People v. Christian S. , 7 Cal. 4th 768 ( 1994 )

Opinion

BAXTER, J.

Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter. The question is whether the Legislature abrogated this doctrine in 1981 by amending the Penal Code to eliminate the diminished capacity defense. We hold the doctrine of imperfect self-defense was not abolished.

The 1981 amendments to Penal Code sections 28, 29, and 188 do not manifest the Legislature’s intention to mandate a murder conviction for a person who actually but unreasonably believes he must use lethal force to defend himself against imminent death or great bodily injury. Those amendments were a direct response to the public outcry against the diminished capacity defense successfully used in the infamous trial of a San Francisco City and County supervisor who had killed the city’s mayor and another supervisor. That case raised no question of self-defense. Nothing in the language, history, or context of the amendments compels the conclusion that the Legislature intended to abrogate the well-established doctrine of imperfect self-defense—a doctrine that differs significantly from the doctrine of diminished capacity.

Facts

Christian S., a minor, seeks review of a judgment making him a ward of the juvenile court after sustaining a petition (Welf. & Inst. Code, § 602) charging him with the second degree murder of Robert Elliott (Elliott). Because we shall determine only a question of law and remand for further proceedings, extended factual recitation is unnecessary.

Briefly stated, the evidence shows that Elliott was a so-called skinhead and a possible gang member. After being physically and verbally harassed and threatened by Elliott’s friends for about a year, Christian (hereafter, defendant) began to carry a handgun. Elliott, who blamed defendant for damaging Elliott’s truck, chased defendant down the beach one day, repeatedly threatening “to get him” and challenging him to fire his weapon. Elliott halted his advance each time defendant pointed his gun at Elliott. Finally, after some additional taunting by Elliott, defendant shot and killed Elliott from a range of at least 20 feet.

Challenging the ensuing murder charge, defendant raised claims of self-defense (Pen. Code, § 197) and heat of passion or provocation (Pen. Code, § 192, subd. (a)), and contended the doctrine of imperfect self-defense negated malice, thereby reducing his offense to voluntary manslaughter. The trial court rejected all the defenses, concluding defendant had committed a killing that, if committed by an adult, would have constituted second degree murder. The court made no formal findings at the time of its ruling, but it implicitly found inadequate provocation or heat of passion for a voluntary manslaughter finding. And, although the court also rejected the claims of self-defense and imperfect self-defense, we cannot determine from the record whether the court rejected imperfect self-defense on the ground that the doctrine was no longer a tenable legal doctrine in any case or on the fact-based ground that defendant had no actual belief in the need for self-defense so that the doctrine did not apply in this case.

The Court of Appeal reversed. It ruled that the record “unequivocally established” that when defendant fired the gun, he feared that Elliott was about to “seriously” harm him. The court also interpreted the record as reflecting that the trial court had found that defendant had acted with an “honest belief’ in the need to defend himself. The Court of Appeal held the Legislature had not abrogated the doctrine of imperfect self-defense and that, applying the doctrine, defendant’s state of mind—that is, his honest belief— negated any finding that defendant acted with malice. In light of its decision, the Court of Appeal did not reach defendant’s additional claims on appeal, namely, whether the trial court erred (1) in finding inadequate provocation to support a “heat of passion” defense that would reduce the offense to voluntary manslaughter (Pen. Code, § 192, subd. (a)), and (2) in refusing to allow expert testimony regarding the so-called fight-or-flight syndrome.

Discussion

1. Status of imperfect self-defense and diminished capacity doctrines in 1981

“Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” (Pen. Code, § 187, subd. (a), italics added.) By contrast, “Manslaughter is the unlawful killing of a human being without malice.” (Pen. Code, § 192, italics added.) “The vice is the element of malice; in its absence the level of guilt must decline.” (People v. Flannel (1979) 25 Cal.3d 668, 680 [160 Cal.Rptr. 84, 603 P.2d 1] [Flannel].) The doctrines of imperfect self-defense and diminished capacity arose from this principle.

