Filed 5/5/23 P. v. Lee CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIAM BLOWHEART LEE,

Defendant and Appellant.

F083261

(Super. Ct. No. BF181306A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. David R. Zulfa, 

Judge.

Candace Hale, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and 

Ross K. Naughton, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOooAppellant William Blowheart Lee fired five shots through the glass entry door of a 

marijuana dispensary, hitting and killing Jerry Lee Tibbs, Jr., a security guard sitting 
2.

inside the shop. A jury convicted Lee of second-degree murder (Pen. Code,1 §§ 187, 

subd. (a), 189, subd. (b); count 1),2shooting at an occupied building (§ 246; count 2), 

felon in possession of a firearm (§ 29800, subd. (a)(1); count 3), and felon in possession 

of ammunition (§ 30305, subd. (a)(1); count 4). As to counts 1 and 2, the jury found Lee 

personally used a firearm (§ 12022.53, subd. (d)). In a bifurcated bench trial, the court 

found Lee had two prior serious felony convictions (§ 667, subd. (a)), and two prior 

strikes under the Three Strikes Law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).

3

On the base-term murder conviction, Lee was sentenced to an aggregate 85 years 

to life, comprising an indeterminate term of 50 years to life, a consecutive 25 years to life

for the gun-use enhancement, and a consecutive 10-year determinate term for the two 

prior serious felony convictions.

On the subordinate counts, for firing into an occupied building Lee was sentenced 

to an aggregate 42 years to life, consisting of an upper term of seven years, plus 25 years 

to life for the gun-use enhancement, plus the 10-year determinate sentence for the serious 

felony priors. For being a felon in possession of a gun and ammunition, the court 

imposed upper-term sentences of three years for each, which were doubled to six years 

for a prior strike. The sentences imposed on all three subordinate counts were stayed 

pursuant to section 654. 

Lee appeals, claiming:

(1) The trial court prejudicially erred by refusing to instruct the jury on justifiable 

homicide based on a theory of perfect self-defense. 

1 All undesignated statutory references are to the Penal Code.

2 The jury acquitted Lee of deliberate and premeditated first-degree murder and 

instead convicted him of the lesser included offense of second-degree murder. 

3 The serious felony priors and the strikes were based on two criminal threats 

convictions (§ 422) from 2010 and 2019. They are not contested on appeal.
3.

(2) The court also erred by refusing to modify its imperfect self-defense 

instructions so as to include a defense pinpoint instruction using language taken from

perfect self-defense “that someone who has been threatened in the past is justified in 

acting more quickly or taking greater self-defense measures.” 

(3) Remand for resentencing is required because of retroactive legislative changes 

made to sections 654, 1170, and 1385 after Lee’s original sentence was imposed in 2021.

The People respond that there was no prejudicial instructional error. They 

concede that remand for resentencing is necessary because of changes made to 

section 1170 but contend we need not address the changes made to sections 654 or 1385

because Lee “has already attained the [remand] remedy he seeks....” 

We find no instructional error. However, we agree with Lee that the matter must 

be remanded for resentencing in light of all the recent changes made to the sentencing 

laws. The judgment is therefore affirmed in part, reversed in part, and remanded for 

further proceedings.

FACTS

Because the basic facts of the offenses themselves are not in dispute — only their 

meaning as they pertain to self-defense — we need not lay them out in great detail. We

instead concentrate on the facts specifically relevant to the instructional issues Lee has 

raised. Because Lee does not challenge the sufficiency of the evidence to support his 

convictions, under established appellate standards we recite the facts in the light most 

favorable to the judgment. (People v. Curl (2009) 46 Cal.4th 339, 342, fn. 3 (Curl).) We 

include this reminder because Lee’s rendering of the factsfocuses almost entirely on the 

evidence provided by his testimony and his self-serving post-arrest statements made to 

the police, to the exclusion of the other evidence. 
4.

At about 9:40 p.m. on the night of June 3, 2020,4 Lee was standing outside a 

Bakersfield marijuana dispensary when he claimed he heard someone call out something 

like, “Hey.” He was not certain, but he suspected it had been Jerry Lee Tibbs, Jr. (Tibbs), 

a security guard at the shop and someone with whom Lee was familiar. Lee took out the

handgun he was carrying and fired five times through the glass doorway of the dispensary

where Tibbs was sitting, killing him. As a twice-convicted felon, Lee was prohibited 

from having a gun or ammunition. 

Those were the charged crimes, but it is their back story that is the focus of our 

discussion. 

When these events occurred, Lee was a 33-year-old former gang member who had 

turned informant and prosecution witness. About six years before the current incident, in 

a case involving Lee’s old gang (the Country Boy Crips) and their primary gang rival (the 

East Side Crips), Lee had testified against members of his own gang. Obviously, such a 

“snitch” forever thereafter runs a serious risk of threats, assaults, and even being killed. 

Police relocated Lee to Visalia for his protection, but he quickly violated the terms of the 

witness protection agreement, the police stopped supporting him, and he returned to 

Bakersfield. Lee said that despite being labeled a “rat,” in the intervening years he “was 

able to move around a little bit just between the cracks.” 

Because of various unrelated domestic difficulties, Lee was basically homeless 

and was living in a car parked in his sister’s carport a block away from the marijuana 

shop. The dispensary was an East Side Crips hangout ostensibly owned by McKinley 

Womack, an East Side Crip. A police detective opined that Tibbs was also an East Side 

Crip affiliate. 

On May 19, two weeks before the killing, Lee was drinking beer in the alley 

behind the dispensary when Tibbs came outside and told him to leave. Lee thought he 

4 Subsequent references to dates are to dates in 2020 unless otherwise stated.
5.

“wasn’t causing any problems,” so he refused. Tibbs went inside but soon came back out 

and again told Lee to leave. Lee said he did not have to leave, and that Tibbs could not 

tell him where to go or what he had to do. Lee said Tibbs took a few swings at him but 

missed. He claimed Tibbs then asked him if he wanted some “weed” or money, but Lee 

replied that he did not need anything. Meanwhile, Womack had come up from behind, 

knocked Lee down with a punch to the jaw, and then followed by brandishing a 

derringer.

5

Lee gave two inconsistent accounts of what happened next. When originally 

interviewed by police, Lee said that he felt like “standin’ up for [him]self,” so he started 

“talkin’ mess” and “talkin’ smack, talkin’, talkin’, talkin’ smack.” “And it escalated. So 

I started talkin’ smack, talkin’ smack, talkin’ smack.” About “6-10” other men then 

came out of the shop and beat him up: “They just jumped me because I started talkin’ 

smack.” Notably, Lee admitted nothing gang-related was ever said or implied; he 

believed they were just trying to get him to leave the area. 

At trial, however, Lee said that after being knocked down by Womack, he went 

home and noticed his cell phone was missing. He came back to the dispensary to see if 

they had his phone, but when he went up to the front door to ask, someone peppersprayed him in the face, “six to seven” people came out of the shop, backed him down 

the alley, like a “deer with six hyenas backing it into a corner,” and then beat him up.

However, none of them was armed. 

Lee made a cell-phone video of himself afterwards, showing and describing his 

injuries from the beating. They were minor, however, and he did not seek medical 

attention. In this video, he said, “I have no choice ... but what they did to me is not 

5 We presume it was a derringer. Lee called it a “deuce-deuce Dillinger” but 

clarified it was “like those little small double barrel guns” and agreed that the “deucedeuce” may mean the barrels’ .22 caliber bore. 
6.

acceptable. So, I have to defend myself because now, I’m in fear that they gonna come 

back and do something more to me knowing that I’m on the streets. ... To be continued.” 

After the May 19 event, Lee said he had no more “personal interactions” with 

Tibbs until he killed him on June 3. He admitted he had never again been “confronted by 

[Tibbs] either verbally or physically.” 

On May 20, Lee went to the liquor store located next door to the dispensary.6 A 

group of six or seven “gentlemen” came “straight into the store,” “[a]ggressively telling” 

Lee that he had to leave, that he was not supposed to be there, and that it was not his 

neighborhood. Tibbs was not in this group either. 

Someone in the group used a phone to record the incident, a recording that 

eventually went up on Facebook. It showed Lee “standing inside a liquor store with a 

startled look on his face with his hands up while you could hear several other people ...

making ... derogatory comments towards [him].” Lee told them that he did not have to 

leave, but later said he was afraid — so afraid in fact that he urinated on himself. 

