1

Filed 10/9/20 P. v. Breiner CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Modoc)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JACK LEE BREINER,

Defendant and Appellant.

C089247

(Super. Ct. No. F16398)

A jury found defendant Jack Lee Breiner guilty of premeditated murder of a peace 

officer engaged in the performance of his duties by means of discharging a firearm from 

a motor vehicle. The jury also found defendant guilty of attempted murder and of

possession of a firearm by a prohibited person. As to the murder and attempted murder 

convictions, the jury found multiple firearm allegations true. Following the sanity phase 

of trial, the jury found defendant sane when he committed the three offenses. Following 

the penalty phase of trial, the jury sentenced defendant to life in prison without the 

possibility of parole. 
2

On appeal, defendant contends the trial court erred by failing to hold a competency 

hearing. He further contends the trial court made two instructional errors that 

cumulatively prejudiced him. Defendant does not challenge any legal rulings made

during or the verdicts resulting from the sanity and penalty phases of trial. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

A

Defendant’s Background

Defendant, according to his father, was always “a little off the rocker” and “not 

quite right in the head.” His mother always had concerns about defendant’s mental 

health because of a severe head injury he sustained when he was four years old that 

resulted in a month of hospitalization. As a child, defendant’s speech was delayed and he 

took special education classes; however, defendant ultimately became an average student. 

Defendant began heavily drinking at the age of 14 and continued for decades. In 1989, 

when defendant was in his early 20’s, he, his parents, and his two brothers moved to 

Modoc County. Defendant’s mother noticed defendant’s mental health started to decline 

around this time. 

After moving to Modoc County and over the course of nearly three decades, 

defendant was arrested several times for low-level and alcohol-related offenses by the 

Modoc County Sheriff’s Department. Because of these frequent arrests, defendant spent 

time in the Modoc County Jail. He claimed that, while incarcerated there, he was 

assaulted numerous times by Modoc County Sheriff’s deputies and inmates at the 

deputies’ direction or through their complicity. Defendant’s family testified that 

defendant was often released from Modoc County Jail injured or would complain about 

physical and sexual assaults having occurred while incarcerated there. The deputy 

defendant most often complained of was Modoc County Sheriff’s deputy Dan Nessling. 

Deputy Nessling previously oversaw the Modoc County Jail and was indicted by a 

grand jury for misdemeanor excessive force and had been the subject of numerous 
3

complaints and legal settlements regarding excessive force. “It [wa]s . . . stipulated that 

Deputy Nessling has screamed at, physically assaulted, battered, injured and terrified 

numerous arrestees, inmates and citizens without suffering any adverse disciplinary 

consequences from [Modoc County] Sheriff Mike Poindexter or prior sheriffs Bruce Mix 

or Mark Gentry.” While Deputy Nessling no longer worked at the Modoc County Jail as 

a sergeant at the time of defendant’s trial, he was still a deputy working patrol. 

In August 2012, while defendant was incarcerated in the Modoc County Jail, he

was severely injured when he was assaulted by another inmate who punched him in the 

face. The single punch resulted in an orbital blowout fracture, a detached retina, and a 

ruptured globe. While defendant was given immediate emergency treatment by the 

Modoc County Jail staff, the staff did not transfer defendant to a hospital for treatment for 

four days. A scan of defendant’s brain performed around this time showed defendant had 

no brain defects. 

After defendant was released from the Modoc County Jail in 2014, he lived in the 

bunkhouse on his parents’ ranch. Over the course of the next two years, defendant

started acting differently; he was reclusive and rarely left the house. He talked 

incessantly about various conspiracy theories supported by the radio program InfoWars 

and its host Alex Jones. This included the belief the government was medicating people 

with chemicals released by airplanes that flew overhead and that the Russian and Chinese

governments were actively planning an invasion of the west coast. Defendant also 

believed aliens were watching him and were “gonna get us all.” Defendant expressed

fear in law enforcement and going to jail, specifically the Modoc County Jail where he 

thought he would be killed. He told his father and younger brother he would kill any

deputy who attempted to arrest him. Defendant was increasingly paranoid that he was 

being followed or that the world was ending. 

In the six months leading to October 19, 2016, defendant became increasingly 

agitated and prone to paranoid outbursts. He talked about foreign invasions and domestic 
4

government authorities coming to get him. He said he saw the devil and horsemen of the 

apocalypse. Defendant’s mother called Sheriff Poindexter to ask for help with defendant 

and shared that defendant had threatened to kill her and the family. Defendant’s mother 

was told the Modoc County Sheriff’s Department could not do anything to help her until 

defendant became violent. 