We explained imperfect self-defense in Flannel, supra, 25 Cal.3d 668. “It is the honest belief of imminent peril that negates malice in a case of complete self-defense; the reasonableness of the belief simply goes to the justification for the killing.” (Id., at p. 679.) We concluded that “An honest but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury negates malice, aforethought, the mental element necessary for murder, so that the chargeable offense is reduced to manslaughter.” (Id., at p. 674, some italics omitted.) (Although Flannel and other opinions referred to an “honest belief” we shall use the more precise term “actual belief” because it avoids the confusing, suggestion inherent in the phrase “honest belief’ that a person could have a “dishonest belief,” i. e., that a person could believe something he does not believe.)¹

This principle had common law antecedents (Flannel, supra, 25 Cal.3d at p. 679) but was not a purely common law defense. Rather, because malice is a statutory requirement for a murder conviction (Pen. Code, § 187, subd. (a)), the statute required courts to determine whether an actual but unreasonable belief in the imminent need for self-defense rose to the level of malice within the statutory definition. The doctrine thus had statutory as well as common law roots.

We observed in Flannel, supra, 25 Cal.3d 668, 681, that the doctrine had been “obfuscated by infrequent reference and inadequate elucidation” and thus, before the trial in that case, had not become a general principle of law requiring a sua sponte instruction. More important for our present purpose, though, is Flannel's conclusion that in future cases imperfect self-defense would be deemed to be so well-established a doctrine that it “should be considered a general principle for purposes of jury instruction.” (Id., at p. 682.) Thus, by 1981 imperfect self-defense was demonstrably and firmly established.

Diminished capacity was also well established by that time. “[Mjalice aforethought could be negated by showing that a person who intentionally killed was incapable of harboring malice aforethought because of a mental disease or defect or intoxication. [Citation.] To explain how diminished capacity, negated malice, we redefined and expanded the mental component of malice aforethought beyond that stated in [Penal Code] section 188 to include a requirement that the defendant was able to comprehend the duty society places on all persons to act within the law, i.e., that he had an ‘awareness of the obligation to act within the general body of laws regulating society.’ ” (People v. Saille (1991) 54 Cal.3d 1103, 1110 [2 Cal.Rptr.2d 364, 820 P.2d 588], fn. omitted, quoting People v. Conley (1966) 64 Cal.2d 310, 322 [49 Cal.Rptr. 815, 411 P.2d 911].) Absent this awareness by the defendant, a court could not find malice.

Because imperfect self-defense and diminished capacity were firmly established by 1981, we assume the Legislature was aware of both doctrines and would have made clear any intent to abolish either doctrine. (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 303 [216 Cal.Rptr. 443, 702 P.2d 601]; Estate of McDill (1975) 14 Cal.3d 831, 839 [122 Cal.Rptr. 754, 537 P.2d 874].)

2. The statutory amendments

The language and history of the 1981 Penal Code amendments leave no question that the Legislature intended to abolish the diminished-capacity defense. The Legislature explicitly and repeatedly stated that it was doing so. Conspicuously absent, however, is any similarly clear indication the Legislature also intended to eliminate imperfect self-defense.

A. The language

“We begin with the fundamental rule that our primary task in construing a statute is to determine the Legislature’s intent.” (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 724 [257 Cal.Rptr. 708, 771 P.2d 406].) We must begin with the words of the statute. (Ibid.) Several amendments were enacted together as part of Senate Bill No. 54. Those amendments included the addition to the Penal Code of section 28, which eliminated the diminished-capacity defense, and section 29, which limited psychiatric testimony regarding a defendant’s mental state. The Legislature also changed Penal Code section 189’s definition of premeditation and deliberation and amended section 22 to restrict a defendant’s use of evidence of voluntary intoxication to negate mental capacity.

