Filed 5/15/24 P. v. Whalen CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

KENNETH ROBBIE 

WHALEN,

 Defendant and Appellant.

2d Crim. No. B326184

(Super. Ct. No. 18CR05267)

(Santa Barbara County)

Kenneth Robbie Whalen appeals a judgment following his 

conviction of second degree murder (Pen. Code, § 187, subd. (a), 

189) with jury findings that he personally used a deadly weapon

(§ 12022, subd. (b)). He was sentenced to 16 years to life in state 

prison. We conclude, among other things, that the trial court 

properly instructed the jury on imperfect self-defense. We affirm.

FACTS

On April 3, 2018, Theopheus Bennett made a 911 

emergency call. He told the dispatcher he was stabbed in the 
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park and “I’m bleeding to death.” He said he got jumped by 

“[m]en, I think.” They had a knife. 

Police Officer David Garza responded and went to the 

“Barkin’ Dog Park” in Lompoc, California. He went to assist 

Bennett who had “multiple stab wounds on his upper back and 

his lower back.” He remained with Bennett until the ambulance 

arrived. Garza testified that Bennett was unarmed. He had no 

weapons, knives, or any “sharp cutting instruments.” 

Bennett died at the hospital. Doctor Manny Montez, a 

county forensic pathologist, testified that the cause of death was 

“multiple stab wounds.” The depth of the stab wounds to 

Bennett’s back ranged from “four to six inches deep.” 

Ricardo Perea, an “acquaintance” of Whalen’s, testified 

Whalen told him about an incident at the dog park. Whalen said 

a man woke him going through his belongings. “So [Whalen]

grabbed his knife [and] stabbed him. The guy ran away. 

[Whalen] ran after him and continued stabbing him.” Whalen 

said he “killed somebody.” Perea told Whalen that “it doesn’t 

look good” when you stab somebody in the back. Whalen said, “I 

know.” Whalen then asked, “something to the effect,” “[W]hat

was I supposed to do, let him go?”

Amanda Bobbitt, a friend of Whalen’s, testified that 

Whalen told her about the incident at the dog park. Whalen said 

he woke up and someone was reaching over him. He stabbed the 

person. That person “ran away.” Whalen said he chased that 

person and ‘kept stabbing him.” He said he “just couldn’t stop.” 

He “snapped.” 

In an initial police interview, Whalen said he did not know 

“anything about” the killing of Bennett at the dog park. In a 
3

second interview, he said he “wasn’t down there that night.” He 

was at a “hotel.” 

In a subsequent police interview, Whalen made a 

confession. He said he had a knife in his hand after Bennett said,

“Don’t fucking move.” He was asked, “Do you know where on his 

body you hit him?” With a gesture Whalen said, “[R]ight here.” 

He then “followed” Bennett and “[stood] over him.” He was 

asked, “And then you stabbed him a few more times?” Whalen 

responded, “Yeah.” After that Whalen said, “I ran off.” 

Bennett was wearing a GPS tracking device as a result of 

having been placed on probation. The police obtained the GPS 

coordinates tracking records showing Bennett’s movements at the 

time of the incident. Those movements were consistent with 

Bennett “running away.” The police conducted a search of the 

park with a search team and metal detectors. No weapons were 

found. A police officer found two blood pools in the park. One 

blood pool was 148 feet from the park’s play structure where 

Whalen had been sleeping. The other was 221 feet from that 

area. 

In the defense case, Whalen testified that he was homeless. 

He often slept in the park and he owned a knife. On April 3, 

2018, he was sleeping in the park’s “play structure” area. He 

woke up and saw Bennett “leaning over” him. Bennett said,

“Don’t fucking move.” Bennett had something in his right hand. 

Whalen testified he was “really scared.” He stabbed Bennett 

with his knife. 

The stab wound caused Bennett to “run away” or “retreat.” 

Whalen testified Bennett “jumped over the side of the rail” near 

the park play structure. 
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Whalen got up and “proceeded down the stairs” near the 

park play structure. When he got to the bottom, he saw Bennett 

holding a knife. Bennett “lunged” for Whalen’s knife and 

“grabbed” it. Whalen “pulled the knife out slicing [Bennett’s] 

hand.” 

Whalen testified the injury to Bennett’s hand caused 

Bennett to step ”back a few steps as [Whalen was] moving 

forward.” Bennett turned “and [Whalen] struck him again . . .

two more times.” After suffering these two wounds, Bennett 

began to “fall.” “[Bennett] stumbled, and then I struck him two 

more times.” Whalen said he did not intend to kill Bennett. He 

just wanted to “make it out of there alive, to survive.” Whalen

did not contact law enforcement because he felt they would not 

believe him. Whalen’s cell phone had an image with the phrase 

“death follows a thief.” This was from a video game application. 

He was not truthful in his first interviews with the police. He did 

not recall telling the police that he stabbed Bennett in his back 

while he was on the ground.

DISCUSSION

The Jury Instruction

Whalen contends the trial court erred in instructing the 

jury on imperfect self-defense. He claims the court failed to 

include an instruction that a defendant must be acquitted of 

murder under the imperfect self-defense doctrine when he has a 

“sincere belief in the necessity of his actions to repel an imminent 

robbery.” (Initial capitalization omitted.) 

The trial court instructed the jury with CALCRIM No. 571.

It provided, in relevant part, “A killing that would otherwise be 

murder is reduced to voluntary manslaughter if the defendant 

killed a person because he acted in imperfect self-defense. [¶] . . .
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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 [¶] 3. 

At least one of those beliefs was unreasonable.” 

