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People v. Mayfield1/2/1997
voluntary manslaughter. As defendant apparently recognizes, malice is negated in this situation only if the defendant honestly but unreasonably believed that the degree of force used was in fact necessary. Absent such a belief, a person's use of excessive force in response to an officer's use of excessive force does not negate malice.
When considering a challenge to a jury instruction, we do not view the instruction in artificial isolation but rather in the context of the overall charge. ( People v. Espinoza (1992) 3 Cal. 4th 806, 823-824 [12 Cal. Rptr. 2d 682, 838 P.2d 204].) For ambiguous instructions, the test is whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. ( Boyde v. California (1990) 494 U.S. 370, 380-381 [108 L. Ed. 2d 316, 328-330, 110 S. Ct. 1190].)
Here, in addition to giving the challenged instruction, the trial court instructed the jury that " person who kills another person in the honest but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury kills unlawfully, but does not harbor malice aforethought and cannot be found guilty of murder." Under this instruction, if the jury concluded that defendant killed Sergeant Wolfley by the use of excessive force in the honest but unreasonable belief that the amount of force used was necessary, it would have been required to find that defendant acted without malice. On the other hand, if the jury concluded that defendant killed Sergeant Wolfley by the use of excessive force without honestly believing that the amount of force used was necessary, then the jury could properly find, as it evidently did find, that defendant acted with malice, whether or not Sergeant Wolfley had used excessive force. Therefore, we conclude that there is no reasonable likelihood that the jury was misled in the manner defendant suggests, and we reject defendant's contention that the trial court erred in giving the challenged instruction.
P. Instructions Regarding Provocation
The court instructed the jury on provocation in the language of CALJIC No. 8.73 (1979 rev.): "When the evidence shows the existence of provocation that played a part in inducing the unlawful killing of a human being, but also shows that such provocation was not such as to reduce the homicide to manslaughter, and you find that the killing was murder, you may consider the evidence of provocation for such bearing as it may have on the question of whether the murder was of the first or second degree."
Defendant contends that the trial court erred to his prejudice in giving this instruction because it is ambiguous and fails to sufficiently specify the subjective factors that the jury ought to consider in deciding how provocation bears on the elements of first and second degree murder. We reject this contention.
CALJIC No. 8.73 is a "pinpoint" instruction (see People v. Saille (1991) 54 Cal. 3d 1103, 1119 [2 Cal. Rptr. 2d 364, 820 P.2d 588]) that relates particular facts to an element of the charged crime and thereby explains or highlights a defense theory. ( People v. Lee (1994) 28 Cal. App. 4th 1724, 1734 [34 Cal. Rptr. 2d 723].) The trial court is not required to give such an instruction on its own initiative, and if the instruction as given is adequate, the trial court is under no obligation to amplify or explain in the absence of a request that it do so. ( People v. Kelly (1992) 1 Cal. 4th 495, 535-536 [3 Cal. Rptr. 2d 677, 822 P.2d 385]; People v. Ashmus (1991) 54 Cal. 3d 932, 997 [2 Cal. Rptr. 2d 112, 820 P.2d 214].) Because the instruction as given was adequate (see People v. Fitzpatrick (1992) 2 Cal. App. 4th 1285, 1293, fn. 5 [3 Cal. Rptr.
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