Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Clarence Westra, Jr., Judge, Super. Ct. No. BF115300A
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Elizabeth Fernandez Torres was convicted of second degree murder for the stabbing death of Francisco Garcia. On appeal, she contends the trial court erred by refusing to instruct on unreasonable (imperfect) self-defense and precluding the defense from arguing the theory to the jury. We conclude the evidence was insufficient to justify instruction or argument on unreasonable self-defense. Accordingly, we affirm.
PROCEDURAL SUMMARY
On October 16, 2006, the Kern County District Attorney charged defendant with murder (Pen. Code, § 187, subd. (a)) committed with the personal use of a deadly weapon (§ 12022, subd. (b)(1)). The information further alleged defendant had a prior conviction for assault with a deadly weapon on a police officer (§ 245, subd. (c)), which qualified as a serious felony (§ 667, subd. (a)).
All statutory references are to the Penal Code unless otherwise noted.
The jury found defendant guilty of second degree murder and found true the personal use enhancement. The trial court found true the prior serious felony conviction allegation.
The trial court sentenced defendant to 36 years to life in prison, as follows: 15 years to life for second degree murder, doubled pursuant to section 667, subdivision (e), plus five years for the prior serious felony conviction and one year for the personal use enhancement.
FACTS
Defendant and her boyfriend, Augustine, lived together in an apartment in Bakersfield. They shared the apartment with Garcia. On July 4, 2006, they had a party at the apartment to celebrate the holiday. Defendant’s aunt, Maria, came to the party with her daughter, daughter-in-law and grandchildren. According to Maria, defendant was happy. She was eating, cooking and drinking beer. She already seemed intoxicated. Her eyes were reddish and her speech was not very clear. Earlier that day, at about 2:00 p.m., when defendant stopped by Maria’s house, Maria could already smell alcohol on defendant’s breath, but defendant seemed fine otherwise. Maria estimated that during the course of the evening, four of them -- defendant, Augustine, Garcia and Maria -- together drank 80 to 100 beers.
At the party, Maria spent most of the evening outside. As they were preparing to leave, they went inside. Defendant told Augustine to put the ice chest in Maria’s car or take it to her house. Augustine would not take the ice chest to the car and defendant started arguing with him and became very upset. Until that time, defendant had seemed happy and had not argued with or shown anger toward anyone. Augustine told her to be calm and he held her hands, but she pushed him. Garcia had nothing to do with this argument. Maria thought the argument was unnecessary because it was over an ice chest. She told defendant she was overreacting. Maria told defendant not to come to her house anymore and she left. It was about midnight.
Some translated testimony refers to the ice chest as a refrigerator.
Maria did not remember certain facts at trial, but the detective testified that the day before trial, he met with Maria to go over her original statement to the police. He read the police report to her in Spanish. She confirmed she told the police that defendant became very upset about the argument over the ice chest, that defendant started the argument and pushed Augustine first, that Maria told defendant she was overreacting and the argument was unnecessary, and that Maria left the apartment before or around midnight.
When Maria got home, she went straight to sleep because she had had too much to drink. While she was asleep, Augustine brought defendant’s three-year-old daughter to the house and left her there. Later, Maria awoke when she heard desperate knocking on the door. Then she heard voices. She heard Augustine speaking loudly and with desperation. Maria came out of her room. Augustine was moving around in the front yard, saying he wanted to call an ambulance for Garcia. Maria’s daughter called 911.
Deputy Chandler responded to Maria’s house at about 1:30 a.m. Augustine flagged the officer down in the middle of the road, got into his vehicle and directed the officer to his apartment. Another deputy arrived in a separate vehicle. Inside the apartment, the officers found Garcia on the kitchen floor. His breathing was labored and he was sweating profusely. Blood was coming out of his mouth. He was not wearing a shirt and he had a stab wound and a bite mark. There was a small kitchen knife lying on the carpet in front of the entertainment center. The officers administered aid to Garcia until the ambulance arrived.
Officer Hock was dispatched to the scene at about 1:40 a.m. He arrived as the ambulance personnel were wheeling Garcia out of the apartment on a gurney. The officer observed the knife on the floor, then noticed blood on the wall in the hallway. He also found a broken watch in the hallway.
Garcia died of the stab wound, which had pierced his heart.
At about 2:00 or 2:30 a.m., defendant called her friend, Veronica, and asked her to pick her up at Wal-Mart because she had done something grave. When Veronica and her husband picked up defendant, she was wearing a grey T-shirt and jeans, and she smelled strongly of alcohol. She did not explain what had happened. They took her to their house and she fell asleep on the sofa. In the morning, she showered, took a pair of Veronica’s shorts, and left before Veronica and her husband got up.
