self-defense instruction in Washington

2022Janes, 121 Wn.2d at 237 (a self-defense instruction requires defendants to “produce some evidence regarding the statutory elements of a reasonable apprehension of great bodily harm, and imminent danger”); 2 State v. Espinosa, 8 Wn.

2019The State argues the prosecutor did not misstate the law, but simply highlighted the reasonableness element required for self-defense in response “to the defense argument, which attempted to portray the self-defense standard as being almost entirely subjective.” A claim of self-defense is assessed “from the standpoint of the reasonably prudent person, knowing all the defendant knows and seeing all the defendant sees.” State v. Janes, 121 Wn.2d 220, 238 , 850 P.2d 495 (1993).

2013State v. Bradley, 141 Wn.2d 731, 737 , 10 P.3d 358 (2000); accord State v. Walker, 136 Wn.2d 767, 772 , 966 P.2d 883 (1998) (“person relying on the self-defense claim must have had a reasonable apprehension of great bodily harm” (citing State v. Janes, 121 Wn.2d 220, 237 , 850 P.2d 495 (1993))).

2013State v. Bradley, 141 Wn.2d 731,737 , 10 PJd 358 (2000); accord State v. Walker, 136 Wn.2d 767,772 , 966 P.2d 883 (1998) ("person relying on the self-defense claim must have had a reasonable apprehension of great bodily harm" (citing State v. Janes, 121 Wn.2d 220, 237 , 850 P.2d 495 (1993))). 5 The judiciary also has the power and duty to review charging decisions at later stages of the case.

2013State v. Bradley, 141 Wn.2d 731, 737 , 10 P.3d 358 (2000); accord State v. Walker, 136 Wn.2d 767, 772 , 966 P.2d 883 (1998) (“person relying on the self-defense claim must have had a reasonable apprehension of great bodily harm” (citing State v. Janes, 121 Wn.2d 220, 237 , 850 P.2d 495 (1993))).

2013State v. Bradley, 141 Wn.2d 731,737 , 10 PJd 358 (2000); accord State v. Walker, 136 Wn.2d 767,772 , 966 P.2d 883 (1998) ("person relying on the self-defense claim must have had a reasonable apprehension of great bodily harm" (citing State v. Janes, 121 Wn.2d 220, 237 , 850 P.2d 495 (1993))). 5 The judiciary also has the power and duty to review charging decisions at later stages of the case.

2024See Riley, 137 Wn.2d at 910 ; Grott, 195 Wn.2d at 267 . 9 No. 57813-1-II case.

2020We review jury instructions de novo.13 Jury instructions are proper when they permit the parties to argue their theory of the case, do not mislead the jury, and correctly inform the jury of the applicable law, including the State’s burden of proof.14 A defendant may claim he or she acted in self-defense where the defendant has a subjective, reasonable belief of imminent harm from the victim.15 The amount of force used must be “not more than is necessary.”16 A defendant is entitled to a self-defense instruction when he or she meets the “‘initial burden of producing some evidence that his or her

2024Id. at 849 .

2022See Fisher, 185 Wn.2d at 849 (stating rule for self-defense).

2020The self-defense standard includes “both objective and subjective elements.” State v. Walden, 131 Wn.2d 469, 474 , 932 P.2d 1237 (1997).

2011Walden, 131 Wash.2d at 482-83 , 932 P.2d 1237 . ¶ 17 The trial court determines whether the jury should receive a self-defense instruction by applying a mixed analysis, with both subjective and objective components.

2003As was stated by our Supreme Court in State v. Craig, 82 Wn.2d 777, 781-82 , 514 P.2d 151 (1973) — a case in which the appellant and a co-defendant beat and stabbed a taxicab driver to death in the course of committing a robbery, after which the appellant was charged with felony murder and sought a self-defense instruction which the trial court properly refused: Nowhere in the statute is the state of mind of the defendant at the time of the killing made an element of the offense [of felony murder]. . . . . . .

