of Kennard, J., joined

by Werdegar & Liu, JJ.).)

Elmore held that “unreasonable self-defense is ‘a species

of mistake of fact . . . predicated upon a negligent perception of

facts, not, as in the case of a delusion, a perception of facts not

grounded in reality.’ ” (Elmore, supra, 59 Cal.4th at p. 136.)

Defendants may argue imperfect self-defense where an objective

3

PEOPLE v. SCHULLER

Liu, J., concurring

correlate — that is, evidence demonstrating “a motivation

arising from objective facts, not delusions” (id. at p. 138) —

supports their “mistaken[] belie[f] that actual circumstances

required their defensive act” (id. at p. 146). By contrast, Elmore

said, “[a] claim of self-defense based solely on delusion is . . . a

claim of legal insanity” and is therefore “reserved for the [trial’s]

sanity phase.” (Id. at p. 145.)

But there is no reason to preclude a claim of imperfect self-

defense because of the origin of a defendant’s honest belief.

Because “California has structured its homicide laws so that

imperfect self-defense operates to negate the element of malice”

(maj. opn., ante, at p. 27), “that most culpable of mental states

‘cannot coexist’ with an actual belief that the lethal act was

necessary to avoid one’s own death or serious injury at the

victim’s hand” (People v. Rios (2000) 23 Cal.4th 450, 461). As

discussed above, self-defense requires a defendant to genuinely

believe that he or she is “in imminent danger of being killed or

suffering great bodily injury” and that “the immediate use of

deadly force [is] necessary to defend against the danger.”

(CALCRIM No. 571.) But because a “purely delusional” belief in

the need for self-defense may be just as genuine as a belief based

on an “objective correlate,” it is not clear what supports Elmore’s

conclusion that a defendant’s claim of imperfect self-defense

must be grounded in objective reality. Such an assessment goes

to the reasonableness of a defendant’s belief — a consideration

necessary to perfect self-defense but irrelevant to imperfect self-

defense, which is by definition unreasonable. (Elmore, supra, 59

Cal.4th at pp. 133–134.)

Moreover, this case demonstrates that Elmore’s holding

requires highly subjective line drawing. Under Elmore, “[a]

person who sees a stick and thinks it is a snake” is entitled to

4

PEOPLE v. SCHULLER

Liu, J., concurring

assert imperfect self-defense, but someone “who sees a snake

where there is nothing snakelike” is not. (Elmore, supra, 59

Cal.4th at p. 137.) This distinction, in addition to lacking a

principled basis in the law of murder, comes with no guidance

for determining what qualifies as an “objective correlate.” Here,

the Court of Appeal held that the “large knife . . . found on the

kitchen table” and the “gun case . . . on the table” provided

objective correlates sufficient to conclude that Schuller’s belief

was not purely delusional. (People v. Schuller (2021) 72

Cal.App.5th 221, 236.) But would the mere presence of a knife

in the same room as Schuller have been sufficient, even if

Schuller only imagined that W.T. lunged for it? What if W.T.

had looked at the knife in a way that Schuller interpreted as

presaging an imminent attack? What if W.T. had walked

toward the side of the kitchen where the knife was located, and

Schuller honestly believed W.T. was going to grab the knife and

attack?

There are no easy answers to such questions, yet courts

applying Elmore must answer them. (See, e.g., People v.

Ocegueda (2016) 247 Cal.App.4th 1393, 1409–1410 [defendant’s

uncorroborated testimony that he saw victim pull a metallic

object from his waistband provided a sufficient objective

correlate to necessitate an imperfect self-defense instruction];

People v. Leeds (2015) 240 Cal.App.4th 822, 833 [father’s kicking

down of office door provided an objective correlate for

defendant’s fatal shooting despite defendant’s fear resulting

from delusional beliefs about father].) Elmore foists on trial

courts and juries “[t]he unenviable task of distinguishing such

partly delusional beliefs having some objective basis from those

that are ‘purely’ or ‘entirely’ delusional.” (Elmore, supra, 59

Cal.4th at p. 152 (conc. & dis. opn. of Kennard, J.).) This

5

PEOPLE v. SCHULLER

Liu, J., concurring

unguided inquiry is compounded by the equally subjective

challenge of determining, in the chain of events leading a

defendant to have an unreasonable belief in the need for self-

defense, at what temporal or causal point an objective correlate

must be found.

All of this is unnecessarily confusing and complicated.

Requiring an “objective correlate” in order to assert imperfect

self-defense is inconsistent with the requirement of malice to

prove murder. Because “[t]he unreasonable belief in the need

for self-defense may stem from mental illness, negligence,

subaverage intelligence, or a variety of other causes . . . [,] it

should not matter why the killer perceived a need for self-

defense.” (Elmore, supra, 59 Cal.4th at p. 150 (conc. & dis. opn.

of Kennard, J.).) Where substantial evidence supports an

imperfect self-defense instruction, “the jury at the guilt phase

need not decide whether [a defendant’s] belief was delusional,

but [need] only decide[] whether that belief was genuine.” (Id.

at p. 152 (conc. & dis. opn. of Kennard, J.).) I suggest we

reconsider Elmore in an appropriate case.

LIU, J.

I Concur:

EVANS, J.

6

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion People v. Schuller

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 72 Cal.App.5th 221

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________

Opinion No. S272237

Date Filed: August 17, 2023

__________________________________________________________

Court: Superior

County: Nevada

Judge: Candace S. Heidelberger

__________________________________________________________

Counsel:

David L. Polsky, under appointment by the Supreme Court, for

Defendant and Appellant.

Mary K. McComb, State Public Defender, Anne W. Lackey and William

Whaley, Deputy State Public Defenders, and Jessie Peterson for the

Office of the State Public Defender as Amicus Curiae on behalf of

Defendant and Appellant.

Kamala Harris, Xavier Becerra and Rob Bonta, Attorneys General,

Lance E. Winters, Chief Assistant Attorney General, Michael P.

Farrell, Assistant Attorney General, Ivan P. Marrs, Christopher J.

Rench, Eric L. Christoffersen, Jennifer M. Poe, Daniel B. Bernstein

and Peter H. Smith, Deputy Attorneys General, for Plaintiff and

Respondent.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

David L. Polsky

Attorney at Law

P.O. Box 118

Ashford, CT 06278

(860) 429-5556

Jennifer M. Poe

Deputy Attorney General

1300 I Street

Sacramento, CA 95814

(916) 210-7692