Is there a reasonable chance that an honest but unreasonable belief in self-defense should reduce felony murder to manslaughter?

Citing People v. Flannel (1979) 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1, appellant next contends that an honest but unreasonable belief in self-defense should reduce felony murder to manslaughter. This is incorrect. Flannel held that an honest but unreasonable belief in self-defense negates malice aforethought. (Id., at p. 674, 160 Cal.Rptr. 84, 603 P.2d 1.) In felony murder, on the other hand, malice aforethought is not required. (People v. Dillon, supra, 34 Cal.3d at pp. 472-477, 194 Cal.Rptr. 390, 668 P.2d 697.) The trial court properly limited its Flannel instruction to theories of murder other than felony murder.

Appellant contends that self-defense instructions should have been given since the trial court instructed on trespass as a lesser included offense [181 Cal.App.3d 171] of the burglary count. ⁵ He contends that based on his own testimony that he was not committing a burglary but only a misdemeanor trespass, and that therefore he had a right of self-defense. He cites People v. Hecker (1895) 109 Cal. 451, 464, 42 P. 307, for the proposition that a property owner has no right to use deadly force against a misdemeanor trespass, and that the trespasser may defend himself. This principle is not applicable,

Page 220