Later, when Lee saw the video on Facebook, he realized there were gang 

undertones to the situation as he read the comments. There was “a back and forth 

between people affiliated with the East Side Crips, as well as the Country Boy Crips....” 

There also were derogatory comments about Lee “urinating on himself” and some 

threats; one even identified Lee as an “ex-gang member” and a “rat.”

Although many of the comments merely mocked or made fun of Lee, some 

threatened him with future assaults, such as one promising to assault Lee and make him

6 The dispensary and the liquor store were adjacent businesses in the same 

commercial building situated perpendicular to the street. The liquor store was on the 

north end of the building, on the street, and the dispensary was on the south end, on an

alley. Lee’s sister’s carport was one block directly north of the liquor store; in a photo 

taken from the liquor store parking lot, the apartment building where Lee’s carport was 

located was visible. Thus, coming from the carport, Lee could go directly to the liquor 

store without needing to pass the dispensary.
7.

“shit” himself the next time. None was a death threat, however; they were only threats to 

“beat his ass.” All told, the post had about 147 comments and was shared 39 times. As

Lee read the comments, he said “the mental anguish just built up and built up, especially 

after all those years of the strife that I had to go through[.]”

Both to police and later in his trial testimony, Lee made a variety of sometimes 

inconsistent statements regarding his fears, plans, motivations, and his mental distress

after the Facebook post had circulated.

Because of being assaulted in the alley and intimidated in the liquor store, Lee said 

he was in fear of the East Side Crips and felt his life was in danger. He told police it was 

these fears that triggered his reaction to hearing “Hey” just before he opened fire on 

June 3. He explained that when he first saw Tibbs standing near the door to the 

dispensary and then turn and go back inside that: “[W]hen [Tibbs] went in [the 

dispensary] he was like, ‘Hey.’ And I thought they was gonna come out and they was 

gonna try and get me.” He was “thinkin’ [Tibbs was] callin’ the same guy who had a 

[derringer] was gonna come out.” “I don’t know who [Tibbs] was speaking to in the 

store. But ... I’m thinkin’ that they gonna come back out and do what they did to me 

again.” As he subsequently put it, the “Hey” was “[t]he reason why I got ready.” Of 

course, he did more than merely “get ready” and, in actuality, no one ever came out.

Lee also gave different stories to explain why, despite his claims of mortal fear, he 

had armed himself with a gun — stolen from another of his sisters sometime between 

May 21 and May 23 — and went back to the dispensary on the night of June 3. To the 

jury, he said that he just “got up and ... went for a walk” after “sitting there dwelling on 

all the things that had been going on in [his] life.”

More revealing, during his interviews with police detectives he related two 

additional, and quite different,stories. Lee initially insisted he went back because his 

sister kept asking him to go to the liquor store for her, despite his having earlier been 

confronted and threatened inside the store, and even against the advice of his estranged 
8.

wife. However, surveillance video taken from inside the liquor store at 7:26 p.m. that 

evening — more than two hours before the 9:40 p.m. shooting — showed Lee making a 

purchase, and wearing the same clothing he was wearing when he later returned and shot 

Tibbs.

7

 

Lee eventually admitted he really went back to the area for more proactive 

reasons: “The things that I did, the way I went about it, was wrong. Because ... it was 

more like I became the aggressor afterwards because of my mental anguish.... I became 

the aggressor after the fact because I was in fear of my life. So, I had to do what I had to 

do in order to be sure, you know, that this guy wasn’t going to come and kill me. And 

the next guy wasn’t going to come and kill me. And the next guy wasn’t going to come 

and kill me.” 

One interviewing detective said to Lee: “[T]hat’s what we’re getting at. When ...

you walked to the [dispensary] that night, and you saw [Tibbs] at the door and you started 

shooting him, he wasn’t assaulting you.” Lee admitted: “He didn’t assault me ... [h]e 

didn’t pull a gun on me or anything like that.... You’re right. I became the aggressor at 

that point. I became the aggressor out of fear and wanting to make sure th[ese] guys

didn’t have a chance to kill me first. . . . I made that decision to be sure that I wouldn’t 

die first. ... I just felt like I had to take care of business before these guys killed me.”8 

Another detective asked Lee, “Why walk in front of a business where people hate 

you?” Lee replied, “You make a good point there, a very strong point.” Lee 

7 As noted above, Lee could have gone directly to the liquor store from his sister’s 

carport without having to go near the dispensary. Instead, he circled around the other 

side of the building to the alley south of the liquor store and then approached the 

dispensary half of the building from the opposite direction. 

8 About Tibbs, Lee said: “I’[d] never even seen that man before [May 19]. ... I 

d[id]n’t know his name. I d[id]n’t know anything about him. The only thing I heard was 

this guy has a lot of beef with a lot of different people. And he’s from the East Side.” 

Nonetheless, at the time of the May 19 incident in the alley, Lee admitted he did not

know that Tibbs was an East Side Crip. 
9.

acknowledged that when he saw Tibbs outside the doorway of the shop, he did not see 

any gun on him. When asked, “Then what made you start shooting?” Lee would only 

say, “No comment.”9

While they watched the June 3 surveillance video taken by a camera outside the 

liquor store,

10 Detective Rob Robles and Lee had the following conversation:

“[Robles]: And just seein’ how you walk up. And you kind of creep up on [a 

parked] vehicle using it as cover. And you’re kind of – you’re watching the 

[dispensary]. You’re creepin’ along.

“[Lee]: It looks like retaliation to you right?

“[Robles]: It does.

“[Lee]: Yeah I know. I understand that completely.

9 Police found five spent 9mm shell casings and a few bullet fragments about 10 to 

15 feet outside the front door of the dispensary. All five casings came from the same 

gun. The glass front door had three “bullet strikes” through the glass and there were 

several “bullet strikes” found on an interior wall. When police arrived, Tibbs was sitting 

in a chair just inside the doorway, with a single fatal bullet wound to his right chest, the 

entry path of which was in a downward trajectory. 

In a subsequent search of the carport, police found a single expended 9mm shell 

casing and various items of men’s clothing both in the car and a storage area. When 

arrested on June 5, Lee directed officers to his backpack where they found a loaded 9mm 

semi-automatic handgun with a single round remaining in the magazine. 

10 Surveillance cameras inside the dispensary were apparently only for show 

because they were not attached to recording devices. However, one of the liquor store’s 

exterior cameras showed “a male walking from the direction of the south alley walking 

by the front door [of the dispensary] and several loud sounds consistent with sounds of 

gunshots as [the male] is pointing an object in the direction of the front door; and then 

fleeing ultimately north along th[e] liquor store and then northeast from there.” (Italics 

added.) As noted, Lee’s carport was one block northeast of the shooting location; a 

detective measured the distance from the carport to the dispensary as 556 feet. 

Another southwest-pointing surveillance camera that was located at the back of a 

post office just east of the liquor store building showed the same individual coming down 

the alley south of the dispensary and then turning north into the parking lot where the 

door to the dispensary was located.
10.

“[Robles]: And then so you get – I don’t know if it’s an employee or a customer 

or somebody else walks out of the door and starts walking ... towards the alley.

“[Lee]: You mean the lady ... that came out?

“[Robles]: Right.

“[Lee]: Yeah that’s probably when [Tibbs] said somethin’ to me.

“[Robles]: [A]nd is there a reason why you didn’t shoot her?

“[Lee]: For what? She didn’t...

“[Robles]: Exactly. She did nothin’ wrong to you right?

“[Lee]: It’s a innocent lady.

“[Robles]: Ri– Exactly. But you see [Tibbs] ... And that’s when you shoot him. 

So it’s one thing if you’re just beboppin’ along and you’re just walkin’ from the 

alley to the [liquor] store. And he’s yellin’ out ‘Hey.’ And then you see the

stampede of East Siders comin’ out at you. That’s a completely different 

animal....

“[Lee]: I get exactly where you comin’ from.

“[Robles]: And I’m seein’ you creepin’ up [in the surveillance video]. And 

you’re not creepin’ up to wait until [Tibbs] turns around so you can make your 

way to the [liquor] store so no one will see you go in and go buy [what Lee’s sister 

purportedly wanted] right?

“[Lee]: Mm-hm.” 

Lee conceded it “[s]ounds ... like it’s premeditated but ... I had to do what I had 

to do because I was going to die. Point blank, period.... These guys was going to kill 

me.”