2003As was stated by our Supreme Court in State v. Craig, 82 Wn.2d 777, 781-82 , 514 P.2d 151 (1973) — a case in which the appellant and a co-defendant beat and stabbed a taxicab driver to death in the course of committing a robbery, after which the appellant was charged with felony murder and sought a self-defense instruction which the trial court properly refused: Nowhere in the statute is the state of mind of the defendant at the time of the killing made an element of the offense [of felony murder]. . . . . . .

2025In a self-defense claim, “[t]he use of force is lawful and justified where the defendant has a ‘subjective, reasonable belief of imminent harm from the victim.’” State v. Grott, 195 Wn.2d 256, 266 , 458 P.3d 750 (2020) (quoting State v. LeFaber, 128 Wn.2d 896, 899 , 913 P.2d 369 (1996), abrogated on other grounds by State v. O’Hara, 167 Wn.2d 91 , 217 P.3d 756 (2009)).

2025In a self-defense claim, “[t]he use of force is lawful and justified where the defendant has a ‘subjective, reasonable belief of imminent harm from the victim.’” State v. Grott, 195 Wn.2d 256, 266 , 458 P.3d 750 (2020) (quoting State v. LeFaber, 128 Wn.2d 896, 899 , 913 P.2d 369 (1996), abrogated on other grounds by State v. O’Hara, 167 Wn.2d 91 , 217 P.3d 756 (2009)).

2018App. 367, 376 , 768 P.2d 509 (1989)(concluding that the trial court did not err by refusing the defendant's proposed instruction on justifiable homicide in resistance of a felony because the court's self-defense instruction allowed the defendant to argue his theory of the case), overruled on other grounds by State v. Wentz, 149 Wn.2d 342 , 68 P.3d 282 (2003).

2018App. 367, 376 , 768 P.2d 509 (1989)(concluding that the trial court did not err by refusing the defendant's proposed instruction on justifiable homicide in resistance of a felony because the court's self-defense instruction allowed the defendant to argue his theory of the case), overruled on other grounds by State v. Wentz, 149 Wn.2d 342 , 68 P.3d 282 (2003).

2017App. 86, 96 , 249 P.3d 202 (2011) (citing Walden, 131 Wn.2d at 482 6 No. 48112-0-II (Talmadge, J., dissenting)); see also State v. Currie, 74 Wn.2d 197, 198 , 443 P.2d 808 (1968) (In prosecution for assault, trial court properly refuses to instruct on self-defense where “[t]he undisputed evidence clearly establishes that the defendant was the aggressor and precipitated the incident in question.”); State v. Davis, 64 Wn.

1985As the Supreme Court in Currie noted, "An accused person who is an aggressor in an affray, or by acts or words provokes or brings on an affray, cannot invoke the doctrine of self-defense ..." Currie, 74 Wn.2d at 199 .

2018App. 754 , 9 P.3d 942 (2000), and State v. Aleshire, 89 Wn.2d 67 , 568 P.2d 799 (1977), abrogated in part on other grounds by State v. Dowling, 98 Wn.2d 542 , 656 P.2d 497 (1983), to support its argument that Jaca-Ortiz was not entitled to the self-defense instruction because he denied striking anyone.

2018App. 754 , 9 P.3d 942 (2000), and State v. Aleshire, 89 Wn.2d 67 , 568 P.2d 799 (1977), abrogated in part on other grounds by State v. Dowling, 98 Wn.2d 542 , 656 P.2d 497 (1983), to support its argument that Jaca-Ortiz was not entitled to the self-defense instruction because he denied striking anyone.

2023Id. at 799 . “[W]hen assessing a self-defense claim, the trial court applies both a subjective and objective test.” State v. Read, 147 Wn.2d 238, 242-43 , 53 P.3d 26 (2002).

2022App. 566, 577 , 127 P.3d 786 (2006). “[W]hen assessing a self-defense claim the trial court applies both a subjective and objective test.” State v. Read, 147 Wn.2d 238, 242-43 , 53 P.3d 26 (2002).

