In what circumstances will a defendant waive the right to defend himself with a knife?

California, United States of America


The following excerpt is from People v. Lew, A149775 (Cal. App. 2018):

sound strategic motive.' [Citation.] Moreover, even if an omission is inadvertent, relief is not automatic. The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight." (Yarborough v. Gentry, supra, 540 U.S. at p. 8.)

Defendant also contends trial counsel raised a "patently invalid legal theory" when he first commented if someone uses deadly force against you by shooting a gun, you can use deadly force to defend yourself, and then analogized that to if someone throws a knife, you can pick up the knife and defend yourself with it. Defendant asserts this argument reduced counsel's credibility because he was relying on a misstatement of the law. Defendant cites no authority to support his proposition. (People v. Stanley (1995) 10 Cal.4th 764, 793 [when a defendant fails to support an argument with citations to authority, we may treat it as waived].) Even considering the merits, counsel's closing, as a whole, was within the correct legal framework. As part of his summation, trial counsel read the jury the instruction on self-defense and proceeded to discuss each element. When he reached the third elementwhether defendant used no more force than was necessaryhe described how Matthew barged into the house, pulled and opened a knife, and threw it at defendant. Trial counsel argued an individual has the right to defend himself with a deadly weapon if that deadly weapon was used against him, and analogized that proposition to the current situation where "[a]n individual throws a knife at [defendant]. He picks up the knife, and he defends himself with the same knife." Counsel then presented the following argument: "And I submit to you, [defendant] acted reasonably by picking up that knife, because [Matthew] did not deescalate. He grabbed a bat. He grabbed an umbrella, and he sucker punched him, furthe[r] escalating the incident. [] It goes along the line of what I just said. . . . [Y]ou don't have to wait for you to be injured by this weapon, because if you wait, you might be dead." In the context of counsel's larger argument, we do not believe defendant has established this analogy reduced counsel's credibility or otherwise undermined his summation.

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