Detective Caldas arranged a pretext telephone call between Augustine and defendant at about 7:30 a.m. The detective told Augustine the police needed to arrest defendant and asked if he would help them contact her. The detective did not inform Augustine that Garcia had died. Augustine agreed to cooperate and gave the detective defendant’s cell phone number. When Augustine called defendant from the police station, the detective could hear both sides of the conversation. Defendant answered the phone and Augustine asked her where she was. She told him her location and asked about Garcia. Augustine told her Garcia was in the hospital.
The detective drove Augustine’s car while Augustine rode in the passenger seat and made more calls to defendant. As they reached a particular location, Augustine pointed out defendant. She was wearing a grey tank top, standing next to a bus stop. Two detectives in an unmarked car approached her and took her into custody. She did not attempt to resist or run away.
The detective first contacted defendant in the police station at about 8:30 or 8:45 a.m. She did not appear to be intoxicated, nor did she smell of alcohol. She had some bruising on both wrists and on her upper right arm, but she had no other injuries. There was blood on the right side of her T-shirt.
When the detective interviewed defendant at 9:10 a.m., she still did not appear to be intoxicated or smell of alcohol. She explained that Augustine was her boyfriend and she lived with him in an apartment. She said they also lived with Garcia. She could not, however, remember where they lived. She said she drank four beers the previous night.
She said she got into an argument with Augustine over an ice chest. She wanted him to take the ice chest out to the truck, but he did not want to do so. The argument became physical when she pushed Augustine. Garcia told her to calm down and grabbed her wrists; he did nothing else to her. She told Garcia the argument was between her and Augustine and he should stay out of it.
Augustine decided to take defendant’s daughter away from the apartment so she would not witness the argument he and defendant were having. When he left with the girl, defendant and Garcia were alone in the apartment. As Augustine was leaving, Garcia grabbed defendant’s wrists and repeatedly told her to calm down. She kept telling him to let her go, but he continued to hold her. When she bit him on the shoulder, he pushed her into the kitchen and told her to calm down. When he released her wrists, he told her, “[I]f you want to make problems, there’s the knife[;] if you want to make matters worse, there’s the knife.” Defendant picked up the knife and stabbed Garcia in the chest. He never hit her or touched her inappropriately and he was not holding or touching her when she stabbed him.
When the detective asked defendant to clarify whether she was saying that she stabbed Garcia because he wanted her to, she explained that if she had really wanted to stab him, she would have stabbed him more than once. Specifically, she said, “If it was me who wanted to do it, I would have stabbed him a bunch of times at the same time. But when I stabbed him I saw he was not okay because I did what he wanted me to do.” During the interview, defendant agreed that what she had done to Garcia was wrong, but she stated two or three times that she stabbed him because he told her to.
Defendant said the struggle with Garcia lasted about 30 minutes; Augustine was gone the entire time. Defendant believed Garcia tried to calm her partly because he thought she was going to hit someone or go after Augustine.
After defendant stabbed Garcia, she dropped the knife and walked outside. When Augustine returned, she told him she had stabbed Garcia. Augustine went into the apartment but defendant stayed outside. Augustine came back out and told her he was going to leave to call an ambulance. After he left, she walked to a nearby Wal-Mart and called a friend, who came and picked her up. At the friend’s house, defendant went to sleep. Before she left, she changed her pants.
During the interview, defendant asked the detective whether Garcia had made a statement. Defendant’s demeanor during the interview was detached and matter-of-fact. She showed no emotion. About halfway through the interview, she asked if Garcia was okay. At the end of the interview, the detective revealed that Garcia had died. In response, defendant asked what was going to happen to her and would she go to jail for a long time.
After the interview, the detective went to Veronica’s apartment. He seized the jeans defendant had left in the bathtub. There was no blood on the pants.
The forensic pathologist performed Garcia’s autopsy that day. Garcia had a bite mark on his right shoulder. The mark indicated that the biter had also pulled or sucked on the skin. Garcia had a penetrating stab wound to the left chest, which pierced the right ventricle of his heart. The stab wound also nicked some other internal regions. The knife had entered his body from a left-to-right downward orientation. The chest cavity contained blood from the injury to the heart. On Garcia’s upper left abdomen just above the belly button was an irregularly shaped wound that also appeared to be a bite mark, but the skin was torn away and missing entirely, exposing the tissue below. Garcia had small abrasions on the back of the middle and ring fingers of his right hand, and on his left wrist. All the wounds were fresh and recent. The pathologist determined Garcia had died from the stab wound.
The parties stipulated that Augustine was subpoenaed but he failed to appear for trial, and that defendant did not encourage him not to appear.
