Filed 7/8/26 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, A170747
Plaintiff and Respondent,
(Alameda County
v. Super. Ct. No. 19CR017660)
JERMAINE JEREMIAH BRIM,
ORDER MODIFYING
Defendant and Appellant.
OPINION [NO CHANGE IN
JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on June 17, 2026 be modified
as follows:
On page 17, in the sentence beginning “Moreover, if a defendant
testifies . . . ,” the phrase “an element of the crime” is replaced with “a
component of the malice element of murder,” so that the sentence now reads:
Moreover, if a defendant testifies that he acted in self-defense, the absence of
perfect or imperfect self-defense is a component of the malice element of
murder, and the prosecution must prove such absence beyond a reasonable
doubt.
There is no change in the judgment.
The petition for rehearing filed on June 30, 2026 is denied.
1
Dated: __________________ _________________________
RICHMAN, Acting P.J.
2
Alameda County Superior Court
Trial Judge: Jennifer Madden, Judge
Counsel:
Cliff Gardner, under appointment by the Court of Appeal, and Lazuli Whitt,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Jeffrey M. Laurence, Senior Assistant Attorney General, Sarah J.
Farhat and Christen Somerville, Deputy Attorneys General for Plaintiff and
Respondent.
3
Filed 6/17/26 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A170747
v.
JERMAINE JEREMIAH BRIM, (Alameda County
Super. Ct. No. 19CR017660)
Defendant and Appellant.
Defendant Jermaine Brim boarded a BART train and got into a
physical fight with another passenger, Oliver Williams. The fight lasted
some five minutes, and during it Williams drew a knife and attempted to stab
Brim. The fight continued and eventually Brim gained control of the knife,
fatally stabbed Williams in the head and neck, and ran from the train. The
entire altercation was captured on two BART surveillance cameras.
Brim was charged with murder and tried by jury, where he testified
that he had acted in self-defense. After lengthy deliberations over three days,
during which the jury asked several insightful questions of the court, the jury
found him guilty of second degree murder and he was later sentenced to 16
years to life in prison. Brim argues that the trial court erred in: (1)
stationing an armed deputy near him during his testimony; (2) instructing
the jury with CALCRIM No. 3474 regarding the right to self-defense, and in
responding to the jury’s question about that instruction during its
deliberations; and (3) in limiting the jury’s consideration of his diminished
intellectual capacity by instructing it with CALCRIM No. 3428. We agree
1
that the trial court prejudicially erred in responding to the jury’s question
regarding CALCRIM No. 3474, and we therefore reverse Brim’s murder
conviction. However, because we also conclude that there is substantial
evidence to support that conviction, the People may retry Brim for murder. If
they elect not to do so, we direct that the judgment be modified to reflect a
conviction for voluntary manslaughter.1
BACKGROUND
The Altercation on BART
Around 1:00 p.m. on November 19, 2019, Brim boarded a BART train at
the San Leandro station. At the time, he was not wearing shoes. What
happened next was captured on at least two BART surveillance cameras.2
We have reviewed the video from those two cameras, and find the following
description of their contents in Brim’s later-filed motion for acquittal to be
generally accurate, except as noted:
“Broadly speaking, the video depicts Mr. Brim enter the BART, take a
seat in car 303 and have no interaction with anyone. He then enters car 1732
where he approaches a gentleman who appears to be sleeping and touches his
shoe. As he touche[s] the shoe, the gentleman stirs and Mr. [Oliver] Williams
turns his head and appears to be listening to what is being said. The video
then shows Mr. Brim pull one of the man’s shoes off and Mr. Williams look in
his direction. Mr. Williams then gets up and he and Mr. Brim[ ]appear to
1 Our disposition makes it unnecessary for us to reach Brim’s other two
arguments on appeal. Those arguments do not relate to the only difference
between perfect and imperfect self-defense—the objective reasonableness of
the defendant’s belief that deadly force was necessary to save his own life—
nor does Brim contend otherwise.
2 The record includes five videos: two videos from each of two cameras
on BART car 1732, and one video from BART car 303, showing four angles.
2
exchange some sort of words. Mr. Brim walks around and away from Mr.
Williams and begins to stop and speak to [a passenger] wearing [a]
camouflage jacket. The gentleman in the camouflage jacket sits up as Mr.
Brim stops and Mr. Williams comes toward Mr. Brim saying something and
gesturing for him to leave the car. Mr. Brim then leaves the car and Mr.
Williams stands in the doorway of car 1732 as he does.
“Not too long after . . . Mr. Brim reenters the car and he and Mr.
Williams begin fighting. At the very beginning of this 8 minute[3] fight, Mr.
Brim is seen hitting Mr. Williams several times in his body while Mr.
Williams is on [a] yellow seat[,] and then again once they end up on the
ground. Mr. Williams does not hit Mr. Brim back with his hands. When Mr.
Brim hits Mr. Williams while they are on the ground, the video shows that
Mr. Williams has a hold of Mr. Brim[’]s legs. Both of them are moving
around. Mr. Williams then rolls and turns over using his boots. Mr. Brim’s
leg is between Mr. Williams’ legs and the[y] continue to move around like this
until the video shows Mr. Williams kick Mr. Brim in the chin face area with
his boots. Mr. Brim begins grasping for Mr. Williams’ boots[,] and for a brief
moment hold[s] them down toward the seat while Mr. Williams is on his
back. Eventually, Mr. Brim and Mr. Williams are both on the ground with
Mr. Brim’s legs between Mr. Williams’ legs and Mr. Brim and Mr. Williams
are holding onto one another by the shirt.
“The BART doors open and close. Mr. Brim has his right hand on the
yellow seat and Mr. Williams begins reaching for his left pocket. Mr. Brim
begins also reaching for the left pocket. Mr. Brim and Mr. Williams appear to
3 The video (until Brim leaves the train) is just over seven minutes long,
and the fight itself occupies some five minutes.
3
say something before Mr. Williams pulls out a knife from his pocket. The
video shows that he switches the knife to his right hand, kicks Mr. Brim back
onto the yellow seat with his boots and tries to stab Mr. Brim in the leg
area.[4]
“Mr. Brim and Mr. Williams then begin struggling over the knife.
Eventually the knife appears to fall to the ground and Mr. Brim picks it up
and stabs Mr. Williams multiple times in the head area. Mr. Williams is
moving around the whole time. The BART doors then open to the next stop
and Mr. Brim gets up and runs from the BART train looking behind him as
he runs.”
Williams died shortly thereafter from loss of blood caused by multiple
stab and incised5 wounds.
Meanwhile, Brim left the South Hayward BART station, dropping a
bloody glove on the stairs and a bloody sweater in the parking lot. He
proceeded to a nearby AM/PM mini-mart and purchased a bottle of water,
using it to wash blood off his hands and feet. He then went to a nearby car
dealership, where Steve Castro, the sales manager, showed him a car for
sale. After getting into the driver’s seat, Brim asked Castro for the keys, and
ended up punching Castro and running away. He next stopped a moving car
in the street and entered the passenger side door, causing the driver to take
4 In his closing argument, the prosecutor argued that “it’s pretty clear
that when he pulls out the knife, he tries to stab Mr. Brim in the hand.”
5 According to the forensic pathologist who performed Williams’ autopsy,
an incised wound “measures bigger or longer on the surface of the skin
than . . . its depth into the body.”
