1

Filed 11/10/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Nevada)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JASON CARL SCHULLER,

Defendant and Appellant.

C087191

(Super. Ct. No. F16000111)

APPEAL from a judgment of the Superior Court of Nevada County, Candace S. 

Heidelberger, Judge. Affirmed.

David L. Polsky, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Michael P. Farrell, 

Senior Assistant Attorney General, Daniel B. Bernstein, Supervising Deputy Attorney 

General and Peter H. Smith, Deputy Attorney General, for Plaintiff and Respondent.
2

Defendant, Jason Carl Schuller, shot his long-time friend, W.T., nine times in the 

head and set the body on fire. Defendant testified, claiming self-defense, but his trial 

testimony about what happened leading up to and during the shooting suggested he was 

delusional and hallucinating. Following a plea of not guilty by reason of insanity, a jury 

found defendant guilty of first degree murder in the guilt phase. He was ultimately found 

legally sane and sentenced to an aggregate term of 50 years to life. 

On appeal, defendant contends the trial court erred in refusing to instruct the jury

on voluntary manslaughter based on imperfect self-defense. He maintains substantial 

evidence demonstrates he had an actual, albeit unreasonable, belief in the need for selfdefense that was not entirely delusional. We agree but find the error harmless. 

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Prosecution’s Case

The night of the murder, W.T.’s daughter, who lived in a separate upstairs unit 

with her kids, heard banging sounds like metal hitting metal coming from W.T.’s 

residence. She tried calling W.T. and then heard a very loud noise that shook the house.1 

She then saw defendant’s car speed off. Her father did not answer her phone calls. 

A neighbor testified he heard gunshots coming from W.T.’s residence — a first set 

of multiple gunshots, “six, ten” and a couple minutes later, a second set of three. He 

then heard and saw defendant’s car speeding off. Seeing smoke coming from the house, 

the neighbor went inside and found W.T.’s body. After extinguishing the fire, he called 

911.

Police dispatched to a report of a drunk driver, ultimately saw and pursued 

defendant’s car for an hour, over a span of 38 miles, running red lights and reaching 

1

 A fire chief testified that this noise was consistent with ignitable liquid being lit and 

vapor flashing. 
3

speeds of 100 miles per hour. After strip spikes were deployed to puncture the car’s tires, 

defendant kept driving for a mile, but he eventually stopped. After an approximately 

one- hour-long standoff, defendant surrendered after a SWAT team and an armored 

vehicle were deployed. He was arrested. The semi-automatic handgun used in the 

shooting was found in the car. 

W.T. sustained nine gunshot wounds to the left side of his face and head and postmortem burns.2

 Some of the nine head wounds were “quite closely grouped.” Thirteen 

shell casings were found on the floor in the vicinity of the body.3 A gun case, empty 

magazine, gas can, and large kitchen knife were found on the kitchen table. There was 

blood spatter on the walls and floor, but not on the knife. A cell phone belonging to W.T.

was found under the table. There was a bullet hole in the phone. The neighbor testified 

that when he went inside, he could smell gas, the oven door was open, and “the gas was 

on full,” and the burners were on as well. 

The neighbor also testified that around January or February, W.T. said he did not 

want defendant to come around, but did not say why. At some point after that, defendant 

told the neighbor he was gay and coming out of the closet and he thought his father 

would be mad at him.

4

 The neighbor did not believe W.T. was gay. 

2

 The pathologist testified that five of the head wounds were to the left side of W.T.’s 

face. The bullet trajectories were from left to right, front to back, some slightly 

downward and some slightly upward. There was a tenth wound to the head that was 

probably the result of a ricochet, with a right to left, front to back and downward 

trajectory. There was also a gunshot wound to the back of his left hand that appeared to 

have been caused by a bullet that went through W.T.’s head. 

3

 The gun found in defendant’s car had the capacity of holding 10 rounds plus one in the 

chamber. When it was found, it was loaded, with one round in the chamber and six in the 

magazine. 

4

 In the prosecution rebuttal case, the neighbor’s wife testified that her husband told her 

defendant said he was gay and coming out at some point before W.T.’s murder. 
4

The Defense’s Case

The defense introduced evidence through defendant’s own testimony, the 

testimony of his sister and two police officers who briefly detained him that he was 

experiencing delusions and hallucinations while in Nebraska and travelling back to 

California in the weeks before the murder. These included that he was being shot at and

attacked with Ninja stars, but was protected by “the light.” During his testimony, 

defendant explained that “the light” was a gift from God that protected him from harm 

and, when shared with others, would make them better. He also testified that demons 

were trying to steal the light and misuse it. 