In the days before October 19, 2016, defendant became even worse. He said an

ankle monitor he was required to wear was put on him by the Chinese and Russian 

governments. He also accused his family of being part of a Russian conspiracy to 

monitor him and threatened to kill them. Defendant’s mother sought help from Modoc 

County Behavioral Health. She and defendant’s older brother also complained to 

defendant’s parole officer about his behavior but were told there was nothing the parole 

officer could do to help them. 

B

The Shooting

On the morning of October 19, 2016, defendant’s father and older brother went to 

defendant’s bunkhouse to collect empty water jugs to fill with filtered water for the 

family’s use. When they got to the bunkhouse, they saw defendant had filled the water 

jugs with well water. Defendant said he had filled the jugs in order to prepare for an

attack or for the end of the world. Defendant’s father began emptying the water jugs 

when defendant entered and threw a “tantrum.” Defendant hit his father and his father 

fell to the ground, where defendant then got on top of him. Defendant’s older brother

grabbed defendant and threw him against the wall before threatening to call 911. 

Defendant’s older brother then walked out of the bunkhouse to make the call. 

Modoc County Sheriff’s deputy Julie Winkle took defendant’s older brother’s 911 

call at 9:30 a.m. He told her he needed a deputy to come to the ranch because defendant 

was pushing his father around. Modoc County Sheriff’s deputy Jack Hopkins overheard 

the call and responded. Several minutes after Deputy Hopkins responded to the call, 
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Sheriff Poindexter followed him in his own patrol vehicle. Sheriff Poindexter attempted 

to get in contact with Deputy Hopkins to tell him they should handle the call together, but 

was unable to reach him. 

After making the 911 call, defendant’s older brother walked over to his parents’

house. When he looked back toward the bunkhouse, he saw defendant walking out with 

a rifle. As defendant walked, he yelled to his older brother that the older brother had just 

“caused [defendant’s] death.” Defendant pointed the gun at his older brother, causing his 

older brother to run to the back of the house. Defendant then got in his truck and drove 

slowly around the house and the bunkhouse before slowly driving down the long road 

leaving the ranch. During this time, defendant’s older brother called 911 again to inform 

the dispatcher defendant was armed with a rifle. At 9:38 a.m., the dispatcher told Deputy 

Hopkins defendant was armed and Deputy Hopkins asked whether defendant’s direction 

of travel was known, which it was not. 

When defendant was about 500 feet from the house, Deputy Hopkins approached

him in his patrol vehicle from the opposite direction. Defendant fired at Deputy Hopkins 

with his rifle from his truck. The bullet traveled through the windshield of Deputy 

Hopkins patrol vehicle and struck Deputy Hopkins’s “right forehead and right eye nearly 

obliterating his right forehead and right eye and inflicting a lethal brain injury.” 

Defendant got out of his truck and walked over to Deputy Hopkins’s patrol vehicle and 

turned it off. He then got back in his truck, cut off his ankle monitor, and drove away

until his truck got stuck in the mud further down the road.

At approximately 9:52 a.m., defendant saw Sheriff Poindexter approaching the 

ranch on a side road. Defendant got out of his truck and shot at Sheriff Poindexter’s 

patrol vehicle. Sheriff Poindexter stopped his vehicle and radioed for help. Sheriff 

Poindexter was approximately 50 to 60 yards away. Defendant shot at Sheriff Poindexter

two to three more times. At least one of those shots struck the patrol vehicle. Sheriff 
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Poindexter continued to drive an additional 100 yards away from defendant, where he 

safely retrieved his department-issued rifle to return fire. 

When Sheriff Poindexter returned fire, he hit defendant in the knees and defendant 

stopped shooting at him. Deputies then arrived at Sheriff Poindexter’s location and 

defendant was taken into custody without incident and given medical attention. Upon a 

search of defendant’s truck, deputies discovered a change of clothes, boxes of bullets, a 

knife, a sleeping bag, cans of food, toilet paper, first aid items, a saw, a toothbrush, and a 

water jug. Defendant’s medications were also found in the truck. 

C

Defendant’s Statements

On the way to the hospital defendant said he “was tired of them fucking with 

[him]. That’s why [he] shot [Deputy Hopkins].” At the hospital, defendant was in a lot 

of pain and made several statements that his hands hurt even though he had no injury to 

his hands. Defendant also told his nurse with tears in his eyes that he “didn’t mean to 

shoot [Deputy Hopkins]. It was an accident.” Defendant further told a deputy guarding 

him that the deputy should “[j]ust take me to Modoc so I can plead guilty and go to jail.” 