When asked if that was why he “pulled out a gun and started shooting,” Lee 

simply said, “No comment.” The detective said, “So I’m tryin’ to figure out what these 

people are doin’ too in that immediate second [before the shooting] that ... caused 

you ... to have fear.” Lee replied, “When [Tibbs] walked [back] into the store and he 
11.

said ‘Hey.’ I don’t know who he was speaking to in the store. But it – under my 

impression I’m thinkin’ that they gonna come back out and do what they did to me 

again.”11 

When asked, “Did you go there planning to do this?” Lee cryptically replied, “No, 

not necessarily.” As to why he chose that particular night, Lee stated, “I just got tired of 

being stuck in ... boxed in and being scared. So I forced myself to build up enough 

courage to basically say, ‘I’m not going to let you just do me like this and keep bullying 

me and threatening me and all the things you do.’ So I reacted the way I reacted because 

I – I was – I’m scared and I was tired of being cooped up in the corner....”12 Presumably

speaking about Tibbs, Lee said:

“Because it’s like – it speaks for itself. You beat me up. You come back the next 

day with some other guy or actually some other guys come back the next day, 

humiliate me and then try to bully me even more. And then when I’m up there

again you sayin’ [H]ey. It’s like what do you expect me to think when you 

already jumped me. And then these guys are already threatenin’ me and then 

puttin’ it on the internet to humiliate me with threats.” 

11 However, no one came out. Given that the bullet holes were located in the 

closed glass door and in interior walls, the downward trajectory of the fatal shot, and 

where Tibbs was found when police arrived, the reasonable inference is that Tibbs was 

seated inside the shop when he was shot and no one else had come in or out of the door.

12 During all of his police interviews, Lee repeatedly came back to bullying as an

underlying motivation for his actions, and not only just having been bullied in May 2020: 

“It’s about bein’ bullied. And me bein’ bullied for years straight on a continuous 

basis[.]” “Just got tired of bein’ bullied. That’s about as much as that I can say. Just got 

tired of bein’ bullied period.” “I lost my family behind all this and all of that because 

they felt like I was a weak person and this and this. And basically just got bullied into 

bein’ less of a man.” “They knew for a fact that they can bully me and get away with it 

‘cause it’s been goin’ on for years and — and that hurt a person’s pride. That hurt a 

person’s ego. . . . Especially when you lose everything, your wife lookin’ at you as less 

of a man. Your kids hearin’ about oh, your dad peed on hi[m]self at the store in an 

incident.” (Italics added.) 
12.

DISCUSSION

I. The Self-Defense Jury Instructions

A. Additional Factual Background

Lee’s trial counsel asked the court to instruct the jury on perfect self-defense, as 

laid out in CALCRIM No. 505. That instruction tells the jury that a defendant is not 

guilty of murder if he or she was justified in killing in lawful self-defense. To be lawful, 

a defendant must have actually and reasonably believed he or she was in imminent 

danger of being killed or suffering great bodily injury, that the immediate use of deadly 

force was necessary to defend against that danger, and the defendant used no more force 

than was reasonably necessary to defend against that imminent danger. (See CALCRIM 

No. 505.) Moreover, not only must a defendant’s beliefs have been reasonable, he or she 

must have acted only because of those beliefs. (Ibid.)

The trial court “rejected [CALCRIM No. 505], specifically recognizing that the 

Court must find that there is substantial evidence to support giving an instruction.” 

Although the court indicated there was evidence that Lee may have harbored a belief in 

the need for self-defense, it found there was not substantial evidence that this belief 

“would have been reasonable under the circumstances of this case[.]”

Instead, the court instructed on imperfect self-defense, using CALCRIM No. 571, 

and in pertinent part told the jury:

“A killing that would otherwise be murder is reduced to voluntary 

manslaughter if the defendant killed a person because he acted in imperfect selfdefense. 

“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 
13.

“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. 

“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 beliefs, 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. [¶] ... [¶]

“If you find Jerry Tibbs, Jr. threatened or harmed the defendant in the past, 

you may consider that information in evaluating the defendant’s beliefs. 

“If you find the defendant knew Jerry Tibbs, Jr. threatened or harmed 

others in the past, you may consider that information in evaluating the defendant’s 

beliefs.

“If you find the defendant received a threat from someone else that he 

associated with Jerry Tibbs, Jr., you may consider that threat in evaluating the 

defendant’s beliefs. [¶] ... [¶]

“The People have the burden of proving beyond a reasonable doubt the 

defendant was not acting in imperfect self-defense. If the People have not met this 

burden, you must find the defendant not guilty of murder.” (CALCRIM No. 571, 

italics omitted.) 

Lee’s trial counsel also asked the court to modify CALCRIM No. 571 by adding a 

pinpoint instruction containing language borrowed from the refused perfect self-defense 

instruction: “A defendant threatened or harmed by a person in the past is justified in 

acting more quickly or taking greater self-defense measures against that person;” and “A 

defendant is not required to retreat. He or she is entitled to stand his or her ground and 
14.

defend himself or herself and, if reasonably necessary, to pursue an assailant until the 

danger has passed. This is so even if safety could have been achieved by retreating.” 

The court acknowledged that Lee’s requested modifications of CALCRIM 

No. 571 were “a correct statement of the law as set forth in the instructions related to 

Perfect Self-Defense,” but refused to insert them into the imperfect self-defense 

instruction. 

B. Legal Background

“Whether or not to give any particular instruction in any particular case entails the 

resolution of a mixed question of law and fact that ... is however predominantly legal. 

As such, it should be examined without deference.” (People v. Waidla (2000) 22 Cal.4th 

690, 733.) Thus, “[w]e review the trial court’s decision de novo. In so doing, we must 

determine whether there was indeed sufficient evidence to support the giving of [an] 

instruction.” (People v. Cole (2004) 33 Cal.4th 1158, 1206; see People v. Simon (2016) 

1 Cal.5th 98, 132–133 (Simon) [analyzing court’s refusal to give an imperfect selfdefense instruction]; cf. People v. Moon (2005) 37 Cal.4th 1, 30 (Moon) [“a trial court 

may properly refuse an instruction offered by the defendant if it ... is not supported by 

substantial evidence”].) 

It is well-settled that a trial court has a sua sponte duty to instruct on the basic

principles of law relevant to the issues raised by the evidence and necessary for the jury’s 

understanding of the case. (People v. Brooks (2017) 3 Cal.5th 1, 73 (Brooks).) As a 

result, “[t]he trial court is charged with instructing upon every theory of the case 

supported by substantial evidence, including defenses that are not inconsistent with the 

defendant’s theory of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047, italics 

added; see People v. Thomas (2023) 14 Cal.5th 327, 385 (Thomas) [“ ‘[A] trial court 

must instruct on general principles of law relevant to the issues raised by the evidence

and necessary for the jury’s understanding of the case.’ ” (Italics added.)].) 

“Substantial evidence supporting sua sponte instruction on a particular defense is 

evidence that is ‘sufficient to “deserve consideration by the jury, i.e., ‘evidence from 

which a jury composed of reasonable [persons] could have concluded’ ” ’ that the 
15.

particular facts underlying the instruction did exist.” (Brooks, supra, 3 Cal.5th at p. 75; 

People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8 [“evidence that a reasonable jury 

could find persuasive”].) Nevertheless, “ ‘[s]peculative, minimal, or insubstantial 

evidence is insufficient....’ ” (Thomas, supra, 14 Cal.5th at p. 385.) “Although a trial 

court should not measure the substantiality of the evidence by undertaking to weigh the 

credibility of the witnesses, the court need not give the requested instruction where the 

supporting evidence is minimal and insubstantial.” (People v. Barnett (1998) 17 Cal.4th 

1044, 1145, fn. omitted.) “ ‘ “Doubts as to the sufficiency of the evidence to warrant 

instructions should be resolved in favor of the accused.” ’ ” (People v. Steskal (2021) 

11 Cal.5th 332, 345 (Steskal).)

Murder is the unlawful killing of a human being with malice aforethought. (§ 187, 

subd. (a).) As applied to murder, “[t]he doctrine of self-defense embraces two types: 

perfect and imperfect.” (People v. Rodarte (2014) 223 Cal.App.4th 1158, 1168.)

“A killing in perfect self-defense is justifiable homicide. [Citation.] Perfect selfdefense requires that ‘one must actually and reasonably believe in the necessity of 

defending oneself from imminent danger of death or great bodily injury.’ [Citations.] 