4
the keys and flee. Brim exited the vehicle and ran to a nearby bus stop,
where he was placed under arrest.6
The Charges
On November 21, 2019, the Alameda County District Attorney filed a
complaint, and on May 20, 2021, the operative information, charging Brim
with Williams’ murder (Pen. Code,7 § 187). The information included the
special allegations that Brim was on bail or released on his own recognizance
at the time of the offense (§ 12022.1), and that during its commission he used
a deadly weapon (§ 12022, subd. (b)(1)) and personally inflicted great bodily
injury (§ 1203.075).
The Trial
A 15-day jury trial took place in August and September of 2023.
The prosecution’s witnesses included Sophia Humphrey, a passenger
who waited for the train near Brim and witnessed the fight; Wendy Cristy
Alas Calles, an employee of the car dealership; Dr. Thomas Rogers, the
forensic pathologist who performed Williams’ autopsy; and several police
officers.
The defense witnesses were Scott Ferreira, an expert in the area of
“martial arts, self-defense and human behavior as it relates to human
aggression”; Dr. Takeo Toyoshima, an expert in addiction and psychiatry;
Brim’s ex-girlfriend Tyanna Moore; Brim’s cousin Felicia Harrell; and Brim
himself. Some of Brim’s testimony was as follows.
6 Brim later called his Aunt Mozell from jail and told her: “I swear to
God, I didn’t say nothing to the guy. The dude was—the guy was like the
Hulk, the aggressor. He had the weapon. He told me—he pulled the weapon
on me, Auntie, and told me he was about to kill me, and I was so scared, and
I fought for myself, and that’s what happened.”
7 Further undesignated statutory references are to the Penal Code.
5
On November 18, 2019, Brim was living in Sacramento, having moved
there in May of that year in order to be closer to his then seven-year-old son.
Around 5 a.m., he took an ecstasy pill, which he was in the habit of doing
approximately four times a month when he felt “most depressed,” depression
he had been experiencing since the death of his mother in early 2018. Later
that day, he took Amtrak and BART trains to San Francisco, arriving around
5:00 p.m., hoping to see his father or his Aunt Mozell. He accidentally left his
wallet at home.
Once in San Francisco, Brim tried unsuccessfully to connect with his
father and his Aunt Mozell. He went to the bank and obtained a temporary
debit card, which he used to purchase a cell phone. He then took BART to
Berkeley and tried unsuccessfully to meet up with a friend. He took BART to
Oakland and tried to get a hotel room, but the hotel would not take his
temporary debit card. At this point it was almost midnight, and Brim was
“sleepy, fatigued,” “hyperventilating,” “feeling unwell,” and “just wanted to
lay down.” He asked the hotel clerk to call an ambulance, which arrived and
took him to San Leandro Hospital, where he spent the night.
On the morning of November 19, Mr. Brim called his ex-girlfriend
Tyanna Moore and asked her to pick him up. Moore could not come to the
hospital until after work, so Brim, eager to leave the hospital and get back
home, decided to leave on foot. He left certain of his belongings at the
hospital, figuring he could retrieve them later. He was wearing socks, pants,
a hospital gown, a gold chain, a gold pendant, and diamond earrings, but no
shoes.
After leaving the hospital, Brim went down the block to a tow shop and
asked a tow truck driver for a ride to Sacramento. The driver did not give
Brim a ride, but gave him a red sweatshirt with a red glove inside. Brim
6
gave the driver a diamond gold pendant, because he “appreciated him for his
gesture of giving me the sweatshirt.” Brim also “walked up to the body shop
and asked if anybody in there had any extra shoes,” but nobody did. Brim
then “noticed the BART sign” and went to the BART station, where he
boarded car number 303 on a southbound train. Brim took a seat and
remained there until the train made the next stop, but shortly thereafter
decided to walk to the next car—number 1732.
As to his fight with Williams, Brim testified that after entering car
1732, he approached an individual whose shoes were “not new” because he
wanted to “ask the person to purchase them or to exchange for them.”
Williams then approached him “in an aggressive manner and yelling
something at me . . . sort of fuck no, you can’t have the shoes. Fuck no and
screaming and like really loud and aggressive.” Brim “didn’t understand why
he was approaching me the way he approached me, and . . . was more
confused, if anything.” As Brim began to interact with the man wearing a
camouflage jacket, Williams “interrupted” the interaction, “approaching
[Brim] in an aggressive manner,” “walking towards me fast and . . . lifting his
arms, and yelling.” Brim did not “feel like [he] could have stayed there,” so
he returned to car 303.
However, as Brim was walking in car 303, his “feet were hurting, and
I . . . wanted to finish my interaction with the guy for the shoes,” so he
returned to car 1732. Brim was “going to . . . walk fast past” Williams and
“wasn’t really focused on” him, but he saw Williams stand up “in like a
football position,” as though he were “about to make a tackle.” Brim “put
[his] arms up to block [his] face and . . . mouth,” Williams tackled him, and
the two started fighting. Brim was six feet tall and weighed about 215
7
pounds, but Brim perceived that Williams “stood taller than me and his size
was bigger than me.”
When Brim saw Williams reaching for his pocket, he asked “what are
you doing,” and Williams said “ ‘now you got to die.’ ” “[A]fter he said what he
said, it really triggered me to get really frightened and scared and I, you
know, thought I was about to die.” When Williams attempted to stab him, he
“saw [his] life flash by,” “got really panicky,” and “started thinking . . . what if
I don’t get to see my son any more.” Brim did not recall how he got the knife
or how many times he stabbed Williams, although he knew it was more than
once. Even after stabbing Williams, Brim was still scared because Williams
was “grabbing at me and trying to hit me,” “holding my arm still,” and the
two were “still fighting for this knife.” When the doors to the train opened,
Brim “focused on the door” and “just felt free to run.”
Brim also testified that he was “very afraid” of knives, in light of two
experiences with them in his past. First, Brim’s uncle was fatally stabbed
when Brim was five years old, and he recalled “them bringing his [uncle’s]
items home” and “seeing blood on . . . his personal belongings.” And second,
when Brim was nine or ten years old, he was playing with his cousin and her
friend outside his aunt’s house when a taxi came down the street, “crashing
into different cars.” The taxi stopped some 10 feet away from the children, at
which point the passenger fatally stabbed the taxi driver and the bloody knife
was “dropped in front of” them.8
Dr. Laeeq Evered, a clinical psychologist and neuropsychologist,
testified as an expert for the defense. He examined Brim and administered
8 Brim’s cousin, Felicia Harrell, also testified regarding this incident,
explaining that it was “traumatizing,” that she still does not own any knives,
and that she “learned a way . . . to cook . . . by using scissors” as a result.
8
an IQ test, which showed that Brim’s IQ was 78, placing him in the 7th
percentile—“mean[ing] that 93 percent of the population in Mr. Brim’s
general age range performs better than him.” This percentile is “equivalent
to . . . the functioning of maybe a 12 or a 13-year-old,” such that Brim was at
the “borderline” of “being able to function fully independently,” and would
have difficulty “perform[ing] higher level tasks” such as “regulating [his]
emotions, for example.” In particular, when placed in threatening situation,
Brim would have “limited problem-solving ability,” it would take him “longer
to take in [new] information,” and his “prefrontal cortex would not be able to
regulate the emotional system as well,” meaning his “anxiety would likely
increase and potentially dramatically.” Having reviewed the surveillance
video and examined Brim, Dr. Evered opined that Brim’s cognitive
functioning played a role in the incident, both because he was more likely
than most to have a “fear response” to a threatening situation, and less able
to “put things into context and think[] that just a minute or two . . . after
having a confrontation with someone, that that person may still be
confrontational.”