Defendant also told the deputy, “I am such a dumb ass. I should have stayed where I was 

and shot both their asses.” 

Several days after the shooting, defendant spoke with Butte County Sheriff’s

sergeant Matt Calkins. During that interview, defendant said he was scared when he saw 

Deputy Hopkins approaching him and thought he was going to be arrested. He shot at 

Deputy Hopkins from inside his truck to scare the deputy away. When he shot at Deputy 

Hopkins, defendant knew it was a bad idea and the wrong thing to do. Defendant at 

times contradicted himself or made scattered or irrelevant statements. For example, when 

asked why deputies were called to the ranch, defendant said it was to check on the cattle 

or the Islamic “foreigners” that “just fucking show up. And they were just fucking out 

there, they sleep in the shop or something.” Defendant also said he could not remember 
7

shooting at Deputy Hopkins and that he blacked out. He further claimed Sheriff 

Poindexter shot at him first and defendant shot back to scare the sheriff away. 

A few days after that interview, defendant was interviewed again. He repeatedly 

told Sergeant Calkin that he would prefer to speak about the matter somewhere else and 

was uncomfortable. During that interview he claimed the United Nations raped his wife 

“a long time ago.” Defendant’s thoughts were scattered and he appeared at times unable 

to focus on the questions asked of him. 

D

Defendant’s Mental Health

Dr. Melissa Piasecki, a forensic psychiatrist, examined defendant. As part of her 

exam, she reviewed defendant’s medical records from the Modoc Mental Health Center. 

Those records revealed defendant was diagnosed with schizoaffective disorder in 2014. 

Schizoaffective disorder is a blend of schizophrenia, which is a psychotic disorder, and a 

mood symptom, in this case both irritability and depression. The records further showed 

defendant had a nearly three-decade history of anxiety and depression. Following 

defendant’s diagnosis, he was prescribed antipsychotic drugs to target his psychotic 

symptoms like delusions and possibly hallucinations. Defendant also received 

medications to help with his anxiety, as well as antidepressants. 

A psychotic disorder, like schizophrenia, is marked by a break with reality. These 

breaks with reality take two forms -- delusions, which are fixed false beliefs, and 

hallucinations, which are false sensory perceptions. Defendant’s medical records and 

statements from his family indicated defendant’s delusions escalated in intensity in 2016 

and he responded with increased amounts of agitation. It also appears he began 

hallucinating around this time. Hallucinations present a more pervasive problem than 

delusions and show a worsening of symptoms. Based on her exam, Dr. Piasecki believed 

defendant suffered from schizoaffective disorder or some form of schizophrenia. 
8

After Dr. Piasecki examined defendant and formed this opinion, she received 

defendant’s brain scan and reevaluated her diagnosis. The scan showed defendant had 

suffered a small stroke in the left temporal region of his brain, cutting off blood flow to 

that area. A stroke in that area of the brain would not affect a person’s motor behavior, 

instead it would affect a person’s memory and is associated with psychosis and other 

psychiatric problems. Based on Dr. Piasecki’s review of all the records, she believed 

defendant had a psychotic disorder made worse by his medical condition, i.e., the stroke 

that cut off blood flow to his temporal lobe. Based on this diagnosis, Dr. Piasecki was of 

the opinion that when defendant acted on October 19, 2016, he made decisions based on 

facts that appeared true to him. 

DISCUSSION

I

The Trial Court Did Not Err By Failing To Hold A Competency Hearing

Defendant contends the trial court erred by failing to hold a competency hearing 

after his counsel declared a doubt as to defendant’s competency and the trial court 

suspended proceedings and appointed two experts to evaluate defendant. The People 

counter that the trial court effectively fulfilled its obligation to hold a hearing and defense 

counsel impliedly submitted on the experts’ evaluations. We do not agree with either 

party. 

A trial court has a nondiscretionary obligation to suspend proceedings and hold a 

competency trial only when the trial court has declared a doubt as to a defendant’s 

competency or defense counsel has supported his or her declaration of a doubt with 

substantial evidence. (People v. Sattiewhite (2014) 59 Cal.4th 446, 465.) “Otherwise, we 

give great deference to the trial court’s decision not to hold a competency trial.” (Ibid.) 