‘To satisfy the imminence requirement, “[f]ear of future harm — no matter how great the 

fear and no matter how great the likelihood of the harm — will not suffice. The 

defendant’s fear must be of imminent danger to life or great bodily injury.” ’ [Citation.]

‘ “ ‘[T]he peril must appear to the defendant as immediate and present and not 

prospective or even in the near future. An imminent peril is one that, from appearances, 

must be instantly dealt with.’ ” ’ ” (Thomas, supra, 14 Cal.5th at pp. 385–386, original 

italics.)

Moreover, “[a] bare fear ... is not sufficient to justify [a homicide]. But the 

circumstances must be sufficient to excite the fears of a reasonable person, and the party 

killing must have acted under the influence of such fears alone.” (§ 198, italics added;

see People v. Nguyen (2015) 61 Cal.4th 1015, 1045 (Nguyen) [discussing “fear alone”]; 

see also People v. Kaihea (2021) 70 Cal.App.5th 257, 265 (Kaihea) [“evidence of motive 

is relevant to refute a claim of self-defense”].) 
16.

Thus, “ ‘[t]he justification of [perfect] self-defense requires a double showing: that 

defendant was actually in fear of his life or serious bodily injury and that the conduct of 

the other part[ies] was such as to produce that state of mind in a reasonable person.’ ”

(People v. Watie (2002) 100 Cal.App.4th 866, 877.) This constitutes an objective 

assessment of the defendant’s perceived need to defend, and “[t]he ultimate question is 

whether a reasonable person . . . would believe in the need to kill to prevent imminent 

harm.” (People v. Humphrey (1996) 13 Cal.4th 1073, 1087 (Humphrey), original italics.)

Moreover, because it is an objective inquiry our Supreme Court rejected the “adoption of 

a ‘ “reasonable gang member” standard[]’ ” for the jury to consider in assessing “whether 

[a] defendant’s belief and, ultimately, [his or] her actions were objectively reasonable.”

(Ibid.)

“Imperfect self-defense, on the other hand, ‘occurs when a defendant acts in the 

actual but unreasonable belief that he or she is in imminent danger of great bodily injury 

or death.’ [Citation.] Imperfect self-defense reduces an intentional, unlawful killing to 

voluntary manslaughter, a lesser included offense of murder, by negating a defendant’s 

malice.” (Thomas, supra, 14 Cal.5th at p. 386, italics added.) As a result, “imperfect 

self-defense is not an affirmative defense, but a description of one type of voluntary 

manslaughter. Thus the trial court must instruct on this doctrine, whether or not 

instructions are requested by counsel, whenever there is evidence substantial enough to 

merit consideration by the jury that under this doctrine the defendant is guilty of 

voluntary manslaughter.” (People v. Manriquez (2005) 37 Cal.4th 547, 581; see also

Simon, supra, 1 Cal.5th at p. 132 [imperfect self-defense voluntary manslaughter is a

lesser included offense of murder not an affirmative defense].)

Even so, the imperfect self-defense doctrine “is a ‘ “narrow” ’ one and ‘will apply 

only when the defendant has an actual belief in the need for self-defense and only when 

the defendant fears immediate harm that ‘ “ ‘must be instantly dealt with.’ ” ’ ” (People v. 

Landry (2016) 2 Cal.5th 52, 98, original italics.) “ ‘Under the doctrine of imperfect selfdefense, when the trier of fact finds that a defendant killed another person because the 

defendant actually, but unreasonably, believed he was in imminent danger of death or 
17.

great bodily injury, the defendant is deemed to have acted without malice and thus can be 

convicted of no crime greater than voluntary manslaughter.’ [Citation.] ‘[J]ust as with 

perfect self-defense or any defense, “[a] trial court need give a requested instruction 

concerning a defense only if there is substantial evidence to support the defense.” ’ ” 

(Nguyen, supra, 61 Cal.4th at pp. 1048–1049, original italics.)

“The subjective elements of [perfect] self-defense and imperfect self-defense are 

identical. Under each theory, the appellant must actually believe in the need to defend 

himself against imminent peril to life or great bodily injury. To require instruction on 

either theory, there must be evidence from which the jury could find that appellant 

actually had such a belief.” (People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262.) 

Nevertheless, a trial court is not obligated to instruct on both theories of self-defense 

merely because it instructed on one of them. (People v. Hill (2005) 131 Cal.App.4th 

1089, 1103 (Hill), overruled on other grounds in People v. French (2008) 43 Cal.4th 36, 

48, fn. 5 [“the concepts of unreasonable self-defense and perfect self-defense are 

independent, and the giving of instructions on the former does not compel instructions on 

the latter theory of defense”]; cf. People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1276

[“[W]e reject defendant’s contention the trial court was required sua sponte to instruct on 

imperfect self-defense because it instructed on perfect self-defense.”].)

Similarly, if there was no substantial evidence of an imminent danger of great 

bodily injury or death, a trial court does not err by refusing to instruct on either theory of 

self-defense. (See Simon, supra, 1 Cal.5th at p. 134 [because there was not substantial 

evidence supporting the defendant’s actual belief of imminent danger of death or great 

bodily injury, the trial court would not have erred had it refused to instruct on either form 

of self-defense].) 

C. Failure to Give a Perfect Self-Defense Instruction

Lee first claims that the trial court’s refusal to instruct the jury on perfect selfdefense was reversible error. His arguments and authorities primarily focus on why he 

was fearful and whether that fear was justified, but where Lee fails is his inability to point 

to substantial evidence that would show that his fears were reasonably related to 
18.

imminent death or great bodily injury. Rather, at best, Lee’s fears were that death or 

great bodily harm would someday be realized and he believed he needed to strike first, 

i.e., to become as he put it the “aggressor,” and eliminate or at least minimize that 

possibility. As such, he was not entitled to perfect self-defense instructions. 

It must be reiterated at the outset that for either perfect or imperfect self-defense, 

the fear must be of imminent harm. We “emphasize what should be obvious. Fear of 

future harm — no matter how great the fear and no matter how great the likelihood of the 

harm — will not suffice. The defendant’s fear must be of imminent danger to life or great 

bodily injury.” (In re Christian S. (1994) 7 Cal.4th 768, 783 (Christian S.), original 

italics; People v. Lopez (2011) 199 Cal.App.4th 1297, 1305 [“The danger must be 

imminent; mere fear that it will become imminent is not enough.” (Italics added.)]; see 

also Humphrey, supra, 13 Cal.4th at p. 1094 (conc. opn. of Brown, J.) [“A previous 

threat, unaccompanied by any demonstration of an immediate intention and ability to 

carry it out, will not justify an assault.”].) “ ‘ “An imminent peril is one that, from 

appearances, must be instantly dealt with.” ’ ” (Christian S., supra, 7 Cal.4th at p. 783, 

italics omitted; see People v. Aris (1989) 215 Cal.App.3d 1178, 1189 (Aris), overruled on 

other grounds in Humphrey, supra, 13 Cal.4th at p. 1089 [“the criminal law will not even 

partially excuse a potential victim’s slaying of his attacker unless more than merely 

threats and a history of past assaults is involved”].) 

Under the circumstances presented here, there was no substantial evidence that 

Tibbs presented an imminent danger to Lee that had to be instantly dealt with at the 

moment when he opened fire. (See Steskal, supra, 11 Cal.5th at pp. 346-347 [no 

imminent danger when defendant was the “aggressor,” and opened fire on sheriff’s 

deputy as he drove up to a 7-Eleven, still seated in his car, and before he had an 

opportunity to access his own weapon].) 

It is true that evidence of prior threats may be relevant to self-defense even where 

the threats have not been made by the actual homicide victim, but by members of a group 

who in the defendant’s mind are reasonably associated with the victim. (See People v. 

Minifie (1996) 13 Cal.4th 1055, 1067 (Minifie) [“ ‘evidence of threats from the victim’s 
19.

associates may be used in support of a claim of self-defense “to show that the defendant 

had reason to think his life in danger” ’ ”].) Nevertheless, “antecedent threats” are only

probative “ ‘when the threats are followed by some “overt act” that has placed the 

defendant in immediate danger.’ ” (Minifie, supra, 13 Cal.4th at p. 1069, italics added.)