The Prosecutor’s Closing Argument
In his closing argument, the prosecutor argued that Brim was guilty of
first degree murder under both a theory of premeditation and deliberation,
based on the number and nature of the stab wounds and the fact that Brim
had the knife for “over a minute” before stabbing Williams, and on a theory of
felony murder, contending that Brim committed the killing during an
attempted robbery because he had “attempted to steal the shoes” of the
individual he approached when he first entered car 1732. He further argued
that the elements of implied malice had been established based on Brim’s
affirmative responses to his questions about those elements on cross-
9
examination.9 The prosecutor also argued that “[f]rom the moment the
defendant takes that knife from Mr. Williams, he [was] in full mount
position” with “complete control of [the] knife,” such that thereafter “he did
not have a reasonable belief that he was in imminent danger.”
Toward the end of his argument, the prosecutor “[r]eally quickly” and
“briefly” discussed voluntary and involuntary manslaughter, arguing that
they “don’t apply,” imperfect self-defense in particular because “you are not
allowed to claim imperfect self-defense when it is your own wrongful conduct
that creates those circumstances. And . . . in this case, I’ve argued to you
that that attempted robbery is that wrongful conduct.”
The Jury Instructions
The trial court instructed the jury on the imperfect self-defense theory
of voluntary manslaughter, pursuant to CALCRIM No. 571, as follows:
9 Some of those questions were as follows:
“Q. Thank you. You intentionally stabbed Mr. Williams, correct?
“A. Yes, while in fear for my life. [¶] . . . [¶]
“Q. Was it an accident that you stabbed him?
“A. It was a confrontation, so I would say no.
“Q. Yes or no, did you understand at the time that stabbing someone
was dangerous to human life?
“A. Yes. [¶] . . . [¶]
“Q. And in the heat of the moment, you were willing to do whatever it
took to save your life, correct?
“A. Yes.
“Q. You were willing to do whatever it took to get off this BART train
and go see your son, correct, see your family again?
“A. I wasn’t thinking about that. I was thinking about protecting
myself.
“Q. You were willing to do whatever it took to protect yourself, correct?
“A. Yes.”
10
“If you conclude the defendant acted in complete self-defense, his action
was lawful and you must find him not guilty of any crime. The difference
between complete self-defense and imperfect self-defense depends on whether
the defendant’s belief in the need to use deadly force was reasonable. [¶] The
defendant acted in imperfect self-defense if: [¶] 1. The defendant actually
believed that he was in imminent danger of being killed or suffering great
bodily injury;” and “2. The defendant actually believed that the immediate
use of deadly force was necessary to defend against the danger;” but “[a]t
least one of those beliefs was unreasonable. [¶] Belief in future harm is not
sufficient, no matter how great or how likely the harm is believed to be. [¶]
In evaluating the defendant’s beliefs, consider all the circumstances as they
were known and appeared to the defendant. [¶] A danger is imminent if,
when the fatal wound occurred, the danger actually existed or the defendant
believed it existed. The danger must seem immediate and present, so that it
must be instantly dealt with. It may not be merely prospective or in the near
future. [¶] . . . [¶] The People have the burden of proving beyond a
reasonable doubt that the defendant was not acting in imperfect self-defense.
If the People have not met this burden, you must find the defendant not
guilty of murder.”
After reading the jury CALCRIM No. 3471 (Right to Self-Defense:
Mutual Combat or Initial Aggressor),10 the trial court instructed the jury
with CALCRIM No. 3474 (Danger No Longer Exists or Attacker Disabled):
10 “A person who engages in mutual combat or who starts a fight has a
right to self-defense only if: [¶] 1. He actually and in good faith tried to stop
fighting; [¶] 2. He indicated, by word or by conduct, to his opponent, in a
way that a reasonable person would understand, that he wanted to stop
fighting and that he had stopped fighting; [¶] AND [¶] 3. He gave his
opponent a chance to stop fighting.
11
“The right to use force in self-defense continues only as long as the
danger exists or reasonably appears to exist. When the attacker no longer
appears capable of inflicting any injury, then the right to use force ends.”
The Jury’s Deliberations, Questions, and Verdict
The jury began its deliberations at 4:19 p.m. on Thursday, September
28, but left for the day some 11 minutes later.
Deliberations resumed at 9:30 a.m. on Friday, September 29. At 9:50
a.m., the jury submitted several requests, including for video of Brim’s arrest,
his phone call with his Aunt Mozell, his visit to the AM/PM mini-mart, and
“[a]ll videos and video angles of BART trains 1732 and 303.”11 About an hour
later, the requested videos were delivered to the jury deliberation room. The
jury was excused for the day at noon.
Deliberations resumed Monday, October 2 at 9:40 a.m., and continued
until 5 p.m. They resumed the next morning at 9:48 a.m. Some ten minutes
later, the jury submitted two questions to the court, one substantive and one
procedural.12 The substantive question asked: “Is it possible to have judge or
“If the defendant meets these requirements, he then had a right to self-
defense if the opponent continued to fight. [¶] However, if the defendant
used only non-deadly force, and the opponent responded with such sudden
and deadly force that the defendant could not withdraw from the fight, then
the defendant had the right to defend himself with deadly force and was not
required to try to stop fighting, communicate the desire to stop to the
opponent, or give the opponent a chance to stop fighting.”
11 The jury also requested transcripts of interviews that two defense
witnesses gave to a defense investigator, and a “video of Sophia Humphries
being interviewed in the back of the police car,” which requests the trial court
denied, as the requested material had not been admitted into evidence.
12 The verdict form said “We, the jury, further find that the defendant
DID/DID NOT use a deadly weapon . . . ,” and similarly with respect to the
great bodily injury special allegation. The jury’s procedural question asked,
“there are two lines with ‘DID/DID NOT’ Do we need to circle one?” The trial
12
som[e]one explain difference between 2nd degree murder & voluntary
manslaughter?” After a discussion off the record with counsel, the trial court
answered: “Please, refer to instruction numbers 520 [First or Second Degree
Murder], 522 [Provocation: Effect on Degree of Murder], 570 [Voluntary
Manslaughter: Heat of Passion] and 571 [Voluntary Manslaughter: Imperfect
Self-Defense].”
About an hour later, the jury asked two more questions together on a
single form: (1) “If the defendant met all of the criteria on 520 including
implied malice for Second Degree Murder, is it possible for that to be reduced
to Voluntary Manslaughter if the conditions on 570 or 571 are met?,” and (2)
“If the right to self-defense ends as stated on 3474 when the danger no longer
exists, can Voluntary Manslaughter-Imperfect Self-Defense theory continue
past that point?” Around 11:42 a.m., after another discussion with counsel
off the record, the trial court answered “Please, refer to instructions 522, 570
and 571” to the first question and “Please, refer to instruction 571” to the
second.
The jury continued deliberating (without a lunch break) until 2:00 p.m.,
at which point it was dismissed for the day.