Here, the trial court did not declare a doubt as to defendant’s competence or find 

substantial evidence supported defense counsel’s declaration. Thus, the trial court did not 

err by failing to hold a competency hearing. 
9

A

Background

On January 8, 2018, defense counsel filed an affidavit and motion to suspend 

proceedings until determination of defendant’s mental competence. Defense counsel 

believed defendant to be incompetent to stand trial because he observed defendant “to be 

delusional and experienc[ing] substantial memory deficits” during his visits. Defendant 

“is incapable of recalling the names, locations, and time frames for schools he has 

attended, doctors who treated him, hospitals where he was treated, me[n]tal health 

facilities where he was treated, and substance abuse programs he has attended.” A month 

before, defendant “refused an interview with a psychiatrist retained by the defense.” 

Based on conversations with defendant’s family, defense counsel believed defendant had

a “history of head trauma, substance abuse, and mental illness and that [he] has been 

treated for a mental condition at one or more mental health facilities.” 

On January 25, 2018, the trial court suspended proceedings pursuant to Penal 

Code1section 1368 and ordered defendant be evaluated. In doing so, it stated it had 

“received and reviewed an affidavit by [defense counsel]. The affidavit is, of course, 

under oath and [counsel] has indicated to the Court that he is declaring a doubt pursuant 

to 1368 as to [defendant]. And the Court has reviewed and considered that and the 

Court’s tentative, of course, would be to suspend proceedings based on [defense 

counsel’s] observations, [and] statements that are contained in his affidavit.” After 

hearing no objections from the parties, the trial court stated it would “suspend 

proceedings pursuant to 1368 and the Court will appoint the required experts in this 

matter.” 

1 Further section references are to the Penal Code, unless otherwise indicated. 
10

Two experts subsequently evaluated defendant and filed reports concluding 

defendant “was competent to assist counsel and understands the proceedings in this 

matter.” 

At a hearing on April 16, 2018, the trial court indicated it did not find substantial 

evidence of defendant’s incompetence and was not going to hold a competency hearing. 

Defense counsel indicated he was not prepared to submit on the reports because an 

evaluation by “our doctor” revealed additional information. “[S]o at this point, defense is 

not prepared to stipulate or submit on the reports with regard to competency. I think it 

would behoove us to set a trial. We may get additional information from that doctor that 

would change that position, but I think it would be imprudent to go ahead and submit on 

those reports at this state.” 

The trial court denied defense counsel’s request to set a hearing. It reasoned the 

standard to set a hearing was substantial evidence of defendant’s incompetence. The trial 

court based its finding of no substantial evidence of defendant’s incompetence on the fact

defense counsel’s declaration was not supported by the two psychological evaluations,

both of which contained conclusions defendant was competent. “[S]o without substantial 

evidence, I wouldn’t be setting it for hearing on the issue of competence, so I don’t know 

why you haven’t filed anything at this juncture if you felt that there was something 

sufficient to sway the Court.” 

The parties then moved on to determining a trial date for the underlying charges. 

As part of that discussion, defense counsel said, “[w]e were talking about setting the trial 

in August. If I had received [the doctor’s] report . . . which I had not received, then there 

may be substantial evidence to have a trial on competency, but what I’d rather do, Judge, 

so we can have the schedule and keep moving forward, is if we go ahead and submit on 

the 1368 reports right now instead of having to re-raise competency, if I get that 

[doctor’s] report, I think it’s more efficient to reserve the competency issue for a future 

date and that way we can keep a trial date, we can set a motion date.” The trial court 
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responded, “[w]e can keep a trial date. At this point, the Court’s making the finding that 

there is not substantial evidence of incompetency to set a hearing and then it would 

require that the defense file something in the future if [it] want[s] to, so proceedings are 

restored.” 

B

The Trial Court Did Not Declare A Doubt Or Find Substantial Evidence Of Defendant’s

Incompetence, Thus It Was Not Required To Hold A Competency Hearing

“The due process clause of the federal Constitution’s Fourteenth Amendment 

prohibits trying a criminal defendant who is mentally incompetent.” (People v. Ary

(2011) 51 Cal.4th 510, 517.) “When a trial court is presented with evidence that raises a 

reasonable doubt about a defendant’s mental competence to stand trial, federal due 

process principles require that trial proceedings be suspended and a hearing be held to 

determine the defendant’s competence. [Citations.] Only upon a determination that the 

defendant is mentally competent may the matter proceed to trial. [Citation.] [¶] 

California law reflects those constitutional requirements.” (Ibid.) Accordingly, “ ‘ “state 

law require[s] a trial judge to suspend trial proceedings and conduct a competency 

hearing whenever the court is presented with substantial evidence of incompetence, that 

is, evidence that raises a reasonable or bona fide doubt concerning the defendant’s 

competence to stand trial.” ’ ” (People v. Sattiewhite, supra, 59 Cal.4th at p. 464.) 