Similarly, “ ‘ “previous threats alone, ... unless coupled at the time with an 

apparent design then and there to carry them into effect, will not justify a deadly 

assault....” ’ ” (People v. Curtis (1994) 30 Cal.App.4th 1337, 1359 (Curtis); see also 

People v. Duchon (1958) 165 Cal.App.2d 690, 693 [“There can be no reasonable ground 

for apprehending harm in the absence of some overt act or physical demonstration.”]; 

People v. Lucas (1958) 160 Cal.App.2d 305, 310 [“[T]hreats alone, unaccompanied by 

some act which induces in defendant a reasonable belief that bodily injury is about to be 

inflicted, do not justify a homicide.”].)

There was no substantial evidence from which the jury could have concluded Lee

killed Tibbs due to an actual and reasonable belief that he needed to defend himself from 

an imminent threat to his life from Tibbs. Lee did not say he believed he had to kill 

Tibbs to defend himself from an imminent threat posed by Tibbs. There was no evidence 

Tibbs was involved in the Facebook exchange or made any threats online, and Tibbs was 

not present in the liquor store when Lee was threatened to the point of urination. 

Although Tibbs had been there when Lee got roughed up behind the dispensary on 

May 19, Tibbs only took swings at Lee and missed, and it was the others who 

subsequently beat up Lee. 

Tibbs was not even outside the dispensary when he was shot but was instead 

sitting in a chair behind a closed glass door inside the shop. No one else had come out of 

the shop except the woman who Lee thought was an “innocent” customer or employee, 

and whom he did not shoot. There was no evidence Tibbs was armed or that Tibbs was

even aware of Lee’s presence while Lee was sneaking around in the parking lot outside 

the shop. All Lee supposedly relied upon before opening fire was his claim that someone

yelled, “Hey” at about the same time Tibbs had turned around and re-entered the 

dispensary after the woman left.
20.

Similarly, nothing in the Facebook threats was specific as to when and where the 

threats were to be carried out, or by whom, and none was a death threat. There was no 

one else immediately present, East Siders or otherwise, when Tibbs was killed. Indeed, 

Tibbs was merely sitting inside the shop when he was shot and no one else was hit by the 

other four shots. The mysterious “Hey” did not constitute substantial evidence — that is, 

evidence from which a jury composed of reasonable persons could find — that Lee 

reasonably feared imminent great bodily injury or death from an unarmed man sitting 

behind a closed door inside the dispensary. (Cf. People v. Rogers (2006) 39 Cal.4th 826, 

883–884 (Rogers) [not error for failing to instruct even on imperfect self-defense when 

the defendant, “a deputy sheriff armed with a revolver” shot “an unarmed 15-year-old 

girl” when she was walking toward him with her finger pointing at him].)

Furthermore, for perfect self-defense “the party killing must have acted under the 

influence of such fears alone.” (§ 198, italics added; Nguyen, supra, 61 Cal.4th at 

p. 1045.) Lee admitted he was not solely motivated by a fear of imminent death or great 

bodily injury in killing Tibbs. He labeled himself the “aggressor,” and said he was also 

motivated by embarrassment, shame, and a desire to end years of being bullied, none of 

which was directly attributable to Tibbs. “The party killing is not precluded from feeling 

anger or other emotions save and except fear; however, those other emotions cannot be 

causal factors in his decision to use deadly force. If they are, the homicide cannot be 

justified on a theory of self-defense.” (Ibid.) Such is the case here.

This appears to have been a preemptive strike in Lee’s mind: he would take out his 

perceived enemies before they had a chance to get him; Tibbs just happened to be the 

first one he saw. As Lee told the detectives, “I made that decision to be sure that I 

wouldn’t die first. ... I just felt like I had to take care of business before these guys killed 

me.” It “[s]ounds ... like it’s premeditated but ... I had to do what I had to do because I 

was going to die. Point blank, period.... These guys was going to kill me.” Perhaps

someday, but when, and why Tibbs?

As we have emphasized, self-defense is valid only if the defendant fears imminent 

harm. Fear of future harm does not justify the kind of tactical preemptive strike Lee used 
21.

here in the name of self-defense. (Curtis, supra, 30 Cal.App.4th at pp. 1359-1360, citing

People v. Scoggins (1869) 37 Cal. 676, 683-684.) Moreover, when a defendant acts out 

of fear and other passions by making an anticipatory strike toward someone who may not 

even know the defendant is present, the defendant might arguably be described as acting 

based on all those intense emotions, but he or she may not reasonably be described as 

having acted in self-defense only in response to a threat of death or great bodily injury.

Tibbs was ambushed, not killed in self-defense. Though Lee’s fears and passions 

may be understandable in the abstract, the law does not countenance the kind of 

preemptive strike involved here in the name of self-defense. For these reasons, there 

being no substantial evidence to justify it, the trial court did not err in failing to instruct 

on the doctrine of perfect self-defense. 

D. Failure to Modify the Imperfect Self-Defense Instruction

Lee alternatively claims the trial court prejudicially erred by refusing to modify 

the imperfect self-defense instruction to include language taken from the perfect selfdefense instruction. We are not persuaded.

As discussed above, “ ‘a trial court must instruct on general principles of law 

relevant to the issues raised by the evidence and necessary for the jury’s understanding of 

the case.’ ” (Thomas, supra, 14 Cal.5th at p. 385.) This may include providing, upon 

request, “legally correct and factually warranted pinpoint instructions designed to 

elaborate and clarify other instructions....” (People v. Hughes (2002) 27 Cal.4th 287, 

362.) When considering whether to give a pinpoint instruction requested by a party, the 

court should consider whether the instruction incorrectly states the law, is argumentative, 

duplicative, potentially confusing, or is not supported by substantial evidence. (Moon, 

supra, 37 Cal.4th at p. 30.) The court can refuse pinpoint instructions that “highlight”

specific evidence because this “type of instruction ‘invite[s] the jury to draw inferences 

favorable to one of the parties from specified items of evidence,’ [and] is considered 

‘argumentative’ and therefore should not be given.” (People v. Earp (1999) 20 Cal.4th 

826, 886.)
22.

Lee’s trial counsel asked that two paragraphs taken in part from the perfect selfdefense instruction be added to the imperfect self-defense instruction: “[S]omeone 

threatened or harmed by a person in the past is justified in acting more quickly or taking 

greater self-defense measures against that person;” and “[A] defendant is not required to 

retreat. He or she is entitled to stand his or her ground and defend himself or herself and, 

if reasonably necessary, to pursue an assailant until the danger has passed. This is so 

even if safety could have been achieved by retreating.” 

On appeal, Lee has not resurrected the failure to give a “retreat” instruction and 

we therefore deem it abandoned. Instead, he focuses on his contention that “the court 

here erred by refusing to instruct that a person who has been violently attacked by the 

decedent or associates is justified in reacting more quickly or harshly because that 

precept was central to appellant’s defense.” Throughout his briefing, he refers to this 

proposed modification as “the antecedent threat instruction.”

First, Lee implies that no antecedent threat instructions were given, and it was 

therefore prejudicial error. However, the court did instruct on prior threats: “If you find 

Jerry Tibbs, Jr. threatened or harmed the defendant in the past, you may consider that 

information in evaluating the defendant’s beliefs. [¶] If you find the defendant knew 

Jerry Tibbs, Jr. had threatened or harmed others in the past, you may consider that 

information in evaluating the defendant’s beliefs. [¶] If you find the defendant received 

a threat from someone else that he associated with Jerry Tibbs, Jr., you may consider that 

threat in evaluating the defendant’s beliefs.” (Italics added.) 

Thus, when properly framed, Lee’s complaint is not that there were no antecedent 

threat instructions given, but that the jury was not also told that those earlier threats may 

be used to indicate that Lee was “justified in acting more quickly or taking greater self-
23.

defense measures” against Tibbs “because that precept was central to appellant’s 

defense.”13 (Italics added.) 

However, as Lee admits in his briefing, this additional language was needed only 

because it “focuses the jury on the reasonableness of the defendant’s belief,” and the 

“reasonableness of defendant’s conduct.” Similarly, he argues that “[i]nstructing that a 

reasonable person in such a situation ‘is justified in acting more quickly and taking 

harsher measures . . . in the event of an assault . . . than would a person who had not 

received such threats’ would have focused the jury’s attention on the reality of [Lee’s]

circumstances as no standard self-defense instruction does.” 

But that is the point: the reasonable person, no matter how he or she is defined in 

a particular context, is irrelevant to imperfect self-defense, which by definition is 

predicated on an actual and unreasonable belief in a need for self-defense. A trial court 

may properly refuse an instruction offered by the defendant if it incorrectly states the law. 