Deliberations resumed at 9:42 a.m. the next morning. By 10:45 a.m.,
the jury had reached its verdict, finding Brim guilty of second degree murder
and true the special allegations that he used a deadly weapon and personally
inflicted great bodily injury during the commission of the offense.
The Discussion After the Verdict
After the jury was dismissed and counsel had the opportunity to speak
with the individual jurors, defense counsel indicated to the court that she
court answered, “Yes. Please, circle the one that you find applies to the facts
of the case and the law as I have provided.”
13
“had some things I wanted to put on the record.” She went on to explain that
with respect to the jury’s questions the previous day, “[m]ost of the
conversation happened in chambers” and “[w]e didn’t go on the record.” But
in particular with respect to the jury’s second set of questions, “Mr. Marin
had a position at the time, but that’s not really what I’m addressing. In
chambers when we discussed it, I indicated I wanted the Court to answer it
to say yes, as to the second question specifically. [¶] The Court was very
clear that the Court felt it was a factual issue and would just redirect them
back to the instruction, but I want the record to be really clear that I did,
when we had this discussion, say—I wanted the answer to be yes.”
That morning, while the jury was still deliberating, defense counsel
had asked to reopen argument under California Rules of Court, rule 2.1036,13
a request the trial court denied as premature. She went on: “But I want the
record to be really clear that I objected in terms of I do feel, and we did learn
information that the jurors were split six-six as of yesterday afternoon, that I
wanted the record to reflect that I had requested that based on the legal
nature of the questions posed to the Court yesterday—and it should be noted,
I think the Court’s noted it before, but it should be obvious for the record that
the jurors never asked for any read back of anything—
“THE COURT: Right.
“MS. BROWN:—in this case. So it does appear they were purely
grappling with [a] legal determination based on the facts. And so I wanted
13 California Rules of Court, rule 2.1036 provides, in relevant part, that
“[a]fter a jury reports that it has reached an impasse in its deliberations,”
and “[i]f the trial judge determines that further action might assist the jury
in reaching a verdict, the judge may: [¶] . . . (3) Permit attorneys to make
additional closing arguments.” (Cal. Rules of Court, rule 2.1036(a) & (b).)
14
the record to be really clear that I had requested those things between
yesterday and this morning.”
Neither the trial court nor the prosecutor disputed defense counsel’s
description of what took place off the record with respect to the jury’s
questions. The trial court explained that “yesterday specifically when we
talked about the second set of questions,” and in particular the second
question, “I referred them specifically to instruction 571, because that very
explicitly, in the Court’s determination, gives the law on what they can
consider.” With respect to defense counsel’s request to reopen argument, the
trial court said it denied it because, “although it was clear to the Court that
they were probably focusing on the voluntary manslaughter and the second
degree murder, there was not a note sent out indicating that they were at an
impasse.” The trial court then set a date for sentencing.
On April 2, 2024, the trial court sentenced Brim to 15 years to life, plus
one consecutive year for the deadly weapon special allegation.
Brim filed a notice of appeal.
DISCUSSION
CALCRIM No. 3474, contained within a section titled, “Self-Defense
and Defense of Another,” provides: “The right to use force in self-defense
continues only as long as the danger exists or reasonably appears to exist.
When the attacker no longer appears capable of inflicting any injury, then
the right to use force ends.”
Brim argues that because CALCRIM No. 3474 tells jurors that a
defendant’s “right to use force in self-defense” ends when the danger no
longer “reasonably appears to exist,” it is unclear—and the instruction itself
does not explain—that this limitation applies only to perfect self-defense, but
not to imperfect self-defense. He argues that the trial court erred when it
15
“refused to give a simple and straightforward answer” (i.e., “yes”) to the jury’s
question as to whether it could rely on imperfect self-defense even if the right
to use perfect self-defense had ceased under this instruction.14 We agree.
The Law of Imperfect Self-Defense
As we explained in People v. Sotelo-Urena (2016) 4 Cal.App.5th 732,
744: “A homicide is considered justified as self-defense where the defendant
actually and reasonably believed the use of deadly force was necessary to
defend himself from imminent threat of death or great bodily injury. Under
such circumstances, the killing is not a crime. (People v. Elmore (2014) 59
Cal.4th 121, 133–134; § 197; 1 Witkin & Epstein, Cal. Criminal Law (4th ed.
2012) Defenses, § 67 et seq., p. 507 et seq.) Where the defendant kills while
actually but unreasonably believing the use of deadly force was necessary,
defendant is considered to have acted in imperfect self-defense. Imperfect
self-defense is not a complete defense to a killing, but negates the malice
element and reduces the offense to voluntary manslaughter. (People v.
Elmore, supra, 59 Cal.4th at p. 134; People v. Blakeley (2000) 23 Cal.4th 82,
88; People v. Flannel (1979) 25 Cal.3d 668, 672.) ‘The subjective elements of
self-defense and imperfect self-defense are identical. Under each theory, the
[defendant] must actually believe in the need to defend . . . against imminent
peril to life or great bodily injury.’ (People v. Viramontes (2001) 93
Cal.App.4th 1256, 1262.) As the California Supreme Court summarized it in
People v. Humphrey (1996) 13 Cal.4th 1073, 1082: ‘For killing to be in self-
defense, the defendant must actually and reasonably believe in the need to
14 We need not consider Brim’s alternative argument regarding
CALCRIM No. 3734, that provision of the instruction permitted the jury to
convict him of murder even if all the elements of imperfect self-defense had
been established.
16
defend. [Citation.] If the belief subjectively exists but is objectively
unreasonable, there is “imperfect self-defense,” i.e., “the defendant is deemed
to have acted without malice and cannot be convicted of murder,” but can be
convicted of manslaughter. [Citation.] To constitute “perfect self-defense,”
i.e., to exonerate the person completely, the belief must also be objectively
reasonable. [Citations.]’ (Fn. omitted.)”
Moreover, if a defendant testifies that he acted in self-defense, the
absence of perfect or imperfect self-defense is an element of the crime, and
the prosecution must prove such absence beyond a reasonable doubt. (See
§ 197; People v. Morales (2021) 69 Cal.App.5th 978, 988; CALCRIM No. 505;
CALCRIM No. 571.) As our Supreme Court has explained, “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. [Citations.] Stated more simply, because malice is absent when
imperfect self-defense is present, the prosecution cannot prove malice without
disproving imperfect self-defense.” (People v. Schuller (2023) 15 Cal.5th 237,
254–255 (Schuller).)
The Trial Court’s Duty to Clear Up Jury Confusion
“The court has a primary duty to help the jury understand the legal
principles it is asked to apply.” (People v. Beardslee (1991) 53 Cal.3d 68, 97
(Beardslee).) And under section 1138, if a deliberating jury “desire[s] to be
informed on any point of law arising in the case . . . the information required
must be given.” (§ 1138; see People v. Brooks (2017) 3 Cal.5th 1, 97.) “Where
the original instructions are themselves full and complete, the court has
discretion under section 1138 to determine what additional explanations are
17
sufficient to satisfy the jury’s request for information. (People v. Gonzalez
(1990) 51 Cal.3d 1179, 1213.) Indeed, comments diverging from the standard
are often risky. [Citation.] The trial court [may be] understandably reluctant
to strike out on its own. But a court must do more than figuratively throw up
its hands and tell the jury it cannot help. It must at least consider how it can
best aid the jury. It should decide as to each jury question whether further
explanation is desirable, or whether it should merely reiterate the
instructions already given.” (Beardslee, supra, 53 Cal.3d at p. 97; see People
v. Brooks, supra, 3 Cal.5th at p. 97.)