Defendant testified that when he returned to California, he went straight to W.T.’s 

house. Defendant testified that after arriving there, they each drank two or three beers

5

and a couple of shots and took a couple of hits of concentrated THC, while defendant told 

W.T. about his trip. At one point, defendant shared the light with him. Defendant 

testified that W.T. looked surprised and said to people outside the window, “Yes, it is 

him.” 

Defendant testified that he then took a shower and, while showering, heard five 

“subtle” gunshots and saw a misty figure. He subsequently asked W.T. if he had shot at 

him, but W.T. seemed confused and ignored the question. 

Later, W.T. brought out a gun and put it in a case by the kitchen table. It was 

defendant’s gun that he had been storing at W.T.’s house. W.T. asked defendant to take 

it with him when he left, and defendant planned to do so.

W.T. then asked defendant to share the light again. Defendant testified that W.T.

expressed a fondness for children and defendant thought the light would “cleanse” that 

evil out. Normally when defendant would share the light it would return to him. On this 

5

 Law enforcement found empty beer bottles on the kitchen table.
5

occasion, however, “he was able to hold it. I wasn’t able to get it back.” W.T. then 

looked outside, and smiling, said, “ ‘See, I told you I could take it from him.’ ” 

Defendant testified W.T. then got a knife from a kitchen drawer. Defendant tried

to leave through some French doors, but they wouldn’t open. He then ran to the kitchen 

table to put something between him and W.T. Defendant testified that W.T. then 

approached and “went to stab at me,” but “when he was in the air he couldn’t get any 

closer” apparently because there was a large white angel there protecting defendant. 

Defendant grabbed the gun from the table, pointed it at W.T., and said, “ ‘Tell me right 

now. Are you Lucifer?’ ” W.T. nodded yes. Defendant said he put the gun down and 

said sarcastically something like, “ ‘Yeah, right dude. . . ha, ha, You’re not Lucifer.’ ”

Defendant testified, “[a]s soon as I set the gun down he went for the gun and 

raised the knife and tried like that[

6

] and I remember just picking it back up and taking a 

step or two back and pulled the trigger.” Defendant testified he fired just one shot, 

striking W.T. in the head. W.T. fell to the floor and the knife fell out of his hand. 

Defendant testified he was in fear for his life when W.T. came at him with the knife. 

Defendant testified, “I remembered walking, saw him at the side of the table.” He 

asked W.T. why he did that. W.T. pushed himself up and said something to defendant 

like “You f’d up” or “You f’er.” Describing W.T.’s movement defendant said, “It was all 

like one motion like push yourself up, getting to your knees, grabbing something at the 

same time.” (RT 1141) Defendant testified, “I don’t remember if he grabbed the knife 

and somehow it got back on the table but he was like pushing himself up.” At that point, 

defendant jumped back and shot W.T. five more times in the head. 

Defendant testified he sat on a chair, confused about what had just happened. He

then tried to use W.T.’s house phone to call 911, but it was not working. Next, he tried to 

6 The motion W.T. purportedly made was not described for the record. 
6

use W.T.’s cell phone, but was having trouble unlocking it. At the same time, the cell 

phone was ringing, “It just didn’t stop.” 

Defendant testified he heard a gasp and W.T.’s dentures then flew out of his 

mouth. That scared defendant and he “jumped back in the chair and pulled the trigger 

three more times,” but he did not see the bullets hit W.T.’s head. Defendant noticed the 

slide on the gun was back. He testified, “I remember dropping the magazine out, putting

another one in and letting the slide slide forward one more in the chamber.”

Defendant testified he continued to try to use W.T.’s cell phone, but it would not 

stop ringing, so he shot it. He recalled shooting at it three times and hitting it on the third 

shot. 

As he was about to leave, defendant testified he saw W.T.’s body convulsing with 

demons swirling around it. He started to run out the door and noticed a gas can by a 

weedeater. He decided to “kill the demon or Lucifer [and] send it to hell” by setting the 

body on fire. He doused the body with gasoline, lit a cigarette, took a few “drags” from 

the cigarette and then set the body on fire.7

Defendant then drove away, planning to go Monterey, which is where he had 

planned to go after leaving W.T.’s house. He eventually noticed a helicopter and police 

cars chasing him. He testified that when he was surrounded by police, he shared “the 

light” with himself, and voluntarily surrendered since he believed the police could not get 

any closer. 

On cross-examination, defendant testified that when he first pointed the gun at 

W.T. and asked if he was Lucifer, W.T. was holding the knife to his side. Defendant 

testified that he put the gun on the table and he began to walk toward the front door in the 

7

 Defendant denied lighting the stove burners or oven. He said W.T. had them on to 

keep the house warm. After setting the fire, defendant said he tried to turn the burners 

off, but was frantic and panicked and could not figure out how to do that. 
7

living room. He said he “just wanted to leave.” Defendant testified that it was at that 

point that W.T. raised the knife again and then reached for the gun on the table. 