None of these amendments contains a single reference to imperfect self-defense. Rather, they show that the Legislature referred specifically to the defenses and types of evidence that were being eliminated or restricted. For example, Penal Code section 28, subdivision (b) states, “As a matter of public policy there shall be no defense of diminished capacity, diminished responsibility, or irresistible impulse in a criminal action or juvenile adjudication hearing.” (Italics added.) The most reasonable inference to be drawn from the absence in these amendments of any reference to imperfect self-defense is that the Legislature intended no change in that doctrine, much less its abrogation.

Penal Code section 188, the statute on which respondent primarily relies, is likewise devoid of any reference to imperfect self-defense. Before the 1981 amendments, section 188 stated: “Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” The 1981 amendments did not change this language. Rather, the amendments added the following language: “When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought. An awareness of the obligation to act within the general body of laws regulating society is not included within the definition of malice.” (Stats. 1981, ch. 404, § 6, p. 1593, italics added.) This new language clearly refers to the diminished-capacity defense. The amendment uses the same language we used before 1981 in explaining the premise that malice required an “. . . awareness of the obligation to act within the general body of laws regulating society . . . .” (People v. Conley, supra, 64 Cal.2d 310, 322, italics added.) The Legislature made absolutely clear its intent to abrogate the diminished-capacity defense.

There is no similar reference to imperfect self-defense in the 1981 amendment to Penal Code section 188. We decline to insert into the statute what the Legislature omitted. That is not our function.

Respondent seems to suggest, however, that the doctrines of diminished capacity and imperfect self-defense were so closely related that, when the Legislature abrogated the former in 1981, it must have acted, albeit silently and perhaps inadvertently, to eliminate imperfect self-defense as well. We disagree.

First, we are aware of no authority that supports the notion of legislation by accident. If respondent means the Legislature abrogated imperfect self-defense by implication, we reject that view as well. “[A]n intention to legislate by implication is not to be presumed.” (First M. E. Church v. Los Angeles Co. (1928) 204 Cal. 201, 204 [267 P. 703]; Educational & Recreational Services, Inc. v. Pasadena Unified Sch. Dist. (1977) 65 Cal.App.3d 775, 782 [135 Cal.Rptr. 594].)

Second, respondent reads too much into the discussion in Flannel, supra, 25 Cal.3d 668, of mental capacity, as it had been construed and applied in People v. Conley, supra, 64 Cal.2d 310, 322. Although “Flannel[, supra, 25 Cal.3d 668] relied upon the expanded mental component of malice in formulating its imperfect self-defense doctrine, its reliance was only partial. Independent of this expanded mental component and independent of diminished capacity, Flannel regarded imperfect self-defense as a factor which —just like ‘the statutorily suggested “sudden quarrel or heat of passion” —can negate malice aforethought. . . (People v. De Leon (1992) 10 Cal.App.4th 815, 822 [12 Cal.Rptr.2d 825], quoting Flannel, supra, 25 Cal.3d 668, 672.) The De Leon court’s observation was well taken. The doctrine of imperfect self-defense had a lineage independent of the notion of mental capacity set forth in Conley, supra, 64 Cal.2d 310. In Flannel itself, supra, 25 Cal.3d 668, we traced the long development of the doctrine in California courts. (People v. Wells (1949) 33 Cal.2d 330 [202 P.2d 53]; People v. Lewis (1960) 186 Cal.App.2d 585 [9 Cal.Rptr. 263]; Roads v. Superior Court (1969) 275 Cal.App.2d 593 [80 Cal.Rptr. 169]; People v. Sedeno (1974) 10 Cal.3d 703 [112 Cal.Rptr. 1, 518 P.2d 913].) Indeed, 30 years before the diminished-capacity defense was allowed, a California court approved the imperfect self-defense doctrine: “ ‘[I]f the act is committed under the influence of an uncontrollable fear of death or great bodily harm, caused by the circumstances, but without the presence of all the ingredients necessary to excuse the act on the ground of self-defense, the killing is manslaughter’ [citation].” (People v. Best (1936) 13 Cal.App.2d 606, 610 [57 P.2d 168].) Several other states also had approved the imperfect self-defense doctrine long before the notion of diminished capacity was approved in Conley, supra, 66 Cal.2d 310, 322. (Allison v. State (1905) 74 Ark. 444 [86 S.W. 409]; State v. Clark (1904) 69 Kan. 347 [77 P. 287]; Commonwealth v. Colandro (1911) 231 Pa. 343 [80 A. 571]; State v. Swift (1926) 53 N.D. 916 [208 N.W. 388]; State v. Foutch (1896) 95 Tenn. 711 [34 S.W. 423]; State v. Kidd (1918) 24 N.M. 572 [175 P. 772]; Hartfield v. State (1936) 176 Miss. 776 [170 So. 531].)²

