Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA290339, Craig E. Veals, 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, Senior Assistant Attorney General, Susan D. Martynec, and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Maria Gomez appeals from the judgment entered after her conviction by a jury on one count of first degree murder (Pen. Code, § 187, subd. (a)) and one count of poisoning (§ 347, subd. (a)). Gomez admits she killed Norberto Castro, but contends the jury instructions explaining “imperfect self-defense” -- a killing done in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury -- were inadequate. We affirm.
Statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Summary of the Evidence Presented at Trial
a. Gomez and Castro’s relationship before the murder; Gomez’s belief in witchcraft
Gomez met Castro, a street vendor who sold snow cones and ice cream, sometime in 2002 when she was 18 years old and he was 42 years old. According to Gomez, who testified on her own behalf at trial, Castro took her out to eat, paid attention to her and made her feel special. Although Gomez admitted she had worked as a prostitute and Castro had given her money (as much as $700), she claimed she and Castro were just friends, not lovers.
Gomez met Carla Mendez in June 2004. About six months later they began a romantic relationship. Mendez and Castro were jealous of each other, and Gomez fought with Mendez about her continuing friendship with Castro. Although Gomez was living with Mendez, when she and Mendez fought, Gomez would go to Castro’s apartment.
Gomez only wanted to be friends with Castro; however, he repeatedly asked her “to be his woman or his wife.” This imbalance in their feelings toward each other was exacerbated by Gomez’s deep belief in witchcraft. For example, although Castro asked Gomez for her photograph, Gomez refused to give him one because she thought he wanted to put a love spell on her. Nonetheless, Gomez discovered Castro had photographs of her, taken while she was asleep, in his apartment. Although Castro denied he had done anything when Gomez confronted him, she believed he was trying to cast a love spell to keep her close to him.
In her testimony at trial Gomez provided an extensive narrative of incidents in her life in which she or members of her family had experienced misfortune after a curse had been uttered. On several occasions in February 2005 Gomez sought the assistance of a woman, Estrella, who claimed to be a witch. Estrella read Gomez’s tarot cards and told her a 42-year-old man was putting a love spell on her so she would be next to him; if Gomez did not agree to be with the man, she would die in a car accident in approximately September 2005. Estrella performed cleansing rituals to take away the evil and told Gomez not to go back to Castro. Estrella also told Gomez the only way the spell could be removed was if Castro removed it or died.
Notwithstanding Estrella’s warning Gomez returned to Castro’s apartment, explaining she was inexplicably desperate to be with him, as though a magnet were pulling her to him. After a few days, however, Gomez left Castro and returned to living with Mendez. Gomez did not see Castro again until May 2005. Gomez had sexual intercourse with him, explaining she did not find Castro attractive but was pulled toward him by the spell. Thereafter, Castro repeatedly called Gomez, asking to have intercourse again and offering to pay her. Castro reacted angrily when Gomez refused him and told her she would never be happy with anyone and wherever she went she would always search for him.
One evening around the end of May 2005 Gomez’s car began to stall while she was driving on the freeway. As Gomez drove off the freeway at the first off-ramp, the car almost stopped and then began backing up. Because she could not control the car, Gomez opened the car door and threw herself out, sustaining minor injuries. Immediately after the incident, which caused Gomez to recall Estrella’s warning about a car accident, Castro called and, in a mocking tone, asked her how she was and said he was concerned about her well-being.
b. Castro’s murder
Gomez testified she decided to scare Castro on the evening of July 14, 2005 so he would stop subjecting her to witchcraft. She had planned to take him to the beach with Mendez and another friend, Sogui Godinez, and confront him there. After they arrived at the beach, Gomez poured poison, which she claimed she got from Godinez, into Castro’s beer while he was not looking. Gomez told Castro to leave her alone and to stop hurting her. As Castro became dizzy and drunk, he told Gomez he would get what he wanted through witchcraft and that Gomez would never be happy with anyone. Gomez was angry and scared.