(Moon, supra, 37 Cal.4th at p. 30.) Importing a reasonable person standard into an 

imperfect self-defense instruction would incorrectly state the law of imperfect selfdefense, and the trial court properly denied Lee’s modification of CALCRIM No. 571. 

Expanding further on “reasonableness,” Lee also claims that: “The question is not 

whether appellant’s fear was reasonable but whether his reaction to that fear was 

reasonable. The missing [pinpoint part of the perfect self-defense] instruction would 

have told the jury that one who has received credible threats against his life ‘is justified in 

acting more quickly and taking harsher measures’ for his protection than one who has not 

received prior threats.” (Original italics.) 

It is unclear what Lee means by the term “justified” if it is not “reasonable,” in 

which case it again is irrelevant. Moreover, he provides no authority for a “justified”

reaction claim in an imperfect self-defense context. Indeed, imperfect self-defense does 

13 Even without the specific pinpoint instructions she requested, Lee’s trial 

attorney was permitted to fully argue “along those lines and in that vein,” and she did;

she protested that mere argument was insufficient.
24.

not result in a justified killing; it merely negates malice and reduces the crime of murder 

to manslaughter.

Furthermore, for imperfect self-defense the question is whether a defendant’s 

beliefs were actual but unreasonable. There is no mention about a defendant’s reaction to 

his beliefs, whether reasonable or unreasonable, and telling the jury that a defendant may 

react reasonably to an unreasonable belief would not only misstate the law but would 

very likely confuse them. 

Simply put, the language Lee wanted taken from the perfect self-defense 

instruction was meant to tell the jury that it may consider antecedent threats as a factor in 

determining that a reasonable person’s beliefs in the need for self-defense were still 

reasonable even if he or she may have acted “more quickly and [took] harsher measures 

for his [or her] protection” than would a reasonable person who had not received the prior 

threats. It therefore has no place in an imperfect self-defense instruction.14

Finally, Lee argues the trial court’s refusal to modify CALCRIM No. 571 was 

error because the court was “reluctant” to tamper with the standard instructions when the 

standard instructions do not carry the force of law. 

First, we review claims of instructional error de novo, not the reasons the trial 

court gives for using or not using them. Second, we do advise that a trial court should 

avoid modifying model instructions, particularly the CALCRIM instructions.15 Third, 

14 In support of his attempt to shoehorn reasonableness into imperfect selfdefense — which by definition is predicated on unreasonableness — Lee cites several 

cases to bolster his claim that the antecedent threat paragraphs from the perfect selfdefense instruction should have been added to the antecedent threat paragraphs of the 

imperfect self-defense instruction. (People v. Moore (1954) 43 Cal.2d 517; People v. 

Gonzales (1992) 8 Cal.App.4th 1658; People v Pena (1984) 151 Cal.App.3d 462; 

People v. Bush (1978) 84 Cal.App.3d 294; People v. Torres (1949) 94 Cal.App.2d 146.) 

We find them distinguishable because none was an imperfect self-defense case; all were 

perfect self-defense and/or heat of passion cases. Lee cites no case holding that the 

antecedent threat paragraphs taken from perfect self-defense should, or even could, be

added to an imperfect self-defense instruction, and we have found none.

15 “The California jury instructions approved by the Judicial Council are the 

official instructions for use in the state of California.” (Cal. Rules of Court, rule 2.1050, 
25.

and more importantly, a trial court is not obligated to disregard the standard instructions 

merely to permit pinpoint instructions that incorrectly state the law.

There is no hybrid self-defense theory that incorporates parts of perfect selfdefense and its reasonableness predicates with imperfect self-defense, but Lee’s proposed 

pinpoint instruction attempted to do just that. As such, it was properly refused. In 

essence, Lee’s claim about the denial of his pinpoint instruction to supplement the 

imperfect self-defense instruction is simply a rehash of his earlier arguments that the jury 

should have been instructed on perfect self-defense; a claim which we have already 

rejected.16

subd. (a).) The CALCRIMs are such instructions. (See People v. Lucas (2014) 

60 Ca1.4th 153, 294, disapproved on other grounds in People v. Romero and Self (2015) 

62 Ca1.4th 1, 53, fn. 19 [CALCRIMs “are now endorsed and viewed as superior” to the 

old CALJIC instructions by the Judicial Council])

16 Lee tries to couch his instructional error claims in constitutional terms, 

contending the trial court’s rulings on both the perfect and imperfect self-defense 

instructions violated his 6th and 14th Amendment rights “to present a full defense.” 

Even though the trial court earlier granted Lee’s in limine motion to “federalize” any 

evidentiary objections under those Amendments, no constitutional objections were made 

to the trial court’s denial of his requests regarding the self-defense instructions. 

“Ordinarily, a criminal defendant who does not challenge an assertedly erroneous 

ruling of the trial court in that court has forfeited his or her right to raise the claim on 

appeal. [Citations.] As the United States Supreme Court recognized in United States v. 

Olano [(1993) 507 U.S. 725, 731] ‘ “[n]o procedural principle is more familiar to this 

Court than that a constitutional right,” or a right of any other sort, “may be forfeited in 

criminal as well as civil cases by the failure to make timely assertion of the right before a 

tribunal having jurisdiction to determine it.” ’ ” (In re Sheena K. (2007) 40 Cal.4th 875, 

880–881.) To that extent, Lee’s constitutional claims were forfeited. 

Forfeiture notwithstanding, “[n]o separate constitutional discussion is required ... 

when rejection of a claim on the merits necessarily leads to rejection of any constitutional 

theory or ‘gloss’ raised for the first time [on appeal].” (People v. Scott (2011) 52 Cal.4th 

452, 487, fn. 29; People v. Scott (2015) 61 Cal.4th 363, 394–395 [“Rejection of a claim 

on its merits necessarily disposes of the additional constitutional ‘gloss’.”]; People v. 

Loker (2008) 44 Cal.4th 691, 704, fn. 7; People v. Wallace (2008) 44 Cal.4th 1032, 1050, 

fn. 4.) So too here.
26.

E. Conclusion

We end where we began: the dispositive question in this case is imminence. 

Whether for perfect or imperfect self-defense, whether for reasonable or unreasonable 

beliefs, one important aspect of the law of self-defense is the same for both: “Belief in 

future harm is not sufficient, no matter how great or how likely the harm is believed to 

be.” (CALCRIM Nos. 505 and 571, italics added.) Simply put, the imminence 

requirement is the same for perfect and imperfect self-defense. (Aris, supra,

215 Cal.App.3d at p. 1185 [“the settled law in California requires an [actual] belief that 

the killer is in imminent danger of death or great bodily injury from the victim for both 

perfect and imperfect self-defense”].) If there is not substantial evidence of imminent 

danger, instructions on either form of self-defense do not apply. (Simon, supra, 1 Cal.5th 

at p. 134 [because there was not substantial evidence supporting imminent danger of 

great bodily injury or death, the trial court would not have erred had it refused to instruct 

on either form of self-defense].) 

As Lee told the police, he had become the “aggressor,” not the defender: “I forced 

myself to build up enough courage to basically say, ‘I’m not going to let you just do me 

like this and keep bullying me and threatening me and all the things that you do.’ So I 

reacted the way I reacted because I – I was – I’m scared and I was tired of being cooped 

up in the corner....” 

Two weeks before the shooting, in his May 19 self-video, Lee had said:

“[T]hey wanted to jump me today [inaudible] hurt me. I have no choice ‘cause 

I’m definitely sure that I’m gonna go to jail but what they did to me is not 

acceptable. So, I have to defend myself because now, I’m in fear that they gonna 

come back and do something more to me knowing that I’m on the streets. That 

being said, I’m gonna end it right here because I’m going to be [inaudible] who 

did what they did to me. Police [inaudible] car and watch everything that 

happened. To be continued.” (Italics added.) 

Later, when a detective asked Lee about the night of the shooting, “You felt like 

your life was in imminent danger?” Lee replied “I already knew my life was in imminent 

danger. I shouldn’t even have been up there.” (Italics added.) “The things that I did, the 
27.

way I went about it, was wrong. Because, uh, after the fact, it was more like I became the 

aggressor afterwards because of my mental anguish.” To repeat: Lee shot Tibbs because 

of his pent-up mental anguish, not because of his fear of imminent great bodily harm or 

death. 