Put simply, as the De Leon court, supra, 10 Cal.App.4th 815, correctly observed, Flannel, supra, 25 Cal.3d 668, had two independent premises: (1) the notion of mental capacity set forth in Conley, supra, 64 Cal.2d 310, 322, and (2) a grounding in both well-developed common law and in the statutory requirement of malice (Pen. Code, § 187). The 1981 amendments make clear the Legislature intended to eliminate the notion of diminished capacity. Thus, that part of the reasoning in Flannel, supra, 25 Cal.3d 668, is no longer valid. But, Flannel's other premise was not affected by the amendments.

Third, despite the discussion in Flannel, supra, 25 Cal.3d 668, of mental capacity, neither that opinion nor the other cases approving imperfect self-defense could have misled the Legislature into reasonably believing that the doctrine was the same as, or even inextricably bound up with, the diminished-capacity defense. We made clear in Flannel that the two doctrines were not coextensive: “We disagree that the doctrine of unreasonable belief is necessarily bound up with or limited by the concepts of either heat of passion or diminished capacity." (Flannel, supra, 25 Cal.3d 668, 677, italics added.) The Legislature was, of course, aware of Flannel and thus knew that we had noted the difference between the two doctrines. We are not persuaded the Legislature would have attempted to eliminate imperfect self-defense by referring only to the diminished-capacity defense in the amendment to Penal Code section 188. (We subsequently reiterated the distinction between the two doctrines when we concluded in People v. Saille, supra, 54 Cal.3d 1103 (Saille), that the Legislature had abrogated the diminished-capacity defense. Concerning imperfect self-defense, we observed, “This doctrine has no application to the facts before us ... ." (Id., at p. 1107, fn. 1, italics added).)

Fourth, even if we had not emphasized the difference between the two doctrines, that difference would have been patent, and we assume the Legislature would have understood this. The two doctrines relate to the concept of malice, but the similarity ends there. Unlike diminished capacity, imperfect self-defense is not rooted in any notion of mental capacity or awardness of the need to act lawfully. To the contrary, a person may be entirely free of any mental disease, defect, or intoxication and may be fully aware of the need to act lawfully—and thus not have a diminished capacity—but actually, although unreasonably, believe in the need for self-defense. Put simply, an awareness of the need to act lawfully does not—in fact or logic—depend on whether the putative victim’s belief in the need for self-defense is correct. A person who actually believes in the need for self-defense necessarily believes he is acting lawfully. He is thus aware of the obligation to act lawfully. A defendant could assert one doctrine even though the facts did not support the other. The diminished-capacity defense could be—and often has been—asserted when self-defense was not an issue; and, conversely, imperfect self-defense could be raised when there was no claim of diminished capacity.

In short, respondent fails to persuade us that the doctrines of diminished capacity and imperfect self-defense were so closely related that the Legislature believed its elimination of diminished capacity also would abrogate, silently but necessarily, the doctrine of imperfect self-defense. The Legislature did not refer to imperfect self-defense. The language added to Penal Code section 188 by the 1981 amendments did not eliminate imperfect self-defense.

