People v. Randle

BROWN, J.,

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

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

In Christian S., we observed, “It is well established that the ordinary self-defense doctrine—applicable when a defendant reasonably believes that his safety is endangered—may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified. [Citations.] It follows, a fortiori, that the imperfect self-defense doctrine cannot be invoked in such circumstances. For example, the imperfect self-defense doctrine would not permit a fleeing felon who shoots a pursuing police officer to escape a murder conviction even if the felon killed his pursuer with an actual belief in the need for self-defense.” (Christian S., supra, 7 Cal.4th at p. 773, fn. 1 .)

There is no question but that defendant, by his felonious acts, set in motion the events resulting in his killing of Robinson. “By making two fateful choices defendant triggered an escalating series of events that transformed the most mundane of property crimes into a fatal shooting. When he set out to burglarize cars, defendant chose to arm himself. When he was surprised in the act of burglary, defendant chose to use the weapon. Whether, during that initial confrontation, he fired the pistol at Robinson, or fired in the air, as he variously testified, he raised the stakes enormously.” (Maj. opn., ante, at p. 1003.)

However, under Christian S., defendant may invoke the doctrine of imperfect defense of others because Robinson’s attack on Byron was not legally justified. “The Attorney General’s argument fails because although defendant’s criminal conduct certainly set in motion the series of events that led to the fatal shooting of Robinson, the retreat of defendant and Byron and *1009 the subsequent recovery of the stolen equipment from Byron extinguished the legal justification for Robinson’s attack on Byron.” (See Christian S., supra, 7 Cal.4th at p. 773, fn. 1 .)

“The record supports the conclusion that Robinson was taking the law into his own hands, meting out the punishment he thought Byron deserved, and not making a citizen’s arrest as the Attorney General claims. While Robinson may well have had a right to pursue Byron for the purpose of recovering Lambert’s stolen property, and to use reasonable force to retrieve it, the beating of Byron by Robinson and Lambert went well beyond any force they were entitled to use. Moreover, after they recovered the stolen stereo equipment and returned to their truck, Robinson jumped out of the truck and began beating Byron again. At that point Robinson’s use of force was completely unjustified, and it was at that point, or shortly thereafter, that defendant shot Robinson.” (Maj. opn., ante, at pp. 1002-1003, fins, omitted.)

The paradigm for permitting imperfect defense of others is a case like that of Kitty Genovese 1 —a case where someone is being attacked and a third party has to decide whether to intervene without knowing the full context. In such a circumstance, there is good reason to be more lenient with a misperception or misjudgment. In my view, however, we should never allow a felon whose felonious activity sets off a series of tragic (and ultimately fatal) events to claim partial exoneration—particularly if he murders in defense of a crime partner.

The Legislature has made a policy decision that felons who break into homes or businesses cannot sue for compensation. (Civ. Code, § 847.) Similarly, the Legislature enacted the Home Protection Bill of Rights in 1984 “ ‘to permit residential occupants to defend themselves from intruders without fear of legal repercussions, to give “the benefit of the doubt in such cases to the resident ....”’ [Citation.]” (People v. Hardin (2000) 85 Cal.App.4th 625, 633 [ 102 Cal.Rptr.2d 262 ].) In other words those who do not play by the rules should not receive the benefit of the rules. In the same vein, the law should preclude reliance on imperfect defense of others by miscreants whose misjudgments lead to the death of their victim.

For the Attorney General, the specter raised by the doctrine of imperfect defense of others extends far beyond the circumstances presented by a case like this: ”A judicially created doctrine of unreasonable defense of others would be an open invitation to assaults, not just upon undercover officers effectuating arrests, but upon innocent bystanders in many situations not the *1010 least of them being mob violence and gang warfare.” Indeed, members of violent street gangs, for whom manslaughter convictions would be little deterrent since they spend most of their lives in prison in any event, might well provoke violence in order to have a license to kill. 2

As the Attorney General observes, imperfect defense of others, like imperfect self-defense, is a judicially created doctrine. (See People v. Rios (2000) 23 Cal.4th 450, 465 [ 97 Cal.Rptr.2d 512 , 2 P.3d 1066 ].) I have elsewhere urged the Legislature to provide clear definitions of malice and imperfect self-defense. (People v. Wright (2005) 35 Cal.4th 964, 985-986 [ 28 Cal.Rptr.3d 708 , 111 P.3d 973 ] (conc. opn. of Brown, J.).) For the reasons stated above, the derivative doctrine of imperfect defense of others should also be reexamined.

See Gansberg, 37 Who Saw Murder Didn’t Call the Police, N.Y. Times (Mar. 27, 1964) p. Al.

That may have been the game the Travis brothers were playing in People v. Travis (1880) 56 Cal. 251 . (Maj. opn., ante, at pp. 999-1000.)