The imminence requirement “reflects the great value our society places on human 

life. The criminal law would not sentence to death a person ... for a murder he merely 

threatened to commit, even if he had committed threatened murders many times in the 

past and had threatened to murder the defendant; it follows that the criminal law will not 

even partially excuse [under imperfect self-defense] a potential victim’s slaying of his 

attacker unless more than merely threats and a history of past assaults is involved.” (Aris, 

supra, 215 Cal.App.3d at p. 1189.)

Lee had gone to the liquor store two hours before the shooting, when it was still 

light out, made a purchase and left without incident and without going near the 

dispensary. He returned later, when it had gotten dark, went around back, approached the 

dispensary from the south, and when he saw Tibbs and supposedly heard someone say 

“Hey,” he “end[ed] it right [th]ere.” 

After all he had been through, combined with his belief that all the bad things in 

his life would continue unless he did something, he had finally had enough. He 

apparently decided he was at least going to ensure that some of his future-looking fears

would never happen, i.e., before they became imminent. In other words, the way he 

made sure that some of his fears would never truly become imminent was by going back 

to the dispensary that night and, before anything else happened and with no threat that

must be instantly dealt with, kill Tibbs. In sum, because there was no substantial 

evidence of an immediate need to resort to lethal force in self-defense at that point, the 

trial court did not err in instructing the jury in the manner it did.
28.

II. Remand for Resentencing

Lastly, Lee contends that we must vacate his sentence and remand the matter 

because of three legislative changes to the sentencing laws that have been made since he 

was sentenced in September 2021. 

The People concede that remand is necessary as to one of those changes, but do 

not take a position on the other two, concluding the issue is moot because at resentencing 

the trial court will be required to apply them anyway. 

We accept the People’s concession, but to assist the trial court on remand, we 

include a brief discussion as to all three amended sections because all will apply at the 

resentencing hearing. (See, e.g., People v. Bautista-Castanon (2023) 89 Cal.App.5th 

922, 926–928.)

A. Section 654 (Assembly Bill No. 518)

Under section 654, when a defendant faces convictions for acts or omissions 

“punishable in different ways by different provisions of law,” that defendant may face 

punishment under either provision, but not both. Lee was convicted in four counts for the 

same act: murder, by firing a gun into an occupied building, while being a felon in 

possession of a gun and ammunition. The court imposed its base term sentence on the 

murder and imposed and stayed the execution of the sentences on the other three counts 

under section 654.

Until recently, section 654 required trial courts to impose a sentence “under the 

provision that provide[d] for the longest potential term of imprisonment.” (Former 

§ 654.) “In 2021, however, the Legislature enacted Assembly Bill No. 518 [(2021−2022 

Reg. Sess.)] (Stats. 2021, ch. 441), which removes the requirement to impose the longest 

prison term.” (People v. Sek (2022) 74 Cal.App.5th 657, 673 (Sek).) As a result, a trial 

court now may exercise its discretion to select any provision as the base term, but not 

necessarily the one that imposes the longest sentence. (Ibid.)
29.

Assembly Bill No. 518 applies retroactively to cases that were not final on 

January 1, 2022. (Sek, supra, 74 Cal.App.5th at p. 673; accord People v. Mani (2022) 

74 Cal.App.5th 343, 379.) This is such a case. On remand, the court must therefore be 

given an opportunity to exercise its discretion to select a different base term and stay the 

sentences on the other convictions if it so chooses.

B. Section 1385 (Senate Bill No. 81)

In 2021 the Legislature also enacted Senate Bill No. 81 (2021–2022 Reg. Sess.)

(Stats. 2021, ch. 721, § 1), which amended section 1385 to specify factors that the trial 

court must consider when deciding whether to strike enhancements from a defendant’s 

sentence in the interest of justice. (See § 1385, subd. (c)(2)(B), (C), & (E).) “These 

requirements ‘shall apply to sentencings occurring after the effective date of’ Senate Bill 

No. 81.” (Sek, supra, 74 Cal.App.5th at p. 674.)

Section 1385, subdivision (c)(1) now provides that an enhancement should be

dismissed whenever its application could result in a sentence longer than 20 years “if it is 

in the furtherance of justice to do so.” In exercising its discretion under this subdivision, 

“the court shall consider and afford great weight to evidence offered by the defendant to 

prove that any of the mitigating circumstances ... are present,” including, as here, the 

circumstance that “[t]he application of [the] enhancement could result in a sentence of 

over 20 years,” provided, however, “unless the court finds that dismissal of the 

enhancement would endanger public safety.” (§ 1385, subd. (c)(2), (c)(2)(C); italics 

added.)

Because we are otherwise remanding the matter for resentencing, the resentencing 

in this case will necessarily take place after Senate Bill No. 81 became effective on 

January 1, 2022, and the changes made to section 1385 will therefore apply. (Sek, supra,

74 Cal.App.5th at p. 674.) 

Even so, on remand the trial court still retains discretion to decide whether to 

impose the enhancement notwithstanding the “shall be dismissed” language in 
30.

section 1385, subdivision (c)(2)(C), if it finds that dismissal of the enhancement would 

endanger public safety. (People v. Lipscomb (2022) 87 Cal.App.5th 9, 18–20, rev. den. 

Mar. 22, 2023, S278429; accord People v. Mendoza (2023) 88 Cal.App.5th 287, 297, rev. 

den. Apr. 26, 2023, S279144.)

C. Section 1170 (Senate Bill No. 567)

On count 2, the trial court imposed a 42-years-to-life sentence and stayed it 

pursuant to section 654. It was calculated based on an upper term of seven years, plus 

25 years to life for the gun-use enhancement, plus 10 years for the two serious felony 

priors. (See §§ 667, subd. (e)(2)(A)(iii), and 1170.12, subd. (c)(2)(A)(iii).) Similarly, the 

court imposed upper-term sentences of three years, doubled to six under the Three Strikes 

Law, for the felon in possession of a firearm and ammunition counts, and also stayed 

them under section 654. 

Senate Bill No. 567 (2021–2022 Reg. Sess.) amended section 1170 and, among 

other things, created a presumption in favor of a low-term sentence in certain 

circumstances. (Stats. 2021, ch. 731, § 1.3, adding § 1170, subd. (b)(1), (b)(2), and 

(b)(6).)17 Specifically, section 1170, subdivision (b)(6) now provides: “[U]nless the 

court finds that the aggravating circumstances outweigh the mitigating circumstances 

[such] that imposition of the lower term would be contrary to the interests of justice, the 

court shall order imposition of the lower term if any of the following was a contributing 

17 Three bills amending section 1170 were enacted and signed into law on the 

same date during the 2021–2022 Regular Session: Senate Bill No. 567 (Stats. 2021, 

ch. 731, § 1.3); Assembly Bill No. 124 (Stats. 2021, ch. 695, § 5); and Assembly Bill 

No. 1540 (Stats. 2021, ch. 719, § 2). Senate Bill No. 567 takes precedence over the other 

two because it bears the highest chapter number and was enacted last. (Gov. Code, 

§ 9605, subd. (b); In re Thierry S. (1977) 19 Cal.3d 727, 738–739.) Senate Bill No. 567

states that if all three bills amending section 1170 are enacted and become effective on or 

before January 1, 2022, and it is enacted last, then section 1.3 of that bill, which 

incorporates the amendments proposed by all three bills, shall become the operative law. 

(Stats. 2021, ch. 731, § 3.)
31.

factor in the commission of the offense: [¶] (A) The person has experienced 

psychological, physical, or childhood trauma, including, but not limited to, abuse, 

neglect, exploitation, or sexual violence....” (§ 1170, subd. (b)(6), italics added.)

The People concede and we agree that new section 1170, subdivision (b) applies 

retroactively to this case as an ameliorative change in the law applicable to all nonfinal 

convictions on appeal. (See People v. Dunn (2022) 81 Cal.App.5th 394, 402–403, review 

granted Oct. 12, 2022, S275655; People v. Lopez (2022) 78 Cal.App.5th 459, 465; 

People v. Flores (2022) 75 Cal.App.5th 495, 500; see People v. Superior Court (Lara)

(2018) 4 Cal.5th 299, 308 [the “Estrada rule”18].) 