The question then is whether Penal Code section 188’s pre-1981 definition of malice mandates a finding of malice (and thus murder) when a person kills with an actual but unreasonable belief in the need for self-defense against imminent death or great bodily injury. Section 188 states, “It [malice] is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (Italics added.)

This inartful language leads to two conflicting views of Penal Code section 188’s definition of express malice. Defendant contends the word “unlawfully” modifies the word “intention” so that the statute requires an intent to act unlawfully or, put in everyday language, the defendant must have a wrongful intent. Taking a different view, respondent construes the definition of express malice to mean that “unlawfully” refers not to the defendant’s intent, but only to whether the act is later found to be unlawful. That is, the defendant need not have intended to act unlawfully. Rather, he need only to have intended to kill. Even if he intended to act lawfully, he had express malice and thus committed murder if the killing is later found to be unlawful.

We believe defendant’s construction of the statute is the more reasonable. Respondent’s approach substitutes an unlawful consequence for an unlawful intent. This view also reverses the normal way in which malice and murder are understood. As respondent would have it, if a person kills someone lawfully, the killer has no malice, but if he kills someone unlawfully, he has malice. Of course, whether the killing is unlawful is the ultimate question and can be determined only with hindsight. Thus, under respondent’s view, the defendant’s mental state at the time of the killing will depend on whether the killing is later determined to be unlawful. The defendant’s intent would become—not a fact to be determined—but the result of a determination of whether he acted unlawfully.³

We also reject the suggestion that we previously decided in Saille, supra, 54 Cal.3d 1103, that Penal Code section 188’s definition of express malice does not require an intent to act unlawfully. This reads too much into Saille. It quotes a Court of Appeal decision that, in turn, relies on another Court of Appeal decision for the proposition that, ‘“The adverb “unlawfully” in the express malice definition means simply that there is no justification, excuse, or mitigation for the killing recognized by the law.’ ” (Saille, supra, 54 Cal.3d at p. 1115, quoting People v. Bobo (1990) 229 Cal.App.3d 1417, 1440-1441 [271 Cal.Rptr. 277], citing People v. Stress (1988) 205 Cal.App.3d 1259, 1268 [252 Cal.Rptr. 913].) Respondent asserts this observation is inconsistent with the doctrine of imperfect self-defense. Not so. In its very next sentence after the one quoted in Saille, supra, 54 Cal.3d at page 1115, the Bobo court, supra, 229 Cal.App.3d at page 1441, explained, “Thus, in the wake of the 1981 legislation, voluntary manslaughter encompasses only an intentional killing resulting from a sudden quarrel or heat of passion (with adequate provocation), and perhaps a killing arising from an honest but unreasonable belief in the need to defend.” (Bobo, supra, 229 Cal.App.3d 1417, 1441, italics added.) Even the Bobo court itself did not suggest that its view of section 188’s express malice definition would necessarily prohibit imperfect self-defense. Indeed, the court made clear it was not suggesting as much. The passing reference in Saille, supra, 54 Cal.3d 1103, to this equivocal observation in Bobo, supra, 229 Cal.App.3d 1417, is too slender a reed on which to base the conclusion that Saille decided the issue now before us. Indeed, the Saille court made clear it was not deciding this issue: “That [imperfect self-defense] doctrine applies to reduce an intentional killing from murder to manslaughter when a person kills under an honest [i.e., actual] but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury. (People v. Flannel[, supra,] 25 Cal.3d 668, 674-680 [citation].) This doctrine has no application to the facts before us, and we do not decide whether it has been affected by Proposition 8 and the 1981 legislation.” (Saille, supra, 54 Cal.3d at p. 1107, fn. 1, italics added; see also People v. De Leon, supra, 10 Cal.App.4th at p. 822 [noting our disclaimer in Saille, supra, 54 Cal.3d at p. 1107, fn. 1, that we were not deciding the continued validity of imperfect self-defense].)

