Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Los Angeles County Super. Ct. No. NA064766, Arthur H. Jean, Jr., Judge.
Landra E. Rosenthal, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell, and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
VOGEL, J.
Ladeldrick Collins was convicted of one count of second degree murder and sentenced to state prison for a term of 15 years to life. (Pen. Code, § 187, subd. (a).) Collins appeals, claiming there were instructional and evidentiary errors. We disagree and affirm the judgment.
FACTS
Collins and Leon Johnson (the victim) shared an apartment at various times between 2002 and the time of Johnson’s death in 2005. In 2003, Collins left California for about six months. While he was gone, Johnson (who had AIDS) suffered a stroke. Johnson asked Collins to move back into the apartment and care for him, and offered to pay Collins’s share of the rent and also to pay for his food and alcohol. Collins accepted the offer and moved back in. Johnson recovered to some extent but was mentally and physically impaired.
On February 22, 2005, Rufus Atkins and Anwar McKenney visited Collins in the apartment while Johnson was out. They watched television and played dominoes. At some point, McKenney noticed a hole in the bedroom door and asked about it. Collins explained that he had swung a golf club at Johnson’s dog in an effort to kill it but had missed and hit the door. When Johnson returned (bringing food and beer), Collins told him about the hole in the door. They argued, with Johnson complaining that he would have to pay to have the door fixed. Collins said he would pay for it but Johnson continued to complain. Johnson went into the kitchen.
Collins asked Johnson whether he could have a beer. Johnson said no, “You can’t have none of my fucking beer.” Collins nevertheless went into the kitchen and started to take a beer. Johnson slapped his arm, saying “I told you I am not sharing.” According to Atkins and McKenney, “all hell broke loose.” Collins hit Johnson in the face “so hard [that] it put him in a coma like,” and hit Johnson two more times, once in the face, one in the stomach. Johnson fell to the floor, lying on his back next to the stove. Collins said, “You should have given me a beer,” threw three beer bottles at Johnson, kicked him at least three times, and stomped on his head. Johnson was not moving or speaking.
McKenney pleaded with Collins to stop, but Collins said he was “just tired of this motherfucker, tired of him,” that he had “seven months’ worth of [anger] building up.” Atkins left (he was afraid), but McKenney stayed and tried to reason with Collins. Collins ignored him, got a golf club, and struck Johnson in the face with the club. McKenney left.
Neighbors who had heard the fight heard Collins walking around, Johnson moaning, and the sounds of cleaning (glass being swept, a vacuum cleaner). Collins went out, leaving Johnson on the floor of the apartment, moaning and crying for help. McKenney and his sister saw Collins on the street and picked him up. Collins told them he was so “mad” that Johnson was still moaning that he had hit him in the head with the golf club, thus “hav[ing] made for damn sure that he won’t get up and talk again.” McKenney and his sister took Collins to McKenney’s house, where Collins told McKenney that if he told the police what had happened he would “cut his throat” and “stab him twice.”
Johnson’s neighbors ultimately called the police who arrived to find Johnson dead. Collins was arrested and charged with Johnson’s murder. At trial, the People presented evidence of the facts summarized above, including testimony about the condition of the apartment when the police arrived, the nature of Johnson’s wounds, and McKenney’s testimony.
Collins testified in his own defense, explaining that he and Johnson had been lovers for many years, but their sexual relationship did not resume when Collins returned to live with Johnson in 2004. According to Collins, his previous relationships were with women and his friends (including McKenney) did not know about his sexual relationship with Johnson. Collins is HIV positive but claimed he did not ask Johnson if he had AIDS because “it never crossed [his] mind.” When Collins learned that Johnson had AIDS (about three months after Collins moved back in with Johnson), Collins started to drink.
With regard to the day of Johnson’s death, Collins testified that he damaged the bedroom door when the back of his chair slipped and crashed against it, that Johnson “slapped” his hand when he reached for a beer, which “shocked” Collins and “made [him] angry.” Collins admitted that he had hit and kicked Johnson and that he “lost it,” but said, “I don’t know what I was thinking.” Collins was about to leave when Johnson said to him, “That’s why I gave you AIDS, nigger.” Collins became so angry that he picked up the golf club and hit Leon with it more than 10 times. Collins claimed he was intoxicated at the time of the beating.
Collins was asked: “When . . . Johnson slapped your arm away and then you slapped him, punched him and stomped him, did you do those things because you believed you had to defend yourself?” Collins responded, “I really don’t know.” When asked whether he felt he was “in danger in any way,” Collins responded, “Yeah” but did not explain his answer.
In rebuttal, the People established that Collins had first told the police that he had no idea what had happened to Johnson, then confessed and told them about the beating -- and that it was in response to something Johnson had said, not to anything he had done. When asked by the police whether he was Johnson’s lover or boyfriend, Collins said no, that he was only his caretaker. The officers also testified that McKenney had told them that Collins admitted the beating to him and said he hoped Johnson was dead.
As noted at the outset, the jury convicted Collins of second degree murder.
DISCUSSION
I.
Collins contends the trial court gave incomplete and inadequate instructions on imperfect self-defense and should have sua sponte instructed the jury according to CALJIC No. 5.17. We disagree.
CALJIC No. 5.17 states: “A person who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully but does not harbor malice aforethought and is not guilty of murder. This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief. Such an actual but unreasonable belief is not a defense to the crime of voluntary or involuntary manslaughter. [¶] As used in this instruction, an ‘imminent’ peril or danger means one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer. [¶] However, this principle is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary’s [action]. . . .”
A.