Although he was leaving, defendant testified, he “kind of came back at the same time like 

I knew I couldn’t get out of there without getting stabbed.” He said he was able to get the 

gun because he was closer. At that moment, W.T. lunged toward defendant with the 

knife and defendant shot him. 

Also on cross, when the prosecutor asked if the killing had something “to do with 

some type of gay issue,” defendant responded, “Absolutely not.” He denied it had 

anything to do with W.T. rebuffing his advances. He also denied being gay, and having 

told a neighbor he was gay. When asked if he had initially told police he shot W.T. “out 

of some kind of delusional, crazy self-defense,” defendant acknowledged he had not. He 

also acknowledged he told the police the shooting had something to do with W.T. being 

gay and coming on to him — though he testified that was a lie. During further crossexamination on the next day’s court session, defendant testified that overnight he thought 

about what his thinking might have been about what he had told the police and claimed 

he lied about that because he thought “the gay thing” would have been “more justifiable 

for what happened. . . . I thought it would be justifiable. That is why I told them the gay 

thing.” 

The Prosecution’s Rebuttal

Defendant’s jail calls were monitored, and a detective testified that in his initial 

conversations, defendant appeared lucid and normal. But once it became clear defendant 

was going to pursue a mental health defense, defendant’s conversation changed. From 

then on, defendant’s conversation exhibited “conspiracy theory type language” involving 

the government and law enforcement framing him and “angels and demons [were] 

effecting things in his every day life.” 

A forensic psychologist opined that defendant was “exaggerating or 

feigning psychiatric distress.” This opinion was based on a variety of reports he read 
8

associated with the case, interviews he did with defendant as well as psychological 

testing he administered. The psychologist did not believe defendant was mentally ill, but 

his extensive drug use could have caused hallucinations. He believed defendant setting 

fire to the body and evading police demonstrated knowledge of wrongdoing and an 

understanding of consequences. 

Another forensic psychologist testified that, while defendant claimed to be 

hallucinating, he described the shooting as a response to W.T. attacking him with a knife

while trying to grab the gun, suggesting he acted in self-defense. He told her he took the 

gun with him when he left the house in case he needed it to have a shootout with the 

police or kill himself. In her experience, the hallucination of seeing demons is unusual 

for people with mental health issues and it caused her to be suspicious. She also noted 

that in one of defendant’s jail phone conversations shortly after defendant was booked in 

the jail, he talked about his case, but made no mention of psychiatric symptoms, 

hallucinations, seeing demons or any of the problems defendant described to her during 

interviews. She concluded defendant was malingering and his efforts to destroy the body 

and flee from police demonstrated he knew what he did was wrong. 

Defense Request for an Imperfect Self-Defense Instruction

During the guilt phase, the defense requested an instruction on voluntary 

manslaughter based on imperfect self-defense. The trial court denied the request. While 

noting that actions based solely on delusion cannot form the basis for imperfect selfdefense, the court examined the evidence to determine whether defendant’s delusions

could be separated from his testimony of being attacked by W.T. It concluded that in 

defendant’s case all the “statements and the conduct which defendant attributes to [W.T.] 

are all . . . part of and arise out of defendant’s delusions and hallucinations.” It noted, 

“[T]here was no light being shared . . . There wasn’t a light that [W.T.] held onto and 

wouldn’t give back. [W.T.] is not Lucifer.” 
9

The court added: “In addition, the physical evidence, specifically, where the knife 

was located, the fact that there were no blood spatters on the knife, that’s not supportive 

of the defendant’s statements that [W.T.] actually had a knife. Even though credibility is 

for the jury to determine, based upon the evidence, the fact that he was in a delusion, and

that the physical evidence doesn’t match the self-defense allegation or contention, to me 

it seems like it was pretty delusional. [¶] So, to me — and even if [W.T.] had picked up 

a knife as testified to by the defendant, it doesn’t seem to me that this is a situation where 

the defendant misperceived an objective actual circumstance that required a defensive 

action. It seems more like it’s a situation where his reaction was produced by the mental 

disturbance alone, which is the very thing that the cases talk about as being the sanity 

phase, not for the guilt phase.” The court reasoned that it was not making a credibility 

determination in lieu of the jury, but noted “there has to be some evidence to support the 

self-defense” and there was none in the court’s view. The court further explained: “I 

don’t think that the evidence supports that [W.T.] was holding the knife. That, I think is 

the key. If the evidence had been different, if the knife had been on the ground, perhaps, 

that might have made a difference.” 