Perhaps most important, even though we are not persuaded by respondent’s view of Penal Code section 188, we acknowledge the inherent ambiguity in the statute’s definition of express malice. “ ‘When language which is reasonably susceptible of two constructions is used in a penal law ordinarily that construction which is more favorable to the offender will be adopted.’ ” (People v. Stuart (1956) 47 Cal.2d 167, 175 [302 P.2d 5, 55 A.L.R.2d 705], quoting People v. Ralph (1944) 24 Cal.2d 575, 581 [150 P.2d 401]; In re Tartar (1959) 52 Cal.2d 250, 256 [339 P.2d 553].) Because the language of section 188’s definition of express malice is, at the very least, reasonably susceptible to the construction asserted by defendant, we adopt that construction.⁴

B. The legislative history

Because there is ambiguity, we may properly also look to the legislative history of the 1981 amendments. (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 830 [15 Cal.Rptr.2d 679, 843 P.2d 624].) That history, though not unequivocal, leads to the same conclusion. We have not found a single reference to eliminating imperfect self-defense or even a clue that doing so was considered by the Legislature. Time after time, those involved in the legislative process made clear the purpose was to eliminate the diminished-capacity defense.

For example, an extensive analysis of the amendments by the Legislature’s Joint Committee for the Revision of the Penal Code was titled: The Diminished Capacity Defense: Why Senate Bill 54?, and the committee explained, “The recent cases of Dan White in San Francisco and Richard Chase in Sacramento, brought to the public’s attention an area of long standing controversy, the defenses of diminished capacity and insanity in criminal prosecution. ...[][] It [Senate Bill No. 54] would repeal the defenses of voluntary intoxication and diminished capacity.” (Joint Com. for Revision of the Pen. Code Rep. (Sept. 3,1981) p. 1 (1981-1982 Reg. Sess.).)

The same joint committee explained to the Governor’s office that “[t]he defenses of diminished capacity, diminished responsibility, and irresistible impulse are repealed. . . .” (Letter from Joint Com. for the Revision of the Pen. Code to Governor’s Deputy Legal Affairs Sect., Sept. 4, 1981, italics added.) There was no suggestion of eliminating imperfect self-defense. To the contrary, the same analysis stated that “to reduce murder to manslaughter, except in the delusional self-defense kinds of cases, there will have to be a showing of provocation, the traditional basis of manslaughter, to reduce murder to manslaughter.” (Ibid., italics added.)

The Governor’s staff held the same view, explaining that Senate Bill No. 54 “makes a number of substantive and procedural changes relative to the general issue of diminished capacity defenses . . . [and is] an attempt to change the focus from the defendant’s general capacity to form a given mental state to the ultimate question of whether the defendant in fact actually had the required mental state.” (Analysis of Sen. Bill No. 54 by Governor’s Legal Affairs Sect., pp. 1-2, italics in original.) As explained above, the doctrine of imperfect self-defense is based on the defendant’s actual intent, not his capacity to form a particular intent.

Many other references to diminished capacity could be noted but would be unnecessary because the point is clear. The extensive analyses of the legislation by both its supporters and its opponents are replete with discussions of the need and desire to abolish diminished capacity. But there is no discussion, not a single mention, of also eliminating imperfect self-defense.

3. Public policy

The question before us is, of course, one of statutory construction and we do not decide whether the Legislature in 1981 should have eliminated imperfect self-defense or whether it should do so now. That is a public policy issue properly left to the Legislature. As we recently observed in construing another group of statutes, “Our holding is based on the Act as it is written, not on a different, perhaps broader, version that could have been, or still may be, enacted.” (Waste Management of the Desert v. Palm Springs Recycling Center, Inc., ante, 478 at p. 490 [28 Cal.Rptr.2d 461, 869 P.2d 440].) Public policy, however, is a relevant, albeit secondary, consideration for our decision in the present case. We are asked in this case to decide whether the Legislature intended to abolish a well-established legal doctrine that raises significant public policy considerations. We are not persuaded the Legislature would have silently, or at best obscurely, decided so important and controversial a public policy matter and created a significant departure from the existing law.

