P. v. Bonds
Defendant timely appealed a judgment entered against him following a jury trial in which he was found guilty of second-degree murder. On appeal, appellant contends the trial court had a sua sponte duty to instruct the jury with paragraph from the 2004 revision to CALJIC Nos. 5.54 and 5.56 which provides that an initial aggressor need not withdraw and may use reasonable (even lethal) force to defend himself if the victim of that initial, simple assault responds with a sudden and deadly counter-assault from which the initial aggressor cannot safely withdraw. Appellant argues that this omission constitutes reversible error because it deprived him of his sole defense against the allegations. The trial court did not err by failing to give this instruction because the instruction was not supported by substantial evidence. Additionally, because appellant did not rely on the instruction for his defense, his substantive rights were not violated.
Appellant further contends (and respondent agrees) the cane use enhancement should have been stayed. Court affirmed as modified.
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