In California, this law is codified in section 1368. Subdivision (a) of that section 

provides: “If, during the pendency of an action and prior to judgment . . . a doubt arises 

in the mind of the judge as to the mental competence of the defendant, he or she shall 

state that doubt in the record and inquire of the attorney for the defendant whether, in the 

opinion of the attorney, the defendant is mentally competent. . . . At the request of the 

defendant or his or her counsel or upon its own motion, the court shall recess the 

proceedings for as long as may be reasonably necessary to permit counsel to confer with 
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the defendant and to form an opinion as to the mental competence of the defendant at that 

point in time.” 

Subdivision (b) of section 1368 then provides: “If counsel informs the court that 

he or she believes the defendant is or may be mentally incompetent, the court shall order 

that the question of the defendant’s mental competence is to be determined in a hearing 

which is held pursuant to Sections 1368.1 and 1369. If counsel informs the court that he 

or she believes the defendant is mentally competent, the court may nevertheless order a 

hearing. Any hearing shall be held in superior court.” “[W]hen an order for a hearing 

into the present mental competence of the defendant has been issued, all proceedings in 

the criminal prosecution shall be suspended until the question of the present mental 

competence of the defendant has been determined.” (§ 1368, subd. (c).) 

Defendant argues subdivisions (a) and (b) of section 1368 are “alternative 

procedural mechanisms by which a reasonable doubt may arise as to a defendant’s trial 

competence.” Thus, according to defendant, if either his counsel or the trial court 

declares a doubt, then criminal proceedings cannot be reinstated absent a hearing 

pursuant to section 1369 to determine a defendant’s competence. We disagree with 

defendant’s interpretation of section 1368. 

Section 1368, subdivisions (a) and (b) are not alternative procedural mechanisms 

by which to achieve a competency hearing under section 1369. Section 1368, 

subdivision (a) lays out the obligations of a trial judge in the event a doubt regarding 

defendant’s competency arises in the judge’s mind. Part of that obligation is to inquire 

defense counsel’s opinion on the matter. Section 1368, subdivision (b) provides the 

procedure for the court to use depending on counsel’s opinion. Together, subdivisions 

(a) and (b) of section 1368 provide the procedure when the trial court entertains a doubt 

regarding a defendant’s competence. While defense counsel can alert the trial court to 

the issue of defendant’s competence, the court is not required to entertain a doubt unless 
13

counsel’s opinion is supported by substantial evidence. (People v. Sattiewhite, supra, 59 

Cal.4th at p. 465.)

Case law supports this interpretation. In Sattiewhite, our Supreme Court reviewed 

the principles applicable to determining whether a competency hearing is required. Our 

Supreme Court observed “ ‘[c]ounsel’s assertion of a belief in a client’s incompetence is 

entitled to some weight,’ ” it “ ‘does not, in the absence of substantial evidence to that 

effect, require the court to hold a competency hearing.’ ” (People v. Sattiewhite, supra, 

59 Cal.4th at p. 465.) Rather, “defense counsel must present expert opinion from a 

qualified and informed mental health expert, stating under oath and with particularity that 

the defendant is incompetent, or counsel must make some other substantial showing of 

incompetence that supplements and supports counsel’s own opinion. Only then does the 

trial court have a nondiscretionary obligation to suspend proceedings and hold a 

competency trial. [Citation.] Otherwise, we give great deference to the trial court’s 

decision not to hold a competency trial.” (Ibid.) 

Similarly in Ary, our Supreme Court stated that “[s]ection 1368, in subdivision (a), 

requires a trial court to suspend criminal proceedings at any time ‘prior to judgment’ if 

the court reasonably doubts ‘the mental competence of the defendant.’ A defendant can 

create reasonable doubt through substantial evidence of mental incompetence, or the trial 

court can raise the issue on its own.” (People v. Ary, supra, 51 Cal.4th at p. 517; People 

v. Lewis (2008) 43 Cal.4th 415, 524, rejected on other grounds by People v. Black (2014) 

58 Cal.4th 912, 919.)

2

With this understanding of the relevant statutory and case law, subdivision (b) of 

section 1368 cannot be read as an alternative procedural mechanism to subdivision (a). 

