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People v. Mayfield1/2/1997
ent death or great bodily injury to himself.
"In order to justify killing another person in self-defense, actual danger or great bodily injury is not necessary. On the other hand, a bare fear of death or great bodily harm is not sufficient.
"In order to justify a killing it must be established:
"1. The circumstances must be sufficient to excite the fears of a reasonable person that there was imminent danger of death or great bodily injury, and
"2. The party killing must have acted under the influence of such fears alone and under the belief that such killing was necessary to save himself from death or great bodily injury."
We agree with the trial court that this instruction rendered defendant's proposed instruction superfluous.
The defense also requested that the trial court instruct the jury in the language of CALJIC No. 8.46 (4th ed. 1979) as follows: "The term 'without due caution and circumspection' as used in these instructions refers to negligent acts which are aggravated, reckless and gross and which are such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be contrary to a proper regard for human life or an indifference to consequences. The facts must be such that the fatal consequences of the careless or negligent acts could reasonably have been foreseen and it must appear that the death was not the result of misadventure but the natural and probable result of a reckless or grossly negligent act."
Defendant contends that the instruction should have been given in conjunction with CALJIC No. 5.00 (4th ed. 1979), which states: "The unintentional killing of a human being is excusable and not unlawful when committed by accident and misfortune in the performance of a lawful act by lawful means and where the person causing the death acted with that care and caution which would be exercised by an ordinarily careful and prudent individual under like circumstances."
We reject this contention. The requested instruction defines a phrase--"without due caution and circumspection"--that does not appear in the instruction given. Therefore, the requested instruction would not have assisted the jury in understanding the instruction given. Although the trial court perhaps should have explained that the standard of care required for an excusable homicide is not the civil negligence standard, but a less exacting criminal negligence standard (see People v. Penny (1955) 44 Cal. 2d 861, 879 [285 P.2d 926]; People v. Velez (1983) 144 Cal. App. 3d 558, 566-567 [192 Cal. Rptr. 686]), the failure to do so could not have prejudiced defendant given the jury verdict finding him guilty of first degree premeditated and deliberate murder.
S. Prosecutorial Misconduct in Jury Argument
Defendant contends that the prosecutor committed misconduct in argument to the jury, and also during jury selection, by expressing his personal belief in defendant's guilt and his personal belief that defendant had lied during his testimony, and that the prosecutor committed additional misconduct in jury argument by injecting racial issues into the proceeding.
1. Personal Belief
When arguing to the jury, it is misconduct for a prosecutor to express a personal belief in the defendant's guilt if there is a substantial danger that the jurors will construe the statement as meaning that the belief is based on information or evidence outside the trial record ( People v. Bain (1971) 5 Cal. 3d 839, 848 [97 Cal. Rptr. 684, 489 P.2d 564]), but expressions of belief in the defendant's guilt are not improper if the prosecutor makes clear that t
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