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People v. Mayfield1/2/1997
2d 808]), and because defendant did not ask the trial court to clarify or amplify it, defendant may not complain on appeal that the instruction was ambiguous or incomplete.
Q. Rejection of Proposed Instruction on Excusable Homicide in the Heat of Passion
The court declined defendant's request that the jury be given this instruction:
"The unintentional killing of a human being by accident and misfortune is excusable when committed in the heat of passion upon a sudden combat or upon a sudden and sufficient provocation which would provoke a reasonable man to fight, provided:
"1. The person killing was not the original aggressor;
"2. No undue or unfair advantage was taken of the other by the person killing;
"3. No dangerous or deadly weapon was used by the person who killed during the fight;
"4. The killing was not done in a cruel or unusual manner; and
"5. The act of killing was not the result of gross negligence."
The trial court rejected the instruction as unsupported by the evidence. Noting that the instruction does not apply if the killer used a deadly weapon, while here the prosecution established by undisputed evidence that Sergeant Wolfley died from a gunshot wound, the court reasoned that if defendant was Sergeant Wolfley's killer, then defendant must have used a deadly weapon. Defendant challenges this reasoning, relying on decisions holding, in a different context, that a negligent or involuntary discharge of a firearm is not necessarily a "use" of the firearm. (See, e.g., People v. Chambers (1972) 7 Cal. 3d 666, 674 [102 Cal. Rptr. 776, 498 P.2d 1024].)
Assuming for argument's sake that the trial court erred in refusing to give the instruction, defendant was not prejudiced. In rejecting the lesser included offenses of manslaughter and second degree murder and convicting defendant instead of first degree murder, the jury necessarily found that defendant intended to kill Sergeant Wolfley and that the killing was deliberate and premeditated. Under these circumstances, failure to instruct on a theory of unintentional and accidental killing was harmless. ( People v. Mincey, (supra) , 2 Cal. 4th 408, 438.)
R. Rejection of Proposed Instructions on Actual Danger and on Due Caution and Circumspection
The defense requested that the trial court instruct the jury in the language of CALJIC No. 5.51 (1977 rev.), as follows: "Actual danger is not necessary to justify self-defense. If one is confronted by the appearance of danger which arouses in his mind, as a reasonable person, an honest conviction and fear that he is about to suffer bodily injury, and if a reasonable man in a like situation, seeing and knowing the same facts, would be justified in believing himself in like danger, and if the person so confronted acts in self-defense upon such appearances and from such fear and honest convictions, his right of self-defense is the same whether such danger is real or merely apparent."
The trial court refused the instruction on the ground that the same subject matter was adequately covered by a different instruction, CALJIC No. 5.12 (1979 rev.), which is tailored for use in homicide cases. That instruction states:
"The killing of another person in self-defense is justifiable and not unlawful:
"1. When the person who does the killing has reasonable ground to believe and does believe that there is imminent danger that the other person will kill him or cause him great bodily injury, and
"2. A reasonable person under the same circumstances would believe that it was necessary to kill the other person to prev
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