DISCUSSION
Defendant contends the trial court erred by refusing to instruct on unreasonable self-defense as an alternate basis for voluntary manslaughter, by refusing to instruct on the lesser included offense of involuntary manslaughter based on unreasonable self-defense, and by refusing to allow her to argue the unreasonable self-defense theory to the jury. Defendant argues sufficient evidence was presented in the prosecution’s case to justify instructions and argument on unreasonable self-defense. Specifically, she points to the evidence of her intoxication to support the theory that she overestimated the threat posed by Garcia’s behavior and stabbed him because she was uncertain whether Garcia would approach her again or attack her after he released her. She argues she “struck first to avoid further, and potentially more violent contact with Garcia.”
Imperfect self-defense is the actual belief of “‘imminent peril that negates malice in a case of complete self-defense; the reasonableness of the belief simply goes to the justification for the killing.’ [Citation.] … ‘An [actual] but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury negates malice aforethought, the mental element necessary for murder, so that the chargeable offense is reduced to manslaughter.’ [Citation.]” (In re Christian S. (1994) 7 Cal.4th 768, 773; People v. Manriquez (2005) 37 Cal.4th 547, 581.)
The court stated it preferred an “actual” belief rather than an “honest” belief. (In re Christian S., supra, 7 Cal.4th at p. 773.)
The Supreme Court has stressed that the doctrine of imperfect self-defense is a narrow one. “It requires without exception that the defendant must have had an actual belief in the need for self-defense.” (In re Christian S., supra, 7 Cal.4th at p. 783.) Furthermore, “[f]ear of future harm -- no matter how great the fear and no matter how great the likelihood of the harm -- will not suffice. The defendant’s fear must be of imminent danger to life or great bodily injury. ‘“[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with.” ... [¶] This definition of imminence reflects the great value our society places on human life.’ [Citation.] Put simply, the trier of fact must find an actual fear of an imminent harm. Without this finding, imperfect self-defense is no defense.” (Ibid.) The court also emphasized “that whether the defendant actually held the required belief is to be determined by the trier of fact based on all the relevant facts. It is not required to accept the defendant’s bare assertion of such a fear…. Finally, [the Court reiterated] that, just as with perfect self-defense or any defense, ‘[a] trial court need give a requested instruction concerning a defense only if there is substantial evidence to support the defense.’ [Citation.]” (Ibid.; People v. Roldan (2005) 35 Cal.4th 646, 715 [trial court has the authority to refuse requested instructions on a defense theory for which there is no supporting evidence]; see People v. Haley (2004) 34 Cal.4th 283, 312 [trial court need not instruct as to all lesser included offenses, just those that find substantial support in the evidence].)
After the close of evidence in this case, the trial court held a discussion with counsel on jury instructions, during which defense counsel requested an instruction on involuntary manslaughter (CALJIC No. 8.45). Defense counsel stated he was basing his request on People v. Blakeley (2000) 23 Cal.4th 82, and he explained that Blakeley “held it was error to fail to instruct that an unintentional killing in unreasonable self-defense was involuntary manslaughter if the facts warranted and the defendant requested such an instruction.” In response, the court explained that the present case provided no basis for giving a self-defense instruction. The following discussion took place:
“THE COURT: In the case we’re dealing with here there certainly is no direct evidence as to exactly what happened, but what you’re dealing with is what evidence we have is proffered to show that there was this event in which [defendant] was upset about being restrained by [Garcia], that your client bit him and he then released her and suggested to her in some, for some reason or in some way if she wanted to do [a] better job, she could get the knife and finish the job or do the job better, and the gap then is exactly what happened at that point, other than what she expressed or told the officers that’s what she did, she got the knife and used it. No, no evidence that at the point in time the knife was used that there was any other physical activity going on. That is what I’m suggesting is there’s no basis to give a self-defense instruction.
“[DEFENSE COUNSEL]: He, he was continuing to hold her after he was bitten. The evidence was that we don’t know how long afterwards, but it wasn’t that she bit him then he let go of her. She bit him and he dragged her at some point, we don’t know that point, into the kitchen.
“THE COURT: Right.
“[DEFENSE COUNSEL]: That could have been seconds later, it could have been several minutes later. And she said he was holding me up to half an hour. Then after he takes her into the kitchen, holding her up to half an hour, at that point he says, [‘]if you want to make it worse, there’s the knife.[’]
“THE COURT: And he releases her or pushes her toward the counter.
“[DEFENSE COUNSEL]: Yes.
“THE COURT: And then it would appear to be the evidence simultaneously releasing and pushing her he said[, ‘]there’s the knife if you want to make it better[’] or [‘]do it better[’] or something like that.
“[DEFENSE COUNSEL]: Right. Now but if I can convince the jurors that at that point her picking up the knife and stabbing him one time, if I can convince the jurors that at that point she did not intend to kill and that she [did] not act with conscious disregard for his life, then aren’t I entitled to a verdict of involuntary manslaughter?