Indeed, a pending bill, Senate Bill No. 1144, generally relating to imperfect self-defense, has sparked extensive public comment and news coverage. Similarly, this case has attracted amici curiae whom one would not expect to join forces, ranging from defendants’ rights groups to law-and-order and women’s rights supporters. (Amici curiae for defendant are Orange County Women Lawyers Association, Criminal Justice Legal Foundation, California Public Defenders’ Association, Public Defender of Orange County, Office of Public Defender of the City and County of San Francisco, and California Attorneys for Criminal Justice.) These groups raise significant issues regarding imperfect self-defense, including women’s safety, the right of otherwise law-abiding citizens to defend themselves, and the need for legal distinctions based on moral culpability.

We find no indication the Legislature considered any of the policy issues attendant to elimination of imperfect self-defense. Of course, reasonable minds might differ on how these issues should be resolved. And, we do not suggest that the Legislature is required to give plenary, or any particular level of consideration, to an issue. The depth of the debate is the domain of the Legislature. But the absence of any debate or clear resolution of this matter further suggests the Legislature did not intend any change in the law or even consider the question. Unlike the dissent, we reject the view that the Legislature silently enacts major social policy. That view renders legislative intent—traditionally, the touchstone of statutory construction—a nullity.

4. Conclusion

We hold the Legislature has not, whether in the 1981 amendments to the Penal Code or otherwise, eliminated the doctrine of imperfect self-defense. When the trier of fact finds that a defendant killed another person because the defendant actually but unreasonably believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and cannot be convicted of murder.

Respondent and others have suggested this defense will lead to a proliferation of unfounded claims of self-defense. We leave that concern to the Legislature. We caution, however, that the doctrine is narrow. It requires without exception that the defendant must have had an actual belief in the need for self-defense. We also emphasize what should be obvious. Fear of future harm—no matter how great the fear and no matter how great the likelihood of the harm—will not suffice. The defendant’s fear must be of imminent danger to life or great bodily injury. “ ‘[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with.’’. . . [f] This definition of imminence reflects the great value our society places on human life.” (People v. Aris (1989) 215 Cal.App.3d 1178,1187,1189 [264 Cal.Rptr. 167], italics added.) Put simply, the trier of fact must find an actual fear of an imminent harm. Without this finding, imperfect self-defense is no defense.

We also emphasize that whether the defendant actually held the required belief is to be determined by the trier of fact based on all the relevant facts. It is not required to accept the defendant’s bare assertion of such a fear. And, of course, a defendant’s evidence of self-defense is subject to all the normal evidentiary rules, including Evidence Code sections 350 and 352. Finally, we reiterate that, just as with perfect self-defense or any defense, “[a] trial court need give a requested instruction concerning a defense only if there is substantial evidence to support the defense." (People v. Aris, supra, 215 Cal.App.3d at p. 1192, italics added.)

Disposition

Despite our extensive scrutiny of the record, we are unable to determine with certainty the precise basis of the trial court’s determination that defendant was not entitled to the benefit of the imperfect self-defense doctrine. More specifically, the record is debatable whether the trial court found that defendant had an actual belief in the need for self-defense. The Court of Appeal read the record as reflecting that the trial court did accept defendant’s assertion of an actual fear but that the trial court acted on a “basic misunderstanding of the concept [of imperfect self-defense], as indicated by the statement that an honest but unreasonable belief in the need to defend carries with it the unlawful intent to kill.” That is a fair reading of the record, but it also indicates that the trial court found that defendant lacked even an actual belief. Of course, this determination is dispositive. If defendant lacked even an actual belief, he is not entitled to the imperfect self-defense doctrine. If, however, he had an actual but unreasonable belief, he is entitled to the doctrine as set forth in this opinion.