Based on that reasoning, the trial court concluded there was no basis to support an 

imperfect self-defense instruction. 

Verdict, Sanity Phase, and Sentencing

The jury found defendant guilty of first degree murder (Pen. Code, § 187, 

subd. (a))8 and found he personally discharged a firearm causing great bodily injury or 

death (§ 12022.53, subd. (d)). 

After the sanity phase, the jury was unable to reach a decision and was

discharged. A second jury later found defendant legally sane at the time of the shooting. 

8

 Undesignated statutory references are to the Penal Code.
10

The trial court thereafter imposed an aggregate term of 50 years to life, 

consisting of 25 years to life for the murder and 25 years to life for the firearm 

enhancement. 

DISCUSSION

Defendant contends the trial court erred in refusing to instruct the jury on the 

lesser included offense of voluntary manslaughter based on a theory of imperfect selfdefense. He argues that despite making many delusional claims at trial, he testified to a 

relatively straightforward claim of self-defense: W.T. attacked with a knife and he shot 

in self-defense. 

We agree defendant was entitled to the instruction, but find the error harmless.

I. Delusions, Hallucinations, and Imperfect Self-Defense 

When there is substantial evidence that the defendant killed in imperfect selfdefense, the trial court must instruct on this theory of voluntary manslaughter. (People v. 

Elmore (2014) 59 Cal.4th 121, 134 (Elmore); People v. Breverman (1998) 19 Cal.4th 

142, 162.) In this context, substantial evidence is “ ‘ “evidence from which a jury 

composed of reasonable [persons] could . . . conclude[]’ ” that the lesser offense, but not 

the greater, was committed.” (Breverman, at p. 162.) “ ‘[S]ubstantial evidence to 

support instructions on a lesser included offense may exist even in the face of 

inconsistencies presented by the defense itself.’ ” (People v. Millbrook (2014) 222 

Cal.App.4th 1122, 1137 (Millbrook).) “In deciding whether there is substantial evidence 

of a lesser offense, courts should not evaluate the credibility of witnesses.” (Breverman,

at p. 162.) That is a task for the jury. (Ibid.) We review the trial court’s refusal to 

instruct on a lesser included offense de novo and, in so doing, consider the evidence in 

the light most favorable to the defendant. (People v. Campbell (2020) 51 Cal.App.5th 

463, 501 (Campbell); People v. Brothers (2015) 236 Cal.App.4th 24, 30 (Brothers);

Millbrook, at p. 1137.) 
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Voluntary manslaughter based on imperfect or unreasonable self-defense is 

available to a defendant who had an actual, but unreasonable, belief in the need for selfdefense. (Elmore, supra 59 Cal.4th at pp. 121, 129.) It mitigates murder to manslaughter 

because malice “ ‘cannot coexist’ ” with an actual, although mistaken, belief in the need 

to defend oneself from the victim’s imminent attack. (Id. at pp. 129-130.)

As our high court in Elmore explained, “unreasonable self-defense involves a 

misperception of objective circumstances, not a reaction produced by mental disturbance 

alone.” (Elmore, supra, 59 Cal.4th at pp. 134-135.) “ ‘[U]nreasonable self-defense ‘is 

based on a defendant’s assertion that he lacked malice . . . 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.’ ” (Id. at p. 136.) And “because unreasonable self-defense 

is ‘a species of mistake of fact [Citation] . . . it cannot be founded on delusion.’ ” (Ibid.) 

Thus, “unreasonable self-defense, as a form of mistake of fact, has no application 

when the defendant’s actions are entirely delusional. A defendant who makes a factual 

mistake misperceives the objective circumstances. A delusional defendant holds a belief 

that is divorced from the circumstances.” (Elmore, supra, 59 Cal.4th at pp. 136-137, 

italics added.)

9 But the Elmore court was careful to note: “[a] defendant who misjudges 

the external circumstances may show that mental disturbance contributed to the mistaken 

9

 The Elmore court explained how the law regards a purely (or entirely) delusional belief 

in self-defense: “[A] belief in the need for self-defense that is purely delusional is a 

paradigmatic example of legal insanity.” (Elmore, supra, 59 Cal.4th at p. 135.) It “is 

quintessentially a claim of insanity under the M’Naghten standard of inability to 

distinguish right from wrong. Its rationale is that mental illness caused the defendant to 

perceive an illusory threat, form an actual belief in the need to kill in self-defense, and act 

on that belief without wrongful intent.” (Id. at p.140.) Thus, where the defense is that 

defendant acted purely on a delusional belief in the need for self-defense, such a claim is 

reserved for the sanity phase, where it may result in complete exoneration from criminal 

liability. (Id. at pp. 145, 147.) However, such a claim “may not be employed to reduce a 

defendant’s degree of guilt.” (Id. at p. 145.) 
12

perception of a threat,” and thus “defendants who mistakenly believed that actual 

circumstances required their defensive act may argue they are guilty only of voluntary 

manslaughter, even if their reaction was distorted by mental illness.” (Id. at p. 146, 

italics added.) 