“THE COURT: Well, that’s why I say I was going back on the assumption that Blakeley required a self-defense basis for the giving -- evidence that gives the basis for self-defense instruction. And if the jurors determine there’s actual but unreasonable self-defense argument, then it might be appropriate to give that instruction.”
At that point, the trial court recessed to reread Blakeley. The court thereafter explained that it believed Blakely required a self-defense instruction only when there was evidence reasonably susceptible of pointing toward the assertion of self-defense. The following occurred:
“[DEFENSE COUNSEL]: And unless I raise the issue of self-defense, it is your position that I’m not entitled to an involuntary manslaughter instruction?
“THE COURT: Given the state of the evidence as it exists. You know, that’s the way I’m formulating it at this point.
“[DEFENSE COUNSEL]: Okay. Well, then I have nothing else to add, Your Honor, and the Court has read the case, the Supreme Court case. Let me just object to the Court not allowing me to put the involuntary [manslaughter] into the instructions before the jurors. I’d like to object on 4th, 5th, 6th, 8th, and 14th Amendments of the U.S. Constitution and under the California Constitution that will deny my client a fair trial and due process.
“THE COURT: Okay. All right. That is reflected in the record. I certainly will read [Blakeley] again. That is the way it seems to set up in terms of what that case is addressing. Certainly it doesn’t mean it is the final word. And you seem to have perhaps raised a slightly different issue here. What you’re suggesting perhaps would be a basis for allowing you to argue what you’re talking about, but I don’t believe it is appropriate to allow you to argue that without the, the foundational aspect of the case having some reasons [for] self-defense instructions.
“[DEFENSE COUNSEL]: I just want to say for tactical reasons I believe it would hurt [defendant] to raise the issue of self-defense because then it would allow in the 1101 B evidence [of defendant’s prior stabbing of a police officer], and it’s for that reason that I’m not raising the issue of self-defense.
“THE COURT: And 1101 B slash 1103.
“[DEFENSE COUNSEL]: Yeah, 1103, and we’ve been calling that the Gilroy incident. I believe that would actually result in a, sum total that would put [the defense] in the worse position than we would be in by having that involuntary manslaughter instruction.
“THE COURT: All right. I think the record reflects, you know, what your position is then, and at this point unless in reevaluating it or reading it tomorrow I have a different perspective, it is not my intention to give 8[.]45 as proffered by the defense counsel.”
Based on our review of the entire record, we agree with the trial court’s assessment of the evidence. As previously stated, unreasonable self-defense required evidence that defendant actually, but unreasonably, believed she was in imminent danger of death or great bodily harm and therefore felt the need to defend herself from Garcia. The evidence, however, established that Garcia held defendant’s wrists for 30 minutes and repeatedly told her to calm down. By defendant’s own admission, Garcia did nothing else to her. Indeed, defendant admitted she believed Garcia tried to calm her because he feared she would hit someone or go after Augustine. There was simply no evidence that defendant was afraid Garcia would cause her further harm. Defendant argues her intoxication might have caused her to overestimate the seriousness of Garcia’s conduct such that she felt the need to defend herself. But this scenario is based on speculation rather than evidence, and it nevertheless fails to show that she actually thought Garcia was about to kill her or inflict great bodily harm upon her and therefore she should defend herself. Accordingly, we agree with the trial court that the evidence presented by the prosecution was not sufficient to justify instruction on unreasonable self-defense.
Defendant’s argument regarding People v. Cameron (1994) 30 Cal.App.4th 591 does not convince us otherwise. We disagree with defendant’s assessment that the facts of that case are less compelling than the facts of the present case. (See id. at pp. 594-598, 602.)
We also reject defendant’s claim that the trial court suggested the defense was required to present evidence to justify instruction in general. Instead, the court simply stated the correct and obvious -- that there was no evidence of unreasonable self-defense presented in the prosecution’s case, and thus instruction on unreasonable self-defense would not be justified unless the defense offered sufficient evidence to support it. Defendant might have offered such evidence had she testified, but defense counsel made the tactical decision not to put defendant on the stand so the prosecution could not present evidence of a prior act by defendant.
In sum, the trial court had no duty to give instructions that were not supported by substantial evidence. Accordingly, given the state of the evidence, the court did not err by refusing to instruct on unreasonable self-defense. For the same reasons, we reject defendant’s contention that she was incorrectly prevented from arguing the unreasonable self-defense theory to the jury. (See People v. Ponce (1996) 44 Cal.App.4th 1380, 1386, 1388-1389defendant’s right to presentargument in her defense depends on the same factors that give rise to the trial court’s duty to instruct the jury on the defense theory of the case; both depend on the existence of any substantial evidence to support the defense].) The court properly precluded argument on this theory.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Gomes, J.