Thus, although the trial court need not always elaborate on the
standard instructions, section 1138 “imposes a ‘mandatory’ duty to clear up
any instructional confusion expressed by the jury.” (People v. Gonzalez,
supra, 51 Cal.3d at p. 1212, superseded by statute on another ground as
stated in Satele v. Superior Court (2019) 7 Cal.5th 852, 857; see People v.
Dykes (2009) 46 Cal.4th 731, 802 [section 1138 imposes a “general obligation”
to “ ‘clear up any instructional confusion expressed by the jury’ ”].) “That
further guidance may not come easily to hand, or is not supplied by counsel,
does not excuse the court from its statutory duty.” (People v. Ross (2007) 155
Cal.App.4th 1033, 1047.)
We review for an abuse of discretion the trial court’s determination how
best to answer a jury’s question under section 1138. (See People v. Waidla
(2000) 22 Cal.4th 690, 745–746 [“An appellate court applies the abuse of
discretion standard of review to any decision by a trial court to instruct, or
not to instruct, in its exercise of its supervision over a deliberating jury”];
People v. Hodges (2013) 213 Cal.App.4th 531, 539.)
“Various definitions and principles describing the abuse of discretion
standard of review have been stated and repeated in numerous cases, such as
18
in Blank v. Kirwan (1985) 39 Cal.3d 311, 331, that we will set aside a trial
court ruling only upon a showing of ‘ “ ‘a clear case of abuse’ ” ’ and ‘ “ ‘a
miscarriage of justice.’ ” ’ . . . [¶] . . . [¶] [O]ur colleagues in Division Four of
this court observed that ‘Abuse of discretion has at least two components: a
factual component . . . and a legal component. [Citation.] This legal
component of discretion was best explained long ago in Bailey v. Taaffe (1866)
29 Cal. 422, 424: “The discretion intended, however, is not a capricious or
arbitrary discretion, but an impartial discretion, guided and controlled in its
exercise by fixed legal principles. It is not a mental discretion, to be exercised
ex gratia, but a legal discretion, to be exercised in conformity with the spirit
of the law and in a manner to subserve and not to impede or defeat the ends
of substantial justice. . . .” ’ ” (People v. Jacobs (2007) 156 Cal.App.4th 728,
736–738, quoting Concord Communities v. City of Concord (2001) 91
Cal.App.4th 1407, 1417.)
That legal component was abused here.
The Trial Court Abused Its Discretion In Responding to the
Jury’s Third Question
The jury’s first question—as noted, asked well into its many hours,
indeed days, of deliberations—regarding the difference between second
degree murder and voluntary manslaughter suggests that it had rejected the
prosecution’s felony murder theory as well as exoneration based on perfect
self-defense, and was instead focused on whether Brim’s subjectively-held
beliefs could reduce what would otherwise be a murder conviction to one for
voluntary manslaughter. The jury’s second question made this even more
explicit, suggesting that the jury had found that the prosecution had proved
“all of the criteria” for implied malice—perhaps based on Brim’s own
testimony, as emphasized by the prosecutor in his closing argument—but
19
also had some doubt as to whether the prosecution had proved that Brim had
not acted in imperfect self-defense or in the heat of passion. As it had done in
response to the jury’s first question (except for the instruction on murder
itself), the trial court referred the jury to the instructions on provocation,
heat of passion, and imperfect self-defense.
Then, as noted, the jury’s third question was, “If the right to self-
defense ends as stated on [CALCRIM No.] 3474 when the danger no longer
exists, can Voluntary Manslaughter-Imperfect Self-Defense theory continue
past that point?”
The jury’s apparent confusion was somewhat understandable.
Although the instructions elsewhere referred to “complete,” “lawful,” and
“imperfect” self-defense, CALCRIM No. 3474 was a stand-alone instruction
that referred only to the right to “self-defense.” (See CALCRIM No. 571
[“complete” and “imperfect” self-defense]; CALCRIM No. 505 [“lawful” self-
defense].) And if the jury misunderstood the “right to self-defense” in
CALCRIM No. 3474 to encompass both perfect and imperfect self-defense,
there was a direct contradiction between the objective standard there
described (“as long as the danger exists or reasonably appears to exist”) and
the subjective standard of CALCRIM No. 571, requiring only that the
defendant “actually believe[d]” the use of deadly force was necessary to avoid
imminent danger of death or great bodily harm. (CALCRIM No. 571; see
ibid. [defining danger as imminent if “the danger actually existed or the
defendant believed it existed” and requiring that “[t]he danger must seem
immediate and present” (italics added)].) The jury’s question suggests that at
least some jurors may have harbored just such a misunderstanding.
Moreover, the point was not academic. As noted, the prosecutor had
repeatedly argued during his closing argument that once Brim gained control
20
of the knife towards the end of his altercation with Williams, any danger
justifying “self-defense” no longer existed. Indeed, he twice made explicit
reference to CALCRIM No. 3474, telling the jury that the instruction
contained “the same argument I’m making to you . . . [o]nce [Brim] has
control of that knife, once he’s in full mount position, that danger does not
exist, and it does not reasonably appear to exist,”15 and returning to the
instruction in rebuttal: “[A]s we know in this case, Mr. Williams was no
longer armed when he was being stabbed in the neck, the face, in the back of
the head. [¶] And I’d ask you to look at that instruction about the attacker
being disabled and that [sic] it does apply in this case, because Mr. Williams
no longer had a weapon. He wasn’t posing a threat when Mr. Brim was on
top of him. Self-defense does not apply in this case for those reasons.”
But as defense counsel argued to the trial court—and as the Attorney
General does not dispute—the answer to the jury’s question was “Yes.” This
is because there is no “right” to kill in imperfect self-defense; instead, a
defendant who does so has killed unlawfully and is guilty of voluntary
manslaughter. (See Schuller, supra, 15 Cal.5th at p. 252.) But this is a bit of
a fine point. Perhaps it can be derived by carefully correlating the
15 “There are other instructions that further my point. 3474, the danger
no longer exists or attacker disabled. ‘The right to use force in self-defense
continues only as long as the danger exists or reasonably appears to exist.’
[¶] It’s the same argument I’m making to you. Once he has control of that
knife, once he’s in full mount position, that danger does not exist, and it does
not reasonably appear to exist. [¶] ‘When the attacker withdraws’—and I’m
using the law uses [sic] the word ‘attacker.’ I’ll have some conversation about
who was the attacker in this case and who wasn’t. ‘When the attacker
withdraws or no longer appears capable of inflicting any injury, then the
right to use force ends.’ [¶] Again, when he is on his back, when Mr. Brim
has the knife, when he is in full control of Mr. Williams’ body, Mr. Williams
no longer appears capable of inflicting any injury whatsoever at that point.
Mr. Brim is in a hundred percent full control of that situation at that point.”
21
instructions on homicide, justifiable homicide, murder, voluntary
manslaughter, and self-defense. (See CALCRIM Nos. 500, 505, 520, 571,
3474.) On a silent record, we might well assume that the jury successfully
performed just such a correlation. (See People v. Thomas (2023) 14 Cal.5th
327, 382 [“ ‘Jurors are presumed able to understand and correlate
instructions and are further presumed to have followed the court’s
instructions’ ”], quoting People v. Sanchez (2001) 26 Cal.4th 834, 852.) But
the jury’s questions in this case indicate otherwise—this is not a silent
record.