So, in deciding whether substantial evidence supports an instruction on 

unreasonable self-defense, where must a court draw the line? The Elmore court 

explained: “The line between mere misperception and delusion is drawn at the absence 

of an objective correlate.” (Elmore, supra, 59 Cal.4th at p. 137, italics added.) For 

example, “[a] person who sees a stick and thinks it is a snake is mistaken, but that 

misinterpretation is not delusional. One who sees a snake where there is nothing 

snakelike, however, is deluded.” (Ibid.) Given the Elmore court’s distinction between 

“misperceive[ing] objective circumstances,” and holding a belief that is “divorced from 

the circumstances,” and its snake example, we understand the reference to “an objective 

correlate” to relate to the presence or absence of objective circumstances supporting a 

claim of imperfect self-defense.

So, who may testify about the objective circumstances and what type of proof is 

required? As the court noted in People v. Ocegueda (2016) 247 Cal.App.4th 1393 

(Ocegueda), in a slightly different context, no corroborating evidence is required beyond 

a defendant’s statement or testimony. (Id. at pp.1409-1410 .) It is for the jury to decide 

whether a defendant is credible. (Id. at p. 1409.) Thus, a single witness, including the 

defendant, can provide evidence establishing the objective circumstances necessary to 

support the instruction. (Id. at pp. 1401, 1409.) We apply these principles here.

II. Analysis

We conclude the refusal to instruct on imperfect self-defense here was error. 

While defendant’s testimony included evidence of delusion, his account pertaining to the 

actual shooting was not entirely delusional and thus provided substantial evidence of an 

actual but unreasonable belief in the need for self-defense.
13

This case stands in contrast to Elmore, which exemplified conduct “produced by 

mental disturbance alone” and a belief that was “divorced from the circumstances.”

(Elmore, supra, 59 Cal.4th at pp. 134, 137.) There, the defendant — who by all accounts 

was mentally ill — attacked a middle-aged woman, a stranger who was merely out to go 

shopping. (Id. at p. 130.) While she was sitting at a bus stop, defendant approached her 

and stabbed her to death with a sharpened paint brush handle. (Ibid.) A witness did not 

see the victim do anything to defendant before he attacked her. (Ibid.) At trial, defendant

testified, that “ ‘somebody was saying something violent to me.’ ” (Id. at p. 131.) Asked 

who, defendant said, “ ‘some person out there,’ ” but could not say whether the person 

was a man or woman. (Ibid.) When asked why he stabbed the victim, he testified, 

“ ‘Person said something and did something to me, I didn’t just go do it to be doing it.’ ” 

(Ibid.) Like the court’s snake example, nobody was threatening defendant — the 

threatening person was the product of defendant’s delusional state. Admitting there was 

no factual basis for defendant to believe he had to defend himself, defense counsel

nevertheless asked for an instruction on unreasonable self-defense, “based solely on [the] 

defendant’s delusional mental state.” (Id. at pp. 131-132, italics added.) Our high court 

rejected that theory, holding that the doctrine of unreasonable self-defense is not 

available when the belief in the need to defend oneself is entirely delusional. (Id. at 

p. 130.) “A purely delusional belief in the need to act in self-defense may be raised as a 

defense, but that defense is insanity.” (Ibid., see fn. 9, ante.)

Here, the parties and the trial court struggled with the lack of published authority 

covering a situation such as presented here. No published case has addressed a court’s 

refusal to give an imperfect self-defense instruction where a defendant’s story is that a 

real person attacked him, but there are delusional components to the defendant’s 

description of what happened. 

Ocegueda, supra, 247 Cal.App.4th 1393, however, provides some guidance. 

Applying Elmore, the Ocegueda court held that the trial court erred by precluding the 
14

jury from considering evidence of defendant’s mental disabilities in deciding whether he 

harbored the state of mind required for imperfect self-defense. (Id. at p. 1396.) In 

Ocegueda, the defendant told police the victim had been “ ‘mad dogging’ ” him and 

making derogatory comments. (Id. at p. 1401.) At one point, the victim appeared to 

reach under his coat and pull out “something metal.” Thinking the victim was pulling out 

a gun, defendant shot the victim “ ‘for [his] own protection.’ ” (Id. at pp. 1397, 1401.)

