dissenting:
I respectfully dissent.
This case presents the question of whether in a second degree murder and manslaughter case involving a claim of self defense the trial court properly determined that defendant did not have a right to a separate instruction on the concepts of apparent necessity and the right to be wrong (apparent necessity instruction). For almost 80 years, since Young v. People, 47 Colo. 352, 107 P. 274 (1910), a separate apparent necessity instruction has been available to defendants in such cases and I am unconvinced that such an instruction was not mandated here.
The defendant testified that she and the decedent had lived together for approximately six months prior to the shooting. Defendant testified that during this time she had been repeatedly beaten, threatened, humiliated, and intimidated by the decedent. On the evening the decedent was shot by defendant, the latter claimed that the decedent: (a) was severely intoxicated; (b) repeatedly told defendant that he would kill her and that one of them would not be alive in the morning; (c) injured and assaulted her; and (d) used one of his recently acquired guns to terrorize her.
Defendant’s self-defense claim was buttressed by a psychologist with expertise on the battered women syndrome. The psychologist testified to various aspects of this syndrome including learned helplessness, constant physical beatings, ongoing threats of injury and death, repeated sexual abuse, and the proclivity of the man to follow the woman and to not let her leave him.
The majority’s opinion rests largely on the view that the language in the present self-defense statute now encompasses the defense of apparent necessity and that, therefore, a separate instruction on apparent necessity need not be given. The majority concurs that the present self-defense statute instruction, based upon the amended statute, differs from earlier self-defense statutes and instructions and that difference justifies the trial court’s decision not to give an apparent necessity instruction. I disagree with this analysis for several reasons. Enactment of a new statute regarding general subject matter does not preclude reliance by the court upon the common law for appropriate jury instructions. People v. Berry, 703 P.2d 613 (Colo.App.1985). The language of the instructions given by the trial courts in Young v. People, supra; People v. Tapia, 183 Colo. 141, 515 P.2d 453 (1973); and People v. Duran, 40 Colo.App. 302, 577 P.2d 307 (1978) covered, as here, the defendant’s right to use deadly force when he reasonably perceives a threat of injury or death. In those cases, despite such instructions, the reviewing courts held it was reversible error not also to give an apparent necessity instruction. Here, the instruction that was given was comparable to those found inadequate in earlier cases. Therefore, the reason for an apparent necessity instruction is no less demanding under the present statute and instruction as under Young v. People and its progeny. See also People v. Berry, supra.
Furthermore, the reasonable belief instruction given here leaves to arguments of counsel, and thus to chance, whether a jury will accept and follow the idea of apparent necessity and the right to be wrong. Arguments of counsel are neither evidence nor the law of the case. To place counsel in the position of arguing the extent and legal meaning of the self-defense statute invites unnecessary confusion and objections. See People v. Berry, supra (Tursi, J., dissenting)-
The majority accepts the vitality and importance of apparent necessity and the right to be wrong as an ongoing critical aspect of self-defense. Their reason for upholding the trial court’s denial of the instruction is that it is covered by the instruction based upon the present self-defense statute.
Since Young v. People, it has been the law that a separate instruction based on the twin concepts of apparent necessity and the right to be wrong is a critical, even a constitutional, part of self-defense. The apparent necessity instruction was not considered to overemphasize aspects of the self-defense instruction, and it helped in*834sure that the jury followed the concepts of apparent necessity and the right to be wrong in reaching its decision. The Young court recognized the danger to the defendant’s right of self-defense if a jury required a defendant to determine correctly the actual necessity of using deadly force.
A battered woman syndrome case presents a factual setting in which an apparent necessity instruction is appropriate. Women who have been subject to the battering, domination, and control of men may have an altered perception and evaluation of the immediate situation and could, on the surface, appear to overreact to the last and precipitating incident. The apparent necessity instruction helps insure that the jury considers a woman’s prior experiences of helplessness, terror, beatings, and threats which may have caused a heightened response at the time of the incident.
Therefore, I agree with the statement by this court in People v. Duran, supra, that if:
“the evidence raises the question of self-defense, instructions on apparent necessity and acting on appearances as outlined in Young v. People and People v. Tapia, supra, should be given. The trial court’s failure to do so constitutes reversible error.”