And in responding to the jury’s question by simply directing it—for the
third time—to refer to CALCRIM No. 571, the trial court did nothing to clear
up the instructional confusion the jury had expressed. Perhaps the jury’s
first two questions had answers that could be found in the instructions the
jury had already been given, but this question did not. The question makes
clear that at least some members of the jury erroneously thought that the
“right to self-defense” in CALCRIM No. 3474 encompassed imperfect self-
defense. Under CALCRIM No. 3474, that right ends when the danger has
objectively passed, while under CALCRIM No. 571, the “right” continues so
long as the defendant subjectively believes the danger is present. Can
imperfect self-defense reduce the defendant’s would-be murder conviction to
voluntary manslaughter after the danger has objectively passed? It depends
which instruction you ask. Given that the jury’s question was about how to
harmonize two seemingly conflicting instructions, simply directing the jury to
refer back to one of those instructions failed to fulfill the trial court’s
obligation under section 1138 to clear up the jury’s instructional confusion.16
16 As noted, defense counsel suggested that the trial court referred the
jury to CALCRIM No. 571 because in its view it “was very clear” that the
question presented a “a factual issue.” We do not have the benefit of a
22
(See People v. Loza (2012) 207 Cal.App.4th 332, 355 [“Because it was clear
from the jury’s questions that the instructions that the court had already
given had left the jurors confused, it was not enough for the court to inform
the jurors, in response to their specific inquiry, that they must rely on the
very instructions that had confused them”]; People v. Nero (2010) 181
Cal.App.4th 504, 518 [trial court misinstructed the jury by rereading two
instructions in response to jury’s question where proper answer was “yes”];
People v. Gonzales (1999) 74 Cal.App.4th 382, 390–391 [rereading
instructions already given in response to jury question constituted error
where instructions “inadequate” to respond to jury’s confusion], disapproved
on another ground in People v. Anderson (2011) 51 Cal.4th 989, 997–998 & fn.
3.)
The Attorney General fails to persuade us otherwise. We first address
his reliance on what appears to be the only authority addressing the
relationship between CALCRIM No. 3474 and imperfect self-defense, People
v. Thomas (1990) 219 Cal.App.3d 134 (Thomas). Such reliance is unavailing.
In Thomas, the defendant had a verbal altercation with the victim
outside a bar, shot him causing great bodily injury, and was later convicted
by a jury of attempted murder. (Id. at pp. 138–139.) He argued that the jury
was likely confused by the interplay between the CALJIC instruction on
imperfect self-defense (CALJIC No. 517) and the CALJIC equivalent of
transcript of the discussion between the trial court and counsel about how to
respond to the question, because such discussion evidently took place in
chambers and off the record, and the position of the prosecutor was never put
on the record. But as discussed, the question was a purely legal one, and to
the extent the trial court took this view, this too was error. (See People v.
Moore (1996) 44 Cal.App.4th 1323, 1332 [trial court violated duty under
section 1138 where answer “effectively told the jury the court could not help”
and “improperly left the jury with the responsibility for deciding a question of
law”].)
23
CALCRIM No. 3474, CALJIC No. 5.52.17 (Thomas, supra, 219 Cal.App.3d at
pp. 144–145.) After holding that Thomas had waived this argument because
he “himself requested the instructions as they were given,” the Court of
Appeal went on to find no likelihood of confusion on the part of the jury,
concluding that CALJIC No. 5.17 “is not a self-defense instruction at all. It
merely removes the element of malice aforethought, while making it clear the
person holding the defined belief still ‘kills unlawfully.’ On the other hand
the self-defense instructions given here[18] start out with the words, ‘[i]t is
lawful,’ thus showing the essential difference between the concepts on which
the jury is being instructed.” (Thomas, supra, p. 145.) But in Thomas, the
jury expressed no confusion about the instructions. Such was not the case
here.
The Attorney General’s brief goes on to address at length Brim’s
alternative argument that CALCRIM No. 3474 should have been modified or
omitted, an argument we do not reach. (Ante, fn. 14.) He contends that Brim
forfeited that argument, that CALCRIM Nos. 517 and 3474 are clear and
correct statements of the law, and that the instructions as a whole, together
with the arguments of counsel, demonstrate no reasonable likelihood that the
jury misunderstood them.
But the presumption relied on by the Attorney General that jurors
understood and followed the court’s instructions applies only “[i]n the absence
of any evidence of confusion on the part of the jury.” (People v. Forrest (2017)
17 “The right of self-defense exists only as long as the real or apparent
threatened danger continues to exist. When the danger ceases to appear to
exist, the right to use force in self-defense ends.” (CALJIC No. 5.52.)
18 It is unclear what “self-defense instructions” the Thomas court was
referring to, but they may have included, for example, CALJIC No. 5.30 (Self-
Defense Against Assault), which begins: “It is lawful for a person who is
being assaulted to defend [himself] [herself] from attack if . . . .”
24
7 Cal.App.5th 1074, 1083; see People v. Merriman (2014) 60 Cal.4th 1, 48
[presumption that jury followed court’s instructions applies “[a]bsent some
showing to the contrary”]; People v. Sanchez (2001) 26 Cal.4th 834, 852.) And
the fact remains that after a two-week trial, after hearing the arguments of
counsel, after being instructed by the court, and after many hours of
deliberations, the jury expressed confusion about the relationship between
CALCRIM No. 3474 and imperfect self-defense, which the Attorney General’s
brief concedes was a “central issue at trial.” As our colleagues in Division
One well put it, “[w]here a jury has expressed confusion about a legal
principle, it is no longer appropriate to assume that the jury can just ‘figure it
out’ from the instructions as a whole. Instead, the focus must be on whether
the trial court’s answer was sufficient to dispel the confusion.” (People v.
Doane (2021) 66 Cal.App.5th 965, 983.)
So what of the jury’s question? The Attorney General devotes barely
more than a page of substantive argument to it, simply asserting that “the
jury’s request for additional clarification on the law is most reasonably
understood as jurors exercising diligence during their deliberations in a
complex area of the law,” noting that we review a trial court’s decision about
how to respond to jury questions for abuse of discretion, and concluding that
“[p]ointing the jury to the applicable law is hardly an arbitrary or capricious
exercise” of that discretion.
To begin with, we know of no authority holding that questions from a
deliberating jury on a critical issue of law can be so readily dismissed as
jurors “exercising diligence,” nor does the Attorney General offer any.
Indeed, quite the opposite. (See, e.g., People v. Thompkins (1987) 195
Cal.App.3d 244, 252–253 (Thompkins) [“if jury instructions are important in
general, there is no category of instructional error more prejudicial than
25
when the trial judge makes a mistake in responding to a jury’s inquiry during
deliberations”].)