The defendant had been diagnosed with a developmental disability, and an expert 

testified that people with “processing disorders [like defendant] might have problems 

with interpreting what they see or hear, or it might take them longer to arrive at a 

conclusion about what they see or hear.” (Id. at p. 1402.) The trial court instructed on 

imperfect self-defense, but did not instruct the jury that it could consider evidence of the 

defendant’s mental disabilities in deciding whether he had the state of mind required for 

imperfect self-defense. (Id. at pp. 1404-1405) 

Relying on Elmore, the Attorney General in Ocegueda argued that even if the 

defendant had a genuine belief in the need to defend himself, the belief must have been 

purely delusional because no other witness saw the victim move as defendant described

and no weapon was found. (Ocegueda, supra, 247 Cal.App.4th at p. 1409.) To this, the 

Ocegueda court wrote: “We do not read Elmore as precluding imperfect self-defense in 

any case where mental disabilities affect the defendant’s beliefs or perceptions. The key 

distinction identified in Elmore is the ‘absence of an objective correlate.’ ” (Ibid.) The 

court continued: “Based on defendant’s statements, the jury reasonably could have 

inferred that [the victim] actually made some threatening motion or pulled out a metallic 

object, such as a cell phone, from his waistband. Whether defendant’s statements were 

sufficiently credible or his beliefs purely delusional were questions of fact for the jury to 

decide. Elmore does not establish a heightened evidentiary standard requiring 

corroborating evidence independent of defendant’s statements to show his beliefs were 

not purely delusional.” (Id. at pp. 1409-1410, italics added.)
15

Here, like Ocegueda’s uncorroborated claim that he thought the victim was pulling 

out a gun, defendant testified that W.T. came at him with a knife, while reaching for the 

gun on the table, prompting him to shoot in self-defense. While there were delusional 

components to defendant’s story (the “light” being taken from him, and whether W.T.

was Satan), his claim was not entirely delusional like in Elmore or the Elmore court’s 

snake example. Defendant testified that the person he shot was W.T. and that he did so 

because W.T. came at him with a knife. Elmore contemplates that imperfect self-defense 

is available here: “defendants who mistakenly believed that actual circumstances 

required their defensive act may argue they are guilty only of voluntary manslaughter, 

even if their reaction was distorted by mental illness.” (Elmore, supra, 59 Cal.4th at 

p. 146, italics added.)

Indeed, we think it important that although defendant questioned whether W.T. 

was Lucifer just before the shooting, he dismissed the idea. He did not testify that 

Lucifer was trying to kill him or that when he pulled the trigger, he thought he was 

shooting Lucifer. Defendant testified it was W.T. he shot, not because he had taken “the 

light,” but rather because W.T. came at him with a knife. Considering this evidence in

the light most favorable to the defendant, we must conclude that despite whatever 

delusion his testimony suggests he was acting under, he was not entirely delusional.10

10 This distinguishes People v. McGehee (2016) 246 Cal.App.4th 1190, a case the trial 

court relied upon. In McGehee, another panel of this court addressed the question of 

whether a defendant who had been delusional was entitled to an instruction on 

involuntary manslaughter. There, a mentally ill defendant stabbed his mother to death 

and sought an involuntary manslaughter instruction based on the theory that he thought 

she was a demon and not a human being. (Id. at pp. 1194, 1208.) Acknowledging that 

“instructions on involuntary manslaughter are required where there is substantial 

evidence that may come in the form of evidence of the defendant’s mental illness, raising 

a question as to whether or not that defendant actually formed the intent to kill,” the court 

concluded that there was no serious dispute that defendant intended to kill when he 

inflicted 10 stab wounds in an attack the medical examiner described as “overkill.” (Id. 

at p. 1208.) The court then observed that the defendant was not claiming he lacked an 
16

And further, a jury could have inferred from defendant’s testimony he had an actual 

belief in the need to defend himself, but that belief was unreasonable given he had a gun

and W.T. — on the other side of the table — had only a knife. Or the jury could have 

reasonably determined that after firing the initial shot, defendant did not need to shoot 

W.T. multiple times in the head and thus he reacted unreasonably by doing so when W.T. 

tried to get up from the floor after having dropped the knife, especially in light of 

defendant’s inability to say whether W.T. had the knife in his hand at that time. 