We therefore reverse the judgment of the Court of Appeal and remand to that court with directions to remand this proceeding to the trial court: (1) To enter in the record, based on the proceedings previously held in that court, a specific finding of whether defendant held an actual belief of imminent harm; and (2) to thereupon conduct such further proceedings as may be warranted by our decision.

In light of our decision, we need not reach defendant’s additional claims on appeal. If there is an appeal from the proceedings after our remand, defendant can reassert those claims at that time.

Mosk, J., Kennard, J., Arabian, J., and George, J., concurred.

1 It is well established that the ordinary self-defense doctrine—applicable when a defendant reasonably believes that his safety is endangered—may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified. (See generally, 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Defenses, § 245, p. 280; 2 Robinson, Criminal Law Defenses (1984) § 131(b)(2), pp. 74-75.) It follows, a fortiori, that the imperfect self-defense doctrine cannot be invoked in such circumstances. For example, the imperfect self-defense doctrine would not permit a fleeing felon who shoots a pursuing police officer to escape a murder conviction even if the felon killed his pursuer with an actual belief in the need for self-defense.

2 As another state’s high court has more recently observed, a majority of those states that have considered the doctrine of imperfect self-defense has approved the doctrine. (State v. Faulkner (1984) 301 Md. 482 [483 A.2d 759]; see also People v. Guest (1986) 115 Ill.2d 72 [104 Ill.Dec. 698, 503 N.E.2d 255]; Wood v. State (Okla.Crim.App. 1971) 486 P.2d 750; State v. Mendoza (1977) 80 Wis.2d 122 [258 N.W.2d 260].)

3 We emphasize that our discussion of this point is limited to the context of a claim of imperfect self-defense, which is based on a defendant’s assertion that he lacked malice under Penal Code section 188 because he acted under an unreasonable mistake of fact—that is, the need to defend himself against imminent peril of death or great bodily harm. We do not suggest that an unreasonable mistake of fact would be a defense under Penal Code section 26. Nor do we suggest that malice would be negated by a mistake of law, for example, if a defendant killed with the mistaken belief that he could properly use deadly force to protect his parked automobile against a vandal.

4 Although the focus of the parties in this court has been the meaning of Penal Code section 188’s definition of express malice, the record is not clear whether the trial court’s conclusion of second degree murder was based on a finding of express malice rather than implied malice. (The prosecutor referred to implied malice in closing argument.) Or, stated more simply, we cannot determine with certainty if the trial court found that defendant intended to kill rather than to wound Elliott.

This ambiguity, however, does not affect the applicability of the imperfect self-defense doctrine, because a defendant’s actual belief in the need for self-defense against imminent peril would negate a finding of implied as well as express malice. As already noted, under section 188 malice is implied “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” As Justice Traynor explained in his concurring opinion in People v. Thomas (1953) 41 Cal.2d 470, 480 [261 P.2d 1], implied malice is shown when “the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death.” (Italics added.) A defendant who acts with the requisite actual belief in the necessity for self-defense does not act with the base motive required for implied malice, i.e., with “an abandoned and malignant heart.” (Accord, People v. Wells, supra, 33 Cal.2d 330, 345 [imperfect self-defense negates “malice aforethought” element of Penal Code section 4500 (assault by a life prisoner “with malice aforethought,” a capital offense)].) A contrary conclusion, namely, that imperfect self-defense applies only in cases of express, but not implied, malice would lead to a totally anomalous and absurd result, in which a defendant, who unreasonably believes that his life is in imminent danger, would be guilty only of manslaughter if he acts with the intent to kill his perceived assailant, but would be guilty of murder if he does not intend to kill, but only to seriously injure, the assailant. There is no authority to support such an incongruous rule.