There's the old saying that you shouldn't bring a knife to a gunfight. But what about a fistfight? It's obvious you should bring your fists. But what about a gun? Just in case?
What about if it's definitely going to be a fistfight and maybe going to be a gunfight? What do you do about that?
It's tough to translate aphorisms into modern day legal advice. It's even tougher when the Court of Appeal has to figure out what the actual law is in this area. Or, worse, what the jury instructions in such cases should say.
Witness this opinion.
The majority and the dissent disagree about both what to do in situations like this one as well as what exactly transpired here. Was the jury properly instructed? Was it confused? Did the prosecutor mess things up by misstating the law during closing?
Everyone agrees that you can bring a gun to a fistfight as long as you don't use it. (Or at least that it's not murder, since no one's dead.) Everyone also agrees that you can't start a fistfight, while bringing a gun, hoping that the other side will then pull a gun and thereby enable you to shoot 'em.
But the majority here says that the relevant CALCRIM instructions here didn't accurately tell the jury (particularly in light of what the prosecutor said during closing) what to do if you elect to bring a gun to a fistfight that you start just in case -- but not hoping -- that the other side has a gun, and then you end up shooting the guy because you thought he had a gun. Self-defense? Imperfect self-defense? A straightforward case of murder, since you're the one who started the fight and brought the gun?
The safe bet, of course, is to leave the gun at home. Ditto for the fists, for that matter.
But we don't live in a perfect world.
Hence the need for opinions -- and the resulting disputes -- like this one.