Thus, defendant’s own testimony, even though uncorroborated and not otherwise 

credible, supported an instruction on actual but unreasonable belief in the need for selfdefense. As the Ocegueda court noted, “a single witness, even if not inherently credible, 

may provide sufficient evidence to establish a fact” supporting the instruction and 

“Elmore does not establish a heightened evidentiary standard requiring corroborating 

evidence independent of [the] defendant’s statements to show his beliefs were not purely 

intent to kill and went on to write: “Instead, defendant argues: ‘If [he] believed, due to a 

hallucination or delusion, that he was being tormented and attacked by a demon, as he 

had hallucinated in the past, the killing would be without express or implied malice, 

because he did not believe that he was acting against a human life.’ This argument is 

foreclosed by the reasoning of Elmore, supra, 59 Cal.4th 121.” (Ibid.) Under Elmore, 

the McGehee court concluded such a claim could only be addressed in a sanity phase 

after a plea of not guilty by reason of insanity. (Id. at pp. 1209-1211.) Acknowledging 

that Elmore presented a different question which concerned voluntary manslaughter 

instructions grounded on a claim of imperfect self-defense, the McGehee court stated in 

dicta: “Defendant does not argue he was entitled to voluntary manslaughter instructions 

because substantial evidence supported the view he hallucinated an attack by a demon, 

and therefore actually, although unreasonably, believed in the need to use deadly force in 

self-defense. Such an argument would be foreclosed by the holding in Elmore.” (Id. at

p. 1210.) We need not consider whether Elmore actually would foreclose imperfect selfdefense in any particular case where a defendant believes he is being attacked by a 

demon. Each case would require consideration of its own circumstances. As for the 

instant case, looking at the evidence in a light most favorable to defendant, we conclude 

the evidence established that when defendant shot W.T., he believed it was W.T. who 

was attacking him and he intended to kill W.T. based on his belief self-defensive actions 

were necessary to avoid being stabbed.
17

delusional.” (Ocegueda, supra, 247 Cal.App.4th at pp. 1409-1410.)

And even if such corroboration was required, it is present here. Beyond the 

circumstance that defendant knew it was W.T. he was shooting, there was the objective 

circumstance corroboration that a large knife was found on the kitchen table. 

Additionally, a gun case was on the table, which corroborated defendant’s testimony that

that was where the gun had been located just before he grabbed it. 

Of course, the jury was free to reject defendant’s self-defense testimony as 

unsupported or unreliable. (Ocegueda, supra, 247 Cal.App.4th at p. 1409.) That the 

knife was found on the table, not the floor, and had no blood spatter on it were facts the 

jury could consider along with defendant’s story. But the trial court erred in relying on 

those circumstances to conclude defendant was purely delusional.11 “In determining 

whether the evidence is sufficient to warrant a jury instruction, the trial court does not 

determine the credibility of the defense evidence” (People v. Salas (2006) 37 Cal.4th 967, 

982), and a court is not permitted to concern itself with inconsistencies in the evidence 

(Millbrook, supra, 222 Cal.App.4th at p. 1137), rather the court must “consider the 

evidence in the light most favorable to the defendant.” (Campbell, supra, 51 Cal.App.5th 

at p. 501; Brothers, supra, 236 Cal.App.4th at p. 30; Millbrook, at p. 1137.) 

Therefore, we conclude the trial court erred in refusing to instruct on voluntary 

manslaughter based on imperfect self-defense.

11 We understand the trial court to have reasoned this inconsistency between defendant’s 

testimony and the physical evidence established that defendant was entirely delusional. 

But defendant testified about other facts that demonstrated he was in touch with reality. 

For example, after shooting W.T., he noted that the slide on his semi-automatic handgun 

was back, indicating that the gun was empty, so he dropped the empty magazine and 

reloaded with a magazine that had additional ammunition in it. Also, defendant realized 

the phone was ringing, because it was, in fact, ringing — Defendant’s daughter was 

calling. Moreover, in his testimony, defendant allowed for the possibility that the knife 

was in W.T.’s hand when he pushed himself up and it wound up on the table, although he 

was unable to say for sure where the knife was at that time.
18

III. Harmless Error 

Defendant argues the error was prejudicial because there was a reasonable chance 

the jury would have convicted him of voluntary manslaughter had it been instructed on 

imperfect self-defense. We disagree.

Failure to instruct on a lesser included offense is analyzed under the harmless error 

test in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Gonzalez (2018) 5 

Cal.5th 186, 195-196 (Gonzalez); Breverman, supra, 19 Cal.4th at p. 149.)12 “ ‘[U]nder 

Watson, a defendant must show it is reasonably probable a more favorable result would 

have been obtained absent the error.’ [Citation.]” (People v. Beltran (2013) 56 Cal.4th 

935, 955.) “[T]he Watson test for harmless error ‘focuses not on what a reasonable jury 

could do, but what such a jury is likely to have done in the absence of the error under 

consideration. In making that evaluation, an appellate court may consider, among other 

things, whether the evidence supporting the existing judgment is so relatively strong, and 

the evidence supporting a different outcome is so comparatively weak, that there is no 

reasonable probability the error of which the defendant complains affected the result.’ ” 

(Beltran, at p. 956.)