Lee claims “the appellate record is rife with [his] past physical trauma, including 

being beaten at the direction of the man he ultimately shot,[

19] and gang harassment so 

physically frightening he urinated on himself. These circumstances could support a 

finding that prior trauma played a role in appellant’s commission of the offense, thereby 

triggering the presumption that low-term sentences are appropriate.” While not 

expressing any opinion whether this is true or not, it appears section 1170, 

subdivision (b)(6)(A) may potentially be implicated, and on remand the trial court must 

therefore address the issue in the first instance. 

Relevant to that inquiry, we note that even before section 1170, 

subdivision (b)(6)(A) became operative, in People v. Keelen (1998) 62 Cal.App.4th 813, 

815 (Keelen), the court found that trial courts retain discretion under section 1170, 

subdivision (b) to select the upper, middle, or lower term even when calculating an 

indeterminate third strike sentence. 

18 In re Estrada (1965) 63 Cal.2d 740.

19 This misstates the evidence; there is nothing in the record to indicate Tibbs 

“directed” anyone to beat Lee up on May 19. In all of his varying accounts of that 

incident, Lee admitted Tibbs was not even present. 
32.

When sentencing on a third strike conviction, a court is required to select the 

greatest minimum term of imprisonment from three options. (§ 667, subd. (e)(2)(A); see 

People v. Miranda (2011) 192 Cal.App.4th 398, 414–417; People v. Byrd (2001) 

89 Cal.App.4th 1373, 1379–1382.) Option one, as was used in Keelen, supra, is 

calculated as “[t]hree times the term otherwise provided as punishment.” (§ 667, 

subd. (e)(2)(A)(i).) Option two is simply 25 years. (§ 667, subd. (e)(2)(A)(ii).) Option 

three is first calculated as a normal conviction under section 1170 plus “any applicable 

enhancement that would be used to lengthen the term the defendant would receive absent 

the Three Strikes law.” (People v. Acosta (2002) 29 Cal.4th 105, 115.) 

Here, the trial court employed option three because 42 years to life was the 

greatest of the three minimum term options: an upper term of seven years for the 

section 246 offense, plus 25 years to life for the gun-use enhancement, plus 10 years for 

the two serious felony priors. 

However, a violation of section 246 is punishable by three, five, or seven years

and, after Keelen, under option three the court had discretion to calculate the greatest 

minimum indeterminate sentence for count 2 as either 38, 40, or 42 years to life, all three 

of which were greater than the sentences calculated under options one or two. (See 

Keelen, supra, 62 Cal.App.4th at p. 820.)

As a result, when applying newly enacted section 1170, subdivision (b)(6) on 

remand, the trial court’s choice of the upper term of seven years in its calculation must be

revisited because 38 years to life would be the new presumptive low-term-based greatest 

minimum indeterminate sentence.

Similarly, also under new section 1170, subdivision (b)(6), the upper-term basis 

for Lee’s two six-year determinate sentences on counts 3 and 4 must also be vacated and 

reconsidered because both offenses are punishable by 16 months, two years, or three 

years, with a now-presumptive term of 16 months, doubled to 32 months under the Three 

Strikes Law. (§§ 29800, 30305; see § 18, subd. (a).) The trial court must therefore be 
33.

given an opportunity to exercise its discretion under section 1170, subdivision (b)(6) as to 

counts 3 and 4 as well.

We emphasize, however, that section 1170, subdivision (b)(6)(A) does not require

imposition of the lower term in every case in which a defendant may have experienced 

psychological or physical trauma. Rather, the provision establishes a presumption in 

favor of the lower term but only if the trauma was “a contributing factor” in the 

commission of the crimes committed and “unless the court finds that the aggravating 

circumstances outweigh the mitigating circumstances [such] that imposition of the lower 

term would be contrary to the interests of justice....” (§ 1170, subd. (b)(6)(B).) Those 

determinations will be made by the trial court on remand.

D. Conclusion

The current record before us does not “clearly indicate” the trial court would have 

made the same sentencing decisions it made in 2021 after the enactments of Assembly 

Bill No. 518 and Senate Bill Nos. 81 and 567. (People v. Gutierrez (2014) 58 Cal.4th 

1354, 1391 [remand is appropriate “unless the record ‘clearly indicate[s]’ that the trial 

court would have reached the same conclusion ‘even if it had been aware that it had such 

discretion’ ”].) Lee is therefore entitled to a full resentencing, at a hearing where the trial 

court may fully exercise its newly informed discretion. (People v. Buycks (2018) 

5 Cal.5th 857, 893 [“when part of a sentence is stricken on review, on remand for 

resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can 

exercise its sentencing discretion in light of the changed circumstances’ ”].)

“A court conducting a full resentencing also may, as appropriate, revisit 

sentencing choices such as a decision to stay a sentence [citation], to impose an upper 

term instead of a middle term [citation], or to impose concurrent instead of consecutive 

sentences [citation].” (People v. Valenzuela (2019) 7 Cal.5th 415, 425.) In other words, 

the trial court may revisit all of its earlier discretionary sentencing decisions, but in so 

doing, the court must be cognizant of the changes made to sections 654, 1385, and 1170. 
34.

“Application of the amended statutes will require the trial court, at a minimum, to 

reconsider which triad term to impose for certain counts of conviction and which terms to 

stay under section 654. [Citations.] As part of that process, the court should also be free 

to reconsider any other components of the aggregate sentence it crafted in [2021], which 

in this case included multiple counts of conviction and multiple enhancements.” 

(People v. Jones (2022) 79 Cal.App.5th 37, 46.)

Both parties may present their arguments and evidence pertaining to the changes 

made to any of the now-applicable sentencing laws to the trial court in the first instance. 

(People v. Whitmore (2022) 80 Cal.App.5th 116, 132 [“On remand, the parties are free to 

argue for the term they believe is appropriate under the applicable law.”]; People v. Lewis

(2022) 86 Cal.App.5th 34, 36 (Lewis) [“any arguments arising under newly enacted 

sentencing legislation should be raised in the trial court in the first instance on 

remand”].)20

20 We hasten to add that after our Supreme Court’s recent decision in People v. 

Tirado (2022) 12 Cal.5th 688 (Tirado), the trial court now also has discretion to impose 

and execute a lesser firearm enhancement than the 25-years-to-life term it imposed under 

section 12022.53, subdivision (d) on count 1, although it may not do so on count 2. 

(Tirado, supra, 12 Cal.5th at p. 700, fn. 12 [the way the statutes are written, discretion 

does not apply to 12022.53, subd. (d) findings that are attached to a section 246 charge].) 

Relying on Tirado, some Courts of Appeal have held that a trial court also has 

discretion to impose an uncharged lesser included enhancement under section 12022.5, 

subdivision (a) after striking a greater enhancement under section 12022.53. (See 

People v. Fuller (2022) 83 Cal.App.5th 394, 397, 403, rev. granted Nov. 22, 2022, 

S276762; People v. Johnson (2022) 83 Cal.App.5th 1074, 1080, 1088, rev. granted 

Dec. 14, 2022, S277196.) However, in Lewis, supra, 86 Cal.App.5th at pp. 36, 39, 41, 

we reached the opposite conclusion. 

On September 28, 2022, the Supreme Court granted review of an unpublished 

Court of Appeal decision that, like Lewis, concluded that a trial court lacks such 

authority. (See People v. McDavid (July 14, 2022, D078919) [nonpub. opn.] [Cal.App. 

Unpub. LEXIS 4364], rev. granted Sept. 28, 2022, S275940.) The Supreme Court also 

denied the People’s request to publish the McDavid decision. (Ibid.)

Although the issue is not before us in this case, and our high court will resolve the 

appellate court split and provide the trial courts with appropriate guidance, we suggest 
35.

DISPOSITION

The judgment is affirmed in part, reversed in part, and remanded for further 

proceedings. The convictions and true findings are affirmed. The sentence is vacated, 

and the matter is remanded for resentencing. 

We express no opinion as to how the trial court should exercise its sentencing 

discretion on remand. Following resentencing, the superior court clerk is directed to 

prepare an amended abstract of judgment and forward certified copies to the Department 

of Corrections and Rehabilitation and any other necessary parties.

SNAUFFER, J.

WE CONCUR:

LEVY, ACTING P.J.

SMITH, J.

that if on remand Lee raises the issue at the resentencing hearing, the court exercise its 

informed discretion and consider whether to strike the section 12022.53, subdivision (d) 

enhancement on count 1 and instead impose a lesser enhancement under either

sections 12022.53 or 12022.5.