The trial court’s sua sponte duty to instruct extends to the general legal principles closely and openly connected to the evidence, to the defenses relied on by the defendant that are supported by substantial evidence and not inconsistent with the defendant’s theory of the case, and to all lesser included offenses regardless of the defendant’s theories provided there is substantial evidence to support the jury’s finding that defendant was in fact guilty of the lesser offense. (People v. Flannel (1979) 25 Cal.3d 668, 680-681; People v. Wharton (1991) 53 Cal.3d 522, 570; People v. Wickersham (1982) 32 Cal.3d 307, 324-325; People v. Breverman (1998) 19 Cal.4th 142, 153, 159-162.) In the context of a murder charge, the trial court’s sua sponte duty to instruct on voluntary manslaughter arises only when there is substantial evidence that the defendant killed in unreasonable self-defense, not when the evidence is minimal and insubstantial. (People v. Barton (1995) 12 Cal.4th 186, 195, 200-201.)
B.
Collins’s defense was heat of passion, not imperfect self-defense. He claimed he was provoked by Johnson’s behavior and the slap. When asked whether he beat Johnson because he believed he had to defend himself, Collins said, “I really don’t know.” He never explained how he thought he might be in danger, and there is no evidence at all to suggest that Johnson posed a physical threat (real or imagined) to Collins.
The jury was nevertheless instructed according to CALJIC No. 5.12 (self-defense), No. 5.30 (self-defense by a person who is being assaulted), No. 5.50 (no duty to retreat), No. 5.50.1 (prior assaults by the victim), No. 5.51 (actual danger not necessary for self-defense), No. 5.52 (when danger ceases), 5.53 (no self-defense after adversary is disabled), No. 8.10 (murder), No. 8.11 (malice aforethought), No. 8.70 (degree of murder), No. 8.20 (deliberate and premeditated murder), No. 8.30 (unpremeditated second degree murder with express malice), No. 8.31 (second degree murder resulting from an unlawful act dangerous to life), No. 8.37 (manslaughter), No. 8.40 (voluntary manslaughter as the result of a sudden quarrel or in the actual but unreasonable belief in the necessity to defend oneself), No. 8.42 (heat of passion defined), No. 8.43 (cooling off period), No. 8.44 (no specific emotion regarding heat of passion), No. 8.45 (involuntary manslaughter as the result of an unlawful act), and all other required instructions.
The only difference between CALJIC No. 5.17 (which wasn’t given) and No. 8.40 (which was given) is that the former says there is no malice aforethought if there is an “actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury,” whereas the latter says there is no malice aforethought if the killing occurred “in the actual but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury.” The slight difference in wording does not change the fact that both instructions say essentially the same thing. If anything, the definition of “imminent” in CALJIC No. 5.17 would have hurt rather than helped Collins.
In any event, CALJIC No. 5.17 was not required on the evidence presented. Collins did not claim self-defense when he talked to the police or when he testified at trial, and there was no evidence from any other source to suggest that Collins believed, reasonably or otherwise, that Johnson posed a danger to him. The most that can be said is that Johnson slapped Collins on the arm when Collins took a beer after Johnson told him not to. All the other evidence shows that Collins “lost it” (his words) and inflicted a vicious beating on a helpless man, then tried to clean up the mess and deny all involvement. Under these circumstances, the trial court had no sua sponte duty to give CALJIC No. 5.17. (People v. Gadlin (2000) 78 Cal.App.4th 587, 593-594; People v. Aris (1989) 215 Cal.App.3d 1178, 1187-1188.)
II.
Collins contends trial counsel was ineffective because he failed to present expert testimony about “intimate partner battery” (formerly known as battered women’s syndrome). (Evid. Code, § 1107.) He claims an expert could have told the jury that his reactions were consistent with those of a battered intimate partner. We disagree.
Undesignated section references are to the Evidence Code.
A.
Section 1107 provides that expert testimony about intimate partner battering and its effect is admissible by either side except when offered by the People to prove the charged offense -- provided there is a sufficient foundation, which requires that “the proponent of the evidence establish[] its relevancy and the proper qualifications of the expert witness.” (§ 1107, subd. (b).) The decision whether to admit such evidence is within the trial court’s discretion. (§§ 210, 351, 352.) Typically, such evidence is offered to explain a battered victim’s recantation or to support a victim’s claim of self-defense when the victim is the defendant. (People v. Humphrey (1996) 13 Cal.4th 1073, 1078-1079; People v. Williams (2000) 78 Cal.App.4th 1118, 1128-1130.) Very little foundation is required when this sort of evidence is offered to explain the victim’s change of heart (People v. Brown (2004) 33 Cal.4th 892, 907 [a single incident of violence within a “cycle of violence” sufficient]); much more is required where the defendant claims he killed because he was battered (People v. Humphrey, supra, 13 Cal.4th at pp. 1082-1089 [one incident of battery is not enough]; People v. Aris, supra, 215 Cal.App.3d at pp. 1186-1195; People v. Williams, supra, 78 Cal.App.4th at p. 1130 [in this context, the defendant must show a “history of abuse”].)
B.
Collins’s contention that trial counsel was ineffective finds no support in the record because the issue of expert testimony was never presented to the trial court. As the Supreme Court explained in People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267, if the record on appeal sheds no light on why trial counsel acted or failed to act in the manner challenged, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim on appeal must be rejected. In short, a claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding.
On the record before us, there is no way to know whether the decision was tactical. Although there was some slight evidence that Johnson battered Collins, it was hardly credible given Johnson’s physical condition, and there is also the fact that the men were no longer intimate and had not been since Collins returned to live with Johnson following Johnson’s stroke. In any event, we cannot consider the issue on this record.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, Acting P.J., ROTHSCHILD, J.