2020The self-defense standard includes “both objective and subjective elements.” State v. Walden, 131 Wn.2d 469, 474 , 932 P.2d 1237 (1997).

2011Walden, 131 Wash.2d at 482-83 , 932 P.2d 1237 . ¶ 17 The trial court determines whether the jury should receive a self-defense instruction by applying a mixed analysis, with both subjective and objective components.

2026It is not necessarily error to fail to provide a WPIC 17.04 instruction “when under the self-defense instruction given, counsel is free to argue that the defendant’s ‘reasonable belief that he was in danger could properly be a mistaken belief.’ ” State v. Kidd, 57 Wn.

2019One of the ironies of this case is that the self-defense claim was exceedingly weak, a fact that the trial court repeatedly noted while debating whether or not to give the 3 A humorous example of error in giving an aggressor instruction, although the facts of the cases are tragic, is State v. Kidd, 57 Wn.

2013State v. Acosta, 101 Wn.2d 612,615 , 683 P.2d 1069 (1984), abrogated on other 3 Mills, 154 Wn.2d at 6-15 (holding that the "to convict" instruction on felony harassment was inadequate when the "threat to kill" element was listed in a special verdict instruction instead of the "to convict" instruction). 4 State v. Valentine, 132 Wn.2d 1 , 935 P.2d 1294 (1997) (holding that a person cannot assert self-defense in an arrest where that person is faced only with a loss of freedom and is not resisting an attempt to inflict injury). 5Janes, ] 2] Wn.2d at 242 (concluding that certain evidence was not "

2013State v. Acosta, 101 Wn.2d 612,615 , 683 P.2d 1069 (1984), abrogated on other 3 Mills, 154 Wn.2d at 6-15 (holding that the "to convict" instruction on felony harassment was inadequate when the "threat to kill" element was listed in a special verdict instruction instead of the "to convict" instruction). 4 State v. Valentine, 132 Wn.2d 1 , 935 P.2d 1294 (1997) (holding that a person cannot assert self-defense in an arrest where that person is faced only with a loss of freedom and is not resisting an attempt to inflict injury). 5Janes, ] 2] Wn.2d at 242 (concluding that certain evidence was not "

2018App. 367, 376 , 768 P.2d 509 (1989)(concluding that the trial court did not err by refusing the defendant's proposed instruction on justifiable homicide in resistance of a felony because the court's self-defense instruction allowed the defendant to argue his theory of the case), overruled on other grounds by State v. Wentz, 149 Wn.2d 342 , 68 P.3d 282 (2003).

2018App. 367, 376 , 768 P.2d 509 (1989)(concluding that the trial court did not err by refusing the defendant's proposed instruction on justifiable homicide in resistance of a felony because the court's self-defense instruction allowed the defendant to argue his theory of the case), overruled on other grounds by State v. Wentz, 149 Wn.2d 342 , 68 P.3d 282 (2003).

2018App. 367, 376 , 768 P.2d 509 (1989)(concluding that the trial court did not err by refusing the defendant's proposed instruction on justifiable homicide in resistance of a felony because the court's self-defense instruction allowed the defendant to argue his theory of the case), overruled on other grounds by State v. Wentz, 149 Wn.2d 342 , 68 P.3d 282 (2003).

2018App. 367, 376 , 768 P.2d 509 (1989)(concluding that the trial court did not err by refusing the defendant's proposed instruction on justifiable homicide in resistance of a felony because the court's self-defense instruction allowed the defendant to argue his theory of the case), overruled on other grounds by State v. Wentz, 149 Wn.2d 342 , 68 P.3d 282 (2003).

2000The Court of Appeals in Ross found "no case law exists construing the proper self-defense instruction in the context of RCW 9A.36.031(1)(g)" ( Ross, 71 Wash.App. at 841 , 863 P.2d 102 (assaulting an officer while performing official duties)), falling back to Westlund and asserting Holeman `s approval.

2000The Court of Appeals in Ross found “no case law exists construing the proper self-defense instruction in the context of RCW 9A.36.031(l)(g)” (Ross, 71 Wn.