2 Both Ary and Sattiewhite interpreted a prior version of section 1368. (See Stats. 

1998, ch. 932, § 40.) The statute’s subsequent amendment did not change section 1368 

in any relevant regard. (See § 1368.)
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Instead, the two must be read together and stand for the proposition that once the trial 

court has declared a doubt or defendant’s counsel has presented substantial evidence of 

defendant’s incompetence to justify a doubt in the trial court’s mind, defendant is entitled 

to a competency hearing pursuant to section 1369. 

Defendant argues the trial court effectively declared a doubt or found substantial 

evidence supported counsel’s declaration when it suspended criminal proceedings under 

section 1368 and ordered defendant be evaluated by two experts, both required 

components of a competency hearing under section 1369. Because these preliminary 

findings were made, defendant argues, the court was required to complete the 

competency hearing process. We disagree with defendant’s underlying premise that the 

trial court declared a doubt or found substantial evidence supporting counsel’s 

declaration. 

Notably, the trial court never said it declared a doubt or found substantial evidence 

supported counsel’s declaration that defendant was incompetent. It also did not mention 

its own observations of defendant or whether it agreed or disagreed with defense 

counsel’s assessment. Nor did the trial court order a competency hearing, as it was 

required to do if it believed there was a doubt as to defendant’s competence. The record 

indicates defense counsel communicated his doubt regarding defendant’s competence to 

the court, and the court believed it was required to suspend criminal proceedings and 

appoint experts based on that communication. This was a mistake. (See §§ 1368, 1369.) 

This misconception, however, did not trigger the court’s obligation to hold a competency 

hearing, contrary to defendant’s contention. Defendant does not argue the court lacked 

discretion to suspend criminal proceedings or appoint experts absent the court’s belief or 

substantial evidence of defendant’s incompetence. While section 1368 entitles a 

defendant to these procedures if the court believes the defendant incompetent or finds 

substantial evidence supports counsel’s declaration, nothing in the section precludes the 

court from following these procedures before determining for itself whether there is a 
15

doubt as to a defendant’s competence. That appears to be what happened here. Indeed, 

at the subsequent hearing on defendant’s competence, the trial court was prepared to 

address whether substantial evidence of defendant’s incompetence had been discovered. 

Moreover, the trial court’s appointment of experts does not signal it entertained a

doubt as to defendant’s competence or believed substantial evidence supported defense 

counsel’s declaration. As our Supreme Court indicated, experts are often the tool to 

achieving the standard entitling a defendant to a hearing. (People v. Sattiewhite, supra, 

59 Cal.4th at p. 465.) And while the trial court suspended criminal proceedings, it is not 

the suspension of criminal proceedings that entitles a defendant to a competency hearing. 

It is the trial court’s doubt or substantial evidence supporting counsel’s declaration and 

“[o]nly then does the trial court have a nondiscretionary obligation to suspend 

proceedings and hold a competency trial. [Citation.] Otherwise, we give great deference 

to the trial court’s decision not to hold a competency trial.” (People v. Sattiewhite, supra, 

59 Cal.4th at p. 465.) Because the trial court did not declare its own doubt or find 

substantial evidence supported defense counsel’s doubt, defendant was not entitled to a 

competency hearing. Accordingly, defendant’s procedural due process rights were not 

violated, and the trial court did not err.3 

II

There Was No Instructional Error

Defendant contends the court erred in two respects as it pertains to the imperfect 

self-defense instruction. First, he argues the court erred by instructing and then 

permitting the prosecutor to argue that, because defendant was the aggressor against his 

father, he could not rely on imperfect self-defense. Second, defendant argues the court 

3 Defendant does not argue his substantive due process rights were violated, only 

his procedural due process rights. Thus, we need not address whether his counsel’s 

declaration provided substantial evidence of his incompetence. 
16

erred by instructing the jury defendant could not rely on imperfect self-defense if it 

believed he acted under a delusion, without also defining the meaning of delusion. We 

disagree.

A

Background

Defendant requested the jury be instructed on imperfect self-defense. The court 

indicated it did not see sufficient provocation to justify the instruction. Defendant agreed 

in the context of a self-defense theory; however, he argued imperfect self-defense 

required only a subjective belief of provocation. The prosecution agreed with defendant, 

but requested a pinpoint instruction informing the jury that a “person who kills or 

attempts to kill while acting under a delusion cannot avail himself of imperfect selfdefense.” Defendant conceded this was an accurate statement of the law. The court 

agreed to give the prosecution’s requested pinpoint instruction. 

