Monday, June 22, 2026
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Court of Appeal:
Answering Jury by Way of Instructions Upends Murder Case
Opinion Says Judge Violated Duty to Clear Up Panel’s Confusion About Imperfect Self-Defense by Pointing to CALCRIM Advisements Where Inquiry Concerned How to Harmonize Seemingly Conflicting Directions
By Kimber Cooley, associate editor
Div. Two of the First District Court of Appeal has reversed a defendant’s second-degree murder conviction relating to a stabbing on a Bay Area public train due to the trial judge answering a question from jurors about the reach of imperfect self-defense by simply pointing the panel to applicable form jury instructions.
Saying that the response was inadequate because a confusion over the interplay between multiple advisements was at the heart of the panel’s question, the court opined that the judge failed to meet her obligation to clarify the law by failing to respond with an unequivocal “yes” to a simple legal query.
Acting Presiding Justice James Richman authored Wednesday’s opinion, joined in by Justice Marla J. Miller and Justice Tara M. Desautels. Richman acknowledged “the dangers trial courts face in deviating from the standard instructions” but commented:
“[T]he trial court’s obligation is not to provide an answer beyond reproach from legal scholars or appellate court judges. Quite simply, the instructions are not worth the paper they’re printed on if the jury fails to understand them. And what more ‘simple and direct’ answer could there have been to the jury’s question than the one no party here disputes was also correct: ‘Yes’?...This, we conclude, was what was required….”
Shoeless Confrontation
Appealing his conviction was Jermaine Brim, who boarded a Bay Area Rapid Transit train in San Leandro on November 19, 2019. He was barefoot and purportedly pulled off another rider’s shoe, leading a third passenger, Oliver Williams, to confront him.
During the ensuing scuffle, Williams pulled a knife and tried to stab Brim in the leg before dropping the weapon, which Brim picked up and used to repeatedly stab Williams in the head, causing his death a short time later.
During Brim’s 2023 murder trial, a jury was instructed on imperfect self-defense, which would reduce the murder charge to voluntary manslaughter, by way of the Judicial Council of California Criminal Jury Instruction (“CALCRIM”) 571, which provides that the principle applies if the defendant actually, but unreasonably, “believed that he was in imminent danger” of death or great bodily injury. The jury was also instructed on actual self-defense and given the associated CALCRIM 3474 advisement, which specifies that “[t]he right to use force in self-defense continues only as long as the danger exists or reasonably appears to exist” and “the right to use force ends” when an aggressor “no longer appears capable of inflicting any injury.”
Three Questions
On the fourth day of deliberations, the panel asked three questions regarding the differences between second-degree murder and voluntary manslaughter. In their final query that day, they inquired:
“If the right to self-defense ends as stated on 3474 when the danger no longer exists, can Voluntary Manslaughter-Imperfect Self-Defense theory continue past that point?”
In response, Alameda Superior Court Judge Jennifer Madden told the jury to “refer to instruction 571.” After the panel returned a guilty verdict as to the second-degree murder charge, Brim’s attorney said she “had some things” she wanted to put on the record regarding the jury questions.
Specifically, she wanted the record to reflect that she had objected to the court’s reply and had “wanted the Court to say [‘yes’]…to the question.” On April 2, 2024, Madden sentenced Brim to 15 years to life in prison.
Defense Limitation
Richman noted:
“Brim argues that because CALCRIM No. 3474 tells jurors that a defendant’s ‘right to use force in self-defense’ ends when the danger no longer ‘reasonably appears to exist,’ it is unclear—and the instruction itself does not explain—that this limitation applies only to perfect self-defense, but not to imperfect self-defense. He argues that the trial court erred when it ‘refused to give a simple and straightforward answer’…to the jury’s question….”
Agreeing with the defendant, the jurist pointed to Penal Code §1138, which specifies that, “if [the jury] desire[s] to be informed on any point of law arising in the case,” the court must provide “the information required” in the presence of the defense attorney and prosecutor.
Saying that, “although the trial court need not always elaborate on the standard instructions, section 1138 ‘imposes a…duty to clear up any instructional confusion expressed by the jury,’ ” he opined:
“The jury’s apparent confusion was somewhat understandable. Although the instructions elsewhere referred to ‘complete,’ ‘lawful,’ and ‘imperfect’ self-defense, CALCRIM No. 3474…referred only to the right to ‘self-defense.’…And if the jury misunderstood…CALCRIM No. 3474 to encompass both perfect and imperfect self-defense, there was a direct contradiction between the objective standard there described…and the subjective standard of CALCRIM No. 571.”
Adding that the “point” is not merely “academic,” he added:
“Given that the jury’s question was about how to harmonize two seemingly conflicting instructions, simply directing the jury to refer back to one of those instructions failed to fulfill the trial court’s obligation under section 1138 to clear up the jury’s instructional confusion.”
Recognizing that “the trial court here did a thoughtful and conscientious job with what was indisputably a lengthy and difficult trial…and jury deliberations,” he said:
“But compared to ‘stray[ing] from the language of form instructions …[i]t is hardly preferable for a judge to merely repeat for a jury the text of an instruction it has already indicated it doesn’t understand.’…Instead, the trial judge should ‘thoughtfully consider[] the jury’s inquiry, clarif[y] it if necessary, stud[y] the applicable legal principles, and respond[] to the jury in as simple and direct a manner as possible.’ ”
Finding the error to be prejudicial, he declared:
“Brim’s conviction for second degree murder is reversed. The People shall have 60 days from issuance of the remittitur to determine whether to retry Brim for murder. Should the People elect not to do so, the judgment shall be modified to reflect Brim’s conviction for voluntary manslaughter instead of second degree murder, and the judgment as modified is affirmed.”
The case is People v. Brim, 2026 S.O.S. 1753.
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