CALCRIM No. 571 provided the jury with the correct and 

necessary elements of imperfect self-defense. (People v. 

Manriquez (2005) 37 Cal.4th 547, 581; In re Christian S. (1994) 7 

Cal.4th 768, 773; People v. Vasquez (2006) 136 Cal.App.4th 1176, 

1178.) A defendant must have “an actual belief in the need for 

self-defense against an imminent danger to life or great bodily 

injury.” (People v. Manriquez, supra, 37 Cal.4th at p. 581.) 

“Imperfect self-defense is the actual, but unreasonable, belief in 

the need to resort to self-defense to protect oneself from imminent 

peril.” (Vasquez, at p. 1178.) The instruction properly included 

the need “to defend oneself from imminent peril to life or great 

bodily injury.” (Christian S., at p. 773.)

Whalen’s claim that he had an independent right to an 

imperfect self-defense instruction because he acted “to repel an 

imminent robbery” is incorrect. A robbery, by itself, does not 

show that he was in imminent danger so that he could use deadly 

force. (People v. Morales (2021) 69 Cal.App.5th 978, 991-992.)

In Morales, a defendant made a similar claim for a selfdefense instruction based on a victim’s “attempt to rob him was 

itself a sufficient basis for his requested instruction without 

regard to any danger of great bodily injury or death.” (People v. 

Morales, supra, 69 Cal.App.5th at p. 991.) The court rejected the 

claim. “[W]e are not convinced that a mere robbery, without 

more, will give rise to the right of self-defense with deadly 
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force . . . .” (Id. at p. 992.) “A robbery . . . cannot trigger the right 

to use deadly force in self-defense unless the circumstances of the 

robbery gave rise to a reasonable belief that the victim would 

suffer great bodily injury or death.” (Ibid.) “[T]he touchstone for 

self-defense remains the reasonable belief of the danger of great 

bodily injury or death, not the threat of a robbery in and of itself.”

(Ibid.; italics added.)

This reasoning also applies to imperfect self-defense 

instructions because they also require that the defendant 

“actually believes that he or she is in imminent danger of being

killed or suffering great bodily injury.” (People v. Morales, supra, 

69 Cal.App.5th at p. 995, italics added.) In Morales, the court 

also held, “[I]f a defendant unreasonably believes someone is 

going to punch him in the arm and stabs him to death in 

response, ‘this belief would not support a claim of imperfect selfdefense for the reason that the belief, even if reasonable, would 

not permit the use of deadly force.’ ” (Ibid.)

Whalen notes that the trial court gave the jury a selfdefense instruction that included the danger of robbery. It 

provided, in relevant part, “the defendant acted in lawful selfdefense if: [¶] 1) The defendant reasonably believed that he was 

in imminent danger of being killed or suffering great bodily 

injury or was in imminent danger of being robbed.” (CALCRIM 

No. 505, italics added.) Whalen’s claim that the court should 

have modified the imperfect self-defense instruction by adding 

the same robbery language that was added to the self-defense 

instruction is incorrect and beside the point.

The issue is the validity of the imperfect self-defense 

instruction. The trial court did not have a sua sponte duty to 

modify the instruction in a manner that would be inconsistent 
7

with case law. The imperfect self-defense instruction as given

was proper. (People v. Morales, supra, 69 Cal.App.5th at pp. 991-

992; see also People v. Manriquez, supra, 37 Cal.4th at p. 581.)

The jury was instructed with CALCRIM No. 3474 which 

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 withdraws or no longer appears capable of inflicting 

any injury, then the right to use force ends. Whalen testified he 

initially stabbed Bennett, which caused Bennett to “run away” or 

“retreat.” He said Bennett “jumped over the side of the rail” to 

get away down the stairs. 

Whalen’s claim that he was repelling a robbery when he 

killed Bennett is not applicable because Bennett was not 

committing a robbery at the time he was killed. He was fleeing 

from Whalen. Whalen followed Bennett carrying a knife. When 

Whalen caught up to him, Whalen stabbed Bennett multiple 

times in the back. Whalen’s testimony about the incident was 

refuted by the scientific and crime scene evidence. The GPS 

evidence showed Bennett was running away. The police park 

crime scene investigation showed Bennett was unarmed. The 

blood pool evidence showed Whalen’s testimony about where the 

killing took place was not true. Whalen’s testimony that Bennett 

sustained a hand injury when he allegedly tried to take the knife 

from Whalen is contradicted by the medical evidence. 

Whalen’s admissions to Perea and Bobbitt impeached his 

trial testimony and showed that he was not acting in self-defense.

The phrase on Whalen’s cell phone that “death follows a thief” is 

evidence of Whalen’s motive and state of mind. Whalen admitted

lying to the police which shows his consciousness of guilt. He 

subsequently confessed to police that he followed Bennett, stood 
8

“over him,” and stabbed him “a few more times.” That admission 

coupled with stabbing Bennett in the back undermined Whalen’s 

claim of self-defense and impeached his trial testimony.

Whalen’s trial testimony also includes highly incriminating 

admissions that he attacked Bennett while he was retreating, 

wounded, falling down, and stumbling. Whalen testified that 

while Bennett turned away, “I struck him . . . two more times.”

Bennett began to “fall.” “He stumbled, and then I struck him two 

more times.” Bennett’s multiple back wounds ranged “from four 

to six inches deep.”

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

BALTODANO, J.

CODY, J.
Von N. Deroian, Judge

Superior Court County of Santa Barbara

______________________________

Christopher Muller, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Wyatt E. Bloomfield and William H. Shin, 

Deputy Attorneys General, for Plaintiff and Respondent.