The prosecution later requested an additional pinpoint instruction regarding 

imperfect self-defense. According to the prosecution’s theory, defendant could not rely 

on imperfect self-defense because he was the aggressor against his father. The theory 

continues that because Deputy Hopkins and Sheriff Poindexter were responding to 

defendant’s aggression, defendant cannot rely on their response to show provocation

under any circumstances. The court agreed to instruct the jury pursuant to this theory and 

allow the parties to argue the issue to the jury. Defendant did not object. 

The jury was instructed on imperfect self-defense as follows: “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. [¶] . . . The difference between 

complete self-defense and imperfect self-defense depends on whether the defendant’s 

belief and the need to use deadly force was reasonable.

“The defendant acted in imperfect self-defense if: One, the defendant actually

believed that he was in imminent danger of being killed or suffering great bodily injury. 
17

And two, the defendant actually believed that the immediate use of deadly force was 

necessary to defend against the danger; but three, at least one of those beliefs was an 

unreasonable belief. 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 belief, 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.

“Imperfect self-defense does not apply when the defendant, through his own 

wrongful conduct, has created circumstances that justify his adversary’s use of force. [¶] 

If you find that [Deputy] Hopkins threatened or harmed the defendant or others in the 

past, you may consider that information in evaluating the defendant’s beliefs. If you find 

that the defendant knew that [Deputy] Hopkins had threatened or harmed others in the 

past, you may consider [that fact].” 

“A person who kills or attempts to kill while acting under a delusion cannot avail 

himself of imperfect self-defense. . . . [¶] The People have the burden of proving beyond 

a reasonable doubt that the defendant was not acting in imperfect self-defense. If [t]he 

People have not met this burden, you must find the defendant not guilty of murder.” 

B

Legal Authority

“ ‘ “The rules governing a trial court’s obligation to give jury instructions without 

request by either party are well established. ‘Even in the absence of a request, a trial 

court must instruct on general principles of law that are . . . necessary to the jury’s 

understanding of the case.’ [Citations.] That obligation comes into play when a statutory 

term ‘does not have a plain, unambiguous meaning,’ has a ‘particular and restricted 

meaning’ [citation], or has a technical meaning peculiar to the law or an area of law 

[citation].” [Citation.] “A word or phrase having a technical, legal meaning requiring 
18

clarification by the court is one that has a definition that differs from its nonlegal 

meaning.” ’ [Citation.] ‘We consider the challenged instruction in the context of the 

instructions and record as a whole to ascertain whether there is a reasonable likelihood 

the jury impermissibly applied the instruction.’ ” (People v. Garcia (2020) 46 

Cal.App.5th 123, 154-155.) We independently review the correctness and adequacy of 

the trial court’s instructions, examining whether the court “ ‘fully and fairly instructed on 

the applicable law.’ ” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) 

Although a trial court has a duty to adequately instruct on the law, “it has no duty 

to give clarifying or amplifying instructions absent a request.” (People v. Hernandez

(2010) 183 Cal.App.4th 1327, 1331; see People v. Sanders (1995) 11 Cal.4th 475, 533-

534.) Failure to request a clarifying or amplifying instruction results in forfeiture of the 

issue on appeal. (People v. Richardson (2008) 43 Cal.4th 959, 1022-1023.) 

“[D]efendant is not entitled to remain mute at trial and scream foul on appeal for the 

court’s failure to expand, modify, and refine standardized jury instructions.” (People v. 

Daya (1994) 29 Cal.App.4th 697, 714.)

C

The Court Adequately Instructed On An Aggressor’s 

Ability To Rely On Imperfect Self-Defense

Defendant contends it was error for the court to instruct the jury that “[i]mperfect 

self-defense does not apply when the defendant, through his own wrongful conduct, has 

created circumstances that justify his adversary’s use of force.” Specifically, he argues

“[t]his grossly oversimplified and misleading instruction told the jury that [defendant’s] 

‘wrongful conduct’ in assaulting his father deprived [defendant] of the right to [rely] on 

imperfect self-defense, no matter what [defendant] had subjectively believed or -- for that 

matter -- no matter what amount of hypothetical force Deputy Hopkins might have used 

against [defendant].” Notably, defendant does not argue this is an inaccurate statement of 

the law. Indeed, he argues only that it is an oversimplification of the law, which coupled 
19

with the prosecutor’s argument defendant “could not as a matter of law [rely] on 

imperfect self-defense because he assaulted his father,” became a legally invalid theory 

of guilt. 