Here, a more favorable result was not reasonably probable given the 

overwhelming evidence that defendant was not acting in any form of self-defense. 

Defendant’s account of the killing radically changed leading up to trial. Shortly after he 

12 Defendant maintains the standard from Chapman v. California (1967) 386 U.S. 18 [17 

L.Ed.2d 705], should apply because the error violated his constitutional rights. He argues 

that California has only held that failure to instruct on lesser included offenses is to be 

reviewed under Watson in non-capital cases, and he is not entitled to fewer rights because 

he is not facing capital punishment. We disagree. (Gonzalez, supra, 5 Cal.5th 186, 

195,198 [“The failure to instruct on lesser included offenses supported by substantial 

evidence was state law error”; “Although we have long recognized the duty to instruct on 

lesser included offenses under California law, neither we nor the United States Supreme 

Court recognizes a similar duty to instruct on lesser included offenses under federal 

constitutional law—at least in noncapital cases”].)
19

was apprehended, he implied to law enforcement that W.T. was gay and coming on to 

him — defendant said nothing of killing in self-defense. But during trial, defendant told 

the jury he lied to the police because he thought “the gay thing” would have been “more 

justifiable for what happened,” an excuse a reasonable jury would likely find 

unconvincing and evincing a willingness to create a story to justify his actions.

Two forensic psychologists testified that defendant appeared to be malingering. 

One testified that psychological testing designed to determine whether a person is 

malingering or exaggerating psychiatric symptoms supported this conclusion. The other 

testified that hallucination of demons is unusual for people with mental health issues. 

She also noted that in a recorded jail conversation shortly after defendant’s arrest, 

defendant talked about his case without mentioning hallucinations or demons or any of

the problems he described during interviews with her. Similarly, a detective testified that 

defendant seemed lucid in his earlier recorded jail phone conversations, only to later 

exhibit delusions about government conspiracies, angels, and demons after it “became 

clear” he would pursue a mental health defense. The testimony of the psychologists 

undercut the credibility of the claim he acted in self-defense, as well as the credibility of 

his claim he was suffering from delusions or hallucinating.

Defendant’s attempt to destroy the body (and perhaps the house) and his flight 

also undercut his claim of self-defense. Indeed, there was an inherent contradiction in 

defendant’s testimony that he tried to call the police after the shooting, only to be stymied 

by the ringing phone — yet, when police found him, rather than seek their help, he led

them on a 38-mile pursuit, surrendering only after his car was rendered inoperable and an

hour-long standoff had ensued. 

Indeed, a reasonable jury likely concluded defendant had the opportunity to get 

help while he was at or near the house — if he really wanted it. Defendant testified he 

wanted to call 911 but had trouble unlocking W.T.’s phone to do so. But when someone 

called (the daughter said she called numerous times after hearing noises), instead of 
20

answering the phone and asking the caller to get help, defendant shot the phone to make 

it stop ringing. Shortly thereafter, he fled without summoning help from anyone nearby, 

leaving the house to burn down. 

Other aspects of defendant’s testimony undercut his credibility. Defendant 

testified he set the gun on the table, even though W.T. still had a knife in his hand. A 

reasonable jury would likely have found defendant’s purported unilateral disarmament by 

setting the gun down to lack credibility. He testified on direct examination that “as soon 

as” he set the gun down on the table, W.T. went for it and raised the knife. Yet, on crossexamination the following day, he testified that after he put the gun on the table, he 

started to walk away toward the front door because “he just wanted to leave.” Aside 

from disproving his earlier testimony indicating W.T. immediately reached for the gun 

after he set it down, a jury could have reasonably found the claim that he started to leave 

without the gun to lack credibility because the purported plan had been for him to take 

the gun with him whenever he left; putting the gun on the table and then leaving did not 

square with that plan. This testimony further undercut his claim that shot W.T. in a selfdefense scenario.

Finally, although there was substantial evidence for purposes of supporting an 

imperfect self-defense instruction, the physical evidence did not entirely align with his 

story. Again, the knife was found on the table — not the floor. And unlike the 

surrounding area, the knife had no blood on it. Further, that W.T. was shot nine times on 

the left side of his face and head, with some wounds “quite closely grouped,” suggested a 

personal motive, rather than panicked self-defense.

Again, our focus in a Watson review is “not on what a reasonable jury could do, 

but what such a jury is likely to have done in the absence of the error.” (Beltran, supra,

56 Cal.4th at p. 956.) Given the evidence, we conclude there was no reasonable chance 

of a more favorable outcome had the jury received the requested instruction.
21

DISPOSITION

The judgment is affirmed.

 /s/

MURRAY, J.

We concur:

 /s/

RAYE, P. J.

 /s/

RENNER, J.