As to “[p]ointing the jury to the applicable law,” we acknowledge that it
has been said that “the trial court does not abuse its discretion when it
determines the best way to aid the jury is by directing the jury to reread the
applicable jury instructions that ‘are themselves full and complete.’ ” (People
v. Lua (2017) 10 Cal.App.5th 1004, 1017, quoting People v. Gonzalez, supra,
51 Cal.3d at p. 1213.) And such was arguably the case with the jury’s first
two questions, where answers might be available upon a careful rereading of
the instructions to which the trial court directed the jury. But when the jury
asked, based on an apparent misunderstanding of CALCRIM No. 3474, how
that instruction was to be harmonized with CALCRIM No. 517, we fail to see
how directing the jury to simply reread CALCRIM No. 517 (again) provided
any “full and complete” answer to its question. Nor did it “point[] the jury to
the applicable law” with respect to its question which, as discussed, was to be
found—if at all—by correlating several instructions, none of which was
mentioned. And all this when the answer to the jury’s question was simply,
“Yes.”
Moreover, the Attorney General’s argument proves too much. The trial
court’s “general obligation” under section 1138 is to “ ‘clear up any
instructional confusion expressed by the jury,’ ” not to point the jury to
technically correct statements of the law. (People v. Dykes, supra, 46 Cal.4th
at p. 802; see People v. Doane, supra, 66 Cal.App.5th at p. 983; People v.
Fleming (2018) 27 Cal.App.5th 754, 766 [“a trial court’s response to a jury
question can be erroneous even if it does not technically misstate the law”];
People v. Gavin (1971) 21 Cal.App.3d 408, 417–418 [“[t]he court’s failure to
26
clear up the jury’s confusion . . . was fundamentally unfair to the
defendant”].) In short, the trial court’s answer was error.
We end discussion on this issue recognizing the dangers trial courts
face in deviating from the standard instructions. As the Fourth District
Court of Appeal put it in Thompkins, supra, 195 Cal.App.3d 244, 252, “[e]ach
member of this panel has served as a superior court judge and we are
sensitive to the significant burdens of that office,” and we “recognize that
formulating a response to [jury] questions often requires consultation with
counsel and significant independent legal research.” (Id. at p. 253.) And we
pause here to note that, based on our review of the record, the trial court here
did a thoughtful and conscientious job with what was indisputably a lengthy
and difficult trial—and jury deliberations.
But compared to “stray[ing] from the language of form instructions
. . . [i]t is hardly preferable for a judge to merely repeat for a jury the text of
an instruction it has already indicated it doesn’t understand.” (Thompkins,
supra, 195 Cal.App.3d at p. 253.) Instead, the trial judge should
“thoughtfully consider[] the jury’s inquiry, clarif[y] it if necessary, stud[y] the
applicable legal principles, and respond[] to the jury in as simple and direct a
manner as possible.” (Id. at p. 253.)
We agree wholeheartedly, and in our view such is the teaching of
Beardslee, where our Supreme Court acknowledged that although “comments
diverging from the standard are often risky” and the trial court there “was
understandably reluctant to strike out on its own,” but nevertheless
concluded that “a court must do more than figuratively throw up its hands
and tell the jury it cannot help.” (Beardslee, supra, 53 Cal.3d at p. 97, citing
Thompkins, supra, 195 Cal.App.3d at pp. 250–251.) And—albeit in the civil
context—the benchbook for judges espouses the same principle. (See Cal.
27
Judges Benchbook: Civil Proceedings—Trial (CJER 2025) Jury Deliberations
and Conduct, § 13.40 [“When the jurors’ question suggests that they have
misunderstood the governing law, merely referring them to the instructions
the judge has already given may be inadequate . . . Instead, the judge must
give them an answer that is sufficient to dispel their confusion”], citing
People v. Doane, supra, 66 Cal.App.5th at p. 982; see also Fairbank et al., Cal.
Practice Guide: Civil Trials and Evidence (The Rutter Group 2025) ¶ 15:132
[court’s failure to “ ‘specifically guide the jury with appropriate instructions’ ”
in response to juror requests “may constitute reversible error” where original
instructions have left the jury “ ‘without a full understanding of the law
applicable to the case, and this lack of understanding is brought to the
attention of the court by the jury’s request for further guidance’ ”].)
We do not mean to imply that the trial court’s response to the jury’s
question here was not the result of thoughtful consideration. Because of the
lack of reporter’s transcript, we are simply in the dark as to the prosecutor’s
position on the question and how the trial court arrived at its determination
of how best to respond. (See Cal. Judges Benchbook: Civil Proceedings—
Trial, supra, § 13.34 [noting that conference regarding jury questions “should
be reported on the record if there is any disagreement, to note the objection
that has been made”].) But ultimately, the trial court here referred the jury
back to the very instruction that confused them, an instruction that, as we
have discussed, was confusing under the circumstances of this case. To be
sure, the trial court’s response was a technically correct statement of the law,
and its hesitation to go further quite understandable. But the trial court’s
obligation is not to provide an answer beyond reproach from legal scholars or
appellate court judges. Quite simply, the instructions are not worth the
paper they’re printed on if the jury fails to understand them. And what more
28
“simple and direct” answer could there have been to the jury’s question than
the one no party here disputes was also correct: “Yes”? (Thompkins, supra,
195 Cal.App.3d at p. 253.) This, we conclude, was what was required to
exercise discretion “in conformity with the spirit of the law and in a manner
to subserve and not to impede or defeat the ends of substantial justice.”
(Bailey v. Taaffe, supra, 29 Cal. at p. 424; People v. Jacobs, supra, 156
Cal.App.4th at pp. 737–738.)
The Error Was Prejudicial
A violation of section 1138 due to the trial court’s failure to adequately
answer a jury’s question is subject to the prejudice standard of People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Roberts (1992) 2
Cal.4th 271, 326.) That standard requires us to evaluate whether the
defendant has demonstrated that it is “reasonably probable that a result
more favorable to the [defendant] would have been reached in the absence of
the error.” (Watson, supra, at p. 836; People v. Sivongxxay (2017) 3 Cal.5th
151, 178.) In this context our Supreme Court has made clear that a
reasonable probability “ ‘ “ ‘does not mean more likely than not, but merely a
reasonable chance, more than an abstract possibility.’ ” ’ ” (People v. Wilkins
(2013) 56 Cal.4th 333, 351; People v. Eid (2010) 187 Cal.App.4th 859, 882;
People v. Hodges, supra, 213 Cal.App.4th at p. 539.)
Because the prosecution bore the burden of proving beyond a
reasonable doubt that Brim did not act in imperfect self-defense, the question
becomes whether “it is reasonably probable that one or more jurors would
conclude that the prosecution failed to meet [this] burden” absent the error.
(People v. Dryden (2021) 60 Cal.App.5th 1007, 1025; see Schuller, supra, 15
Cal.5th at pp. 254–255; People v. Hendrix (2022) 13 Cal.5th 933, 947, fn. 6
(Hendrix) [hung jury is a “more favorable” outcome under Watson].)
29
We conclude there was such a reasonable probability here. As
discussed, the jury’s question demonstrated that one or more jurors may have
erroneously believed, based on CALCRIM No. 3474, that they could not
reduce Brim’s murder conviction to one for voluntary manslaughter based on
a theory of imperfect self-defense if he killed Williams after the danger
Williams presented no longer objectively “exist[ed] or reasonably appear[ed]
to exist.”19 (CALCRIM No. 3474.) The prosecutor argued at length that the
video showed just such an end to any danger presented by Williams once
Brim obtained control of the knife toward the end of their altercation. And
the jury’s rejection of Brim’s claim of perfect self-defense, together with their
questions focused on voluntary manslaughter, suggest that they may have
agreed that there was an objective end to any danger while still crediting
Brim’s testimony that he subjectively feared for his life. There is a
“ ‘ “ ‘reasonable chance, more than an abstract possibility,’ ” ’ ” that had the
trial court cleared up the jury’s confusion regarding CALCRIM No. 3474, at
least one juror would have voted to acquit Brim of murder. (People v.