We agree with defendant that a person is precluded from relying on imperfect selfdefense if he or she “ ‘created circumstances’ under which the ‘attack’ as mistakenly 

perceived by the defendant had been ‘legally justified.’ ” In other words, a defendant 

may be able to rely on an imperfect self-defense theory if the jury believed that, after 

committing a simple assault against a civilian victim, a defendant believed a deputy was 

going to imminently murder him or her when coming to the civilian victim’s aid. (See 

People v. Vasquez (2006) 136 Cal.App.4th 1176, 1179-1180 [“the defense is available 

when the victim’s use of force against the defendant is unlawful, even when the 

defendant set in motion the chain of events that led the victim to attack the defendant”].) 

The instructions as given, however, said this. 

The jury was instructed that “[i]mperfect self-defense does not apply when the 

defendant, through his own wrongful conduct, has created circumstances that justify his 

adversary’s use of force.” (Italics added.) A mere assault does not justify an adversary’s 

use of deadly force. Indeed, as part of the self-defense instruction, the jury was told a 

justified use of force is the “amount of force that a reasonable person would believe is 

necessary in the same situation.” Read together, the jury was told imperfect self-defense 

was not available when defendant created the circumstances in which his adversary was 

perceived to use an “amount of force that a reasonable person would believe is necessary 

in the same situation.” Conversely, if the adversary was perceived to use an amount of 

force a reasonable person would believe is unnecessary in the same situation, then

defendant could rely on imperfect self-defense. Accordingly, the trial court adequately

instructed on the law. We assume the jury read, understood, and followed these 

instructions. (People v. Lucas (2014) 60 Cal.4th 153, 321.) Moreover, the jury was 

instructed it had to follow the law as it was explained in the instructions and that the 
20

instructional language controlled over counsel’s argument. Thus, while the prosecution

implied to the jury defendant was precluded from relying on imperfect self-defense under 

any circumstances, the jury was required to reject the argument to the extent it conflicted 

with the instructions before it.

4

 

To the extent defendant argues the court should have included the definition of 

justified use of force with the imperfect self-defense instruction, that argument is 

forfeited. The trial court adequately instructed on the law, thus any alteration to the 

instructions could have been addressed with an amplifying or clarifying instruction. 

Because defendant did not request one here, his appellate argument the court erred by 

instructing the way it did is forfeited. 

D

The Court Adequately Instructed On The Meaning Of A Delusion

Defendant contends the court erred by failing to define a delusion when it 

instructed the jury pursuant to People v. Elmore (2014) 59 Cal.4th 121, that “[a] person 

who kills or attempts to kill while acting under a delusion cannot avail himself of 

imperfect self-defense.” According to defendant, Elmore defined a delusion for the 

purposes of this legal proposition as “ ‘entirely delusional beliefs,’ ‘purely delusional 

beliefs,’ and ‘psychotic delusions’ without ‘an objective correlate.’ ” He argues the 

court’s failure to instruct the jury on this definition resulted in the jury applying the 

wrong legal standard, especially given some of defendant’s fears were based on the 

realistic circumstances of his history with the Modoc County Sheriff’s Department. 

The problem with defendant’s argument is that the only definition of a delusion

provided to the jury, which was presented through defendant’s expert during testimony, 

was a fixed false belief marked by a break with reality. This nonlegal definition of a 

4 Defendant does not challenge the prosecutor’s argument on other grounds or the 

court’s overruling of trial counsel’s objections to those arguments. 
21

delusion is the same as our Supreme Court’s definition in Elmore. (See People v. 

Elmore, supra, 59 Cal.4th at pp. 136-137 [“unreasonable self-defense, as a form of 

mistake of fact, has no application when the defendant’s actions are entirely 

delusional. . . . The line between mere misperception and delusion is drawn at the 

absence of an objective correlate].) Both require false beliefs removed from reality or 

objectivity. Given the only definition of a delusion supplied to the jury was the definition 

announced in Elmore, the trial court adequately instructed the jury when it referred to a 

delusion, without clarification, as prohibiting reliance on imperfect self-defense. Thus, 

any clarification or amplification of the definition of a delusion needed to be requested. 

Failure to do so resulted in forfeiture of the argument. 

III

There Was No Cumulative Error

Defendant argues cumulative error. “Under the ‘cumulative error’ doctrine, errors 

that are individually harmless may nevertheless have a cumulative effect that is 

prejudicial.” (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) Because we concluded no 

error occurred, there was no error to cumulate. 

DISPOSITION

The judgment is affirmed. 

/s/ 

Robie, J.

We concur:

/s/ 

Hull, Acting P. J.

/s/ 

Renner, J.