Wilkins, supra, 56 Cal.4th at p. 351.)
The Attorney General argues that any error was harmless under
Watson, “[g]iven the strong evidence of [Brim]’s guilt, and the weakness of his
defense.” He further asserts that Brim’s “inconsistent and implausible
testimony painted appellant as a liar, rendering his defense entirely
incredible.” We cannot agree.
19 To the extent that the trial court’s failure to clear up the jury’s
confusion allowed it to convict Brim of murder based on this invalid theory,
reversal is required. (See People v. Fleming, supra, 27 Cal.App.5th at p. 770;
In re Lopez (2023) 14 Cal.5th 562, 580; People v. Chun (2009) 45 Cal.4th
1172, 1201, superseded by statute on another ground as stated in People v.
Lamoureux (2019) 42 Cal.App.5th 241, 247–249.)
30
Our Supreme Court’s decision in Hendrix, supra, 13 Cal.5th 933 is
instructive. There, Hendrix was captured on surveillance video at a house in
Oxnard, where he attempted to break in. (Id. at p. 936.) When the police
arrived, Hendrix claimed to be looking for his friend Trevor, and “asserted
that a friend told him Trevor moved there.” (Id. at p. 937.) Hendrix was
charged with first degree burglary, and at trial the court erroneously gave
the general intent version of the CALCRIM jury instruction on mistake of
fact, which version required that such mistake be reasonable. (Id. at pp.
938–939; see CALCRIM No. 3406.) The Court of Appeal held that the error
was harmless under Watson, but our Supreme Court reversed. (Id. at p. 950.)
Because “[t]he misinstruction . . . effectively operated to impose an
unwarranted reasonableness requirement on Hendrix’s mistake of fact
claim,” “[c]ompeting assessments of Hendrix’s mental state occupied the vast
majority of closing argument,” and it “appear[ed] the jury did not find this to
be an open-and-shut case, despite the fact that Hendrix’s actions . . . were
recorded on video,” based on the jury’s having deadlocked and “requested a
transcript or readback of Hendrix’s jailhouse phone calls, suggesting a
particular concern with . . . Hendrix’s intentions,” our Supreme Court
concluded that the error was not harmless. (Id. at pp. 944–945, 947, 949–
950.)
A similar analysis applies here. The jury’s confusion regarding
CALCRIM No. 3474 and the trial court’s failure to resolve it may have
“imposed an unwarranted reasonableness requirement” on Brim’s claim of
imperfect self-defense, at least in the minds of one or more members of the
jury. (Hendrix, supra, at p. 945.) Brim’s mental state “occupied the vast
majority of closing argument”—indeed, it was the primary question for the
jury’s decision. (Id. at p. 945.) And the jury here, as in Hendrix, apparently
31
deadlocked during its deliberations, and asked multiple questions
demonstrating it was “particular[ly] concern[ed] with” Brim’s intentions,
“despite the fact that [Brim]’s actions . . . were recorded on video.” (Id. at p.
947.)
In evaluating the record for harmless error under Watson, we do not
“step[] into the role of the jury,” and we “may not . . . rest a harmless error
ruling on [our] own reweighing or reinterpretation of the evidence.”
(Hendrix, supra, 13 Cal.5th at p. 948.) As the Attorney General concedes,
“[i]ntent was the only issue at trial.” Had the trial court disabused the jury of
its apparent misunderstanding of CALCRIM No. 3474, we could be sure the
jury understood that in order to reduce Brim’s murder conviction to voluntary
manslaughter, Brim’s belief in the need to use deadly force in self-defense did
not need to be objectively reasonable; it was enough if it was genuinely held.
The question, properly understood, would thus have been purely one of
Brim’s credibility. We cannot say with confidence how the jury would have
answered this question, but we cannot—and must not—answer it ourselves.
(See Hendrix, supra, 13 Cal.5th at pp. 948–949; People v. Hovarter (2008) 44
Cal.4th 983, 996 [“ ‘the trier of fact is the sole arbiter of the credibility of a
witness’ ”].) While Brim’s version of events may not have been completely
compelling, it was certainly not “entirely incredible”—the prosecution not
disputing, for example, that Williams initiated at least their initial
confrontation, that he was a bigger man than Brim, and that he escalated the
altercation by drawing a knife and attempting to stab Brim. The jury
apparently agreed that the case was not “open-and-shut,” as demonstrated by
their lengthy deliberations, multiple questions, requests to review certain of
the evidence, and at one point, apparent deadlock. (Hendrix, supra, 13
Cal.5th at p. 947.)
32
In short, we conclude there is a “ ‘ “ ‘reasonable chance, more than an
abstract possibility’ ” ’ ” that the jury would have reached a different verdict
(or no verdict) but for the trial court’s error, and our review of the record
“leaves us ‘ “in serious doubt as to whether the error affected the result.” ’ ”
(People v. Wilkins, supra, 56 Cal.4th at p. 351; Hendrix, supra, 13 Cal.5th at
p. 946, quoting People v. Mower (2002) 28 Cal.4th 457, 484.) Accordingly, the
judgment cannot stand.
Finally, a word as to remedy. “ ‘An appellate court is not restricted to
the remedies of affirming or reversing a judgment. Where the prejudicial
error goes only to the degree of the offense for which the defendant was
convicted, the appellate court may reduce the conviction to a lesser degree
and affirm the judgment as modified, thereby obviating the necessity for a
retrial.’ ” (People v. Edwards (1985) 39 Cal.3d 107, 118; see § 1260.)
Our review of the record shows that Brim’s second degree murder
conviction is supported by substantial evidence, and Brim does not contend
otherwise. And the error in responding to the jury’s third question regarding
CALCRIM No. 3474 could not have affected its rejection of the exonerating
possibility of perfect self-defense, because that instruction does apply to such
possibility. Under these circumstances, we will modify the judgment to
reflect Brim’s conviction for voluntary manslaughter instead of second degree
murder. (See People v. Millbrook (2014) 222 Cal.App.4th 1122, 1151; People
v. Thomas (2013) 218 Cal.App.4th 630, 647.)
DISPOSITION
Brim’s conviction for second degree murder is reversed. The People
shall have 60 days from issuance of the remittitur to determine whether to
retry Brim for murder. Should the People elect not to do so, the judgment
shall be modified to reflect Brim’s conviction for voluntary manslaughter
33
instead of second degree murder, and the judgment as modified is affirmed.
In the event the judgment is modified, the trial court shall resentence Brim
accordingly.
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RICHMAN, ACTING P.J.
We concur.
MILLER, J.
DESAUTELS, J.
(A170747P)
35
Alameda County Superior Court
Trial Judge: Jennifer Madden, Judge
Counsel:
Cliff Gardner, under appointment by the Court of Appeal, and Lazuli Whitt,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Jeffrey M. Laurence, Senior Assistant Attorney General, Sarah J.
Farhat and Christen Somerville, Deputy Attorneys General for Plaintiff and
Respondent.
36