The group left the beach. According to Gomez, while they were driving on the freeway, Castro began telling Gomez he was going to put a spell on her that would affect her and a young cousin Gomez considered like a daughter. Castro also suggested the group should rob someone on the street. After Gomez refused, Castro sarcastically asked if she was scared. Gomez testified she did feel scared Castro would continue to put spells on her that would also affect her “daughter.” Because of her fear and anger, Gomez hit Castro with her fists and a bottle, spit on him and told him he was evil. Gomez also testified she was ultimately trying to kill him because she wanted the spells to end.
When the group reached the Echo Park neighborhood of Los Angeles, Godinez parked the car. Castro was pushed from the car; Gomez and Mendez kicked him and then began running away. After Mendez turned and saw Castro was trying to get up, she and Gomez returned to Castro; Gomez told him to “stop doing what you are doing because this hex has already hurt me enough.” Castro looked at Gomez with a “demon-like look” and told her, “You are going to regret it.” Gomez and Mendez then each threw a rock at Castro before again running away. A Los Angeles County deputy medical examiner testified Castro died from multiple blunt-force injuries to the head and exposure, most likely oral ingestion, to some kind of petroleum product.
Mendez was charged with first degree murder and tried separately.
c. Expert testimony regarding belief in witchcraft
Patrick Polk, a folklorist who lectures at UCLA, testified for the defense regarding belief in witchcraft, particularly in Latin American countries. (Gomez was born in Mexico.) Polk testified love spells are very common in the Latino community in Los Angeles. Polk explained it is not typical the object of a love spell will be threatened with death or will respond to the spell by killing the person who cast it. After speaking with Gomez, Polk concluded she sincerely believed she was going to die and killing Castro was her only option.
3. The Jury Instructions
Consistent with Gomez’s contention she killed Castro because she feared imminent death or great bodily harm, defense counsel requested jury instructions on voluntary manslaughter, including imperfect self-defense. The People objected, contending there was insufficient evidence any harm Gomez may have feared was imminent or immediate, emphasizing Gomez had killed Castro in July 2005, but Estrella had predicted she would be killed in September 2005 if she did not fall in love with Castro. The court found there was sufficient evidence to warrant instruction on imperfect self-defense, including Gomez’s testimony she perceived Castro as an immediate threat and essentially thought the freeway incident in May 2005 might have been an acceleration of the timetable in Estrella’s warnings.
The trial court instructed the jury, in part, with a modified version of CALJIC No. 8.40, which included three sentences (identified below in italics) from Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 571, “Every person who unlawfully kills another human being without malice aforethought, but either with an intent to kill, or with conscious disregard for human life, is guilty of voluntary manslaughter in violation of Penal Code section 192, subdivision (a). [¶] 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. Belief in future harm is not sufficient no matter how great or how likely the harm is believed to be. In evaluating defendant’s beliefs, consider all the circumstances as they were known and appeared to the defendant. If you find that the defendant honestly believed that Norberto Castro had threatened or harmed others in the past, you may consider that information in evaluating defendant’s beliefs.”
The jury was also instructed with a portion of CALJIC No. 8.50: “The distinction between murder and manslaughter is that murder requires malice while manslaughter does not. To establish that a killing is murder and not manslaughter, the burden is on the people to prove beyond a reasonable doubt each of the elements of murder.”
4. The Jury’s Verdict and Sentencing
The jury found Gomez guilty of first degree murder and poisoning. The trial court sentenced her to an indeterminate state prison term of 25 years to life for first degree murder. The court stayed pursuant to section 654, subdivision (a), a five-year sentence (the upper term) for poisoning.
DISCUSSION
“Manslaughter, a lesser included offense of murder, is an unlawful killing without malice.” (People v. Cruz (2008) 44 Cal.4th 636, 664; § 192.) “[W]hen a defendant kills in the actual but unreasonable belief that he or she is in imminent danger of death or great bodily injury, the doctrine of ‘imperfect self-defense’ applies to reduce the killing from murder to voluntary manslaughter.” (Cruz, at p. 664.) The doctrine “is ‘narrow’ and will apply only when the defendant has an actual belief in the need for self-defense and only when the defendant fears immediate harm that ‘“‘must be instantly dealt with.’”’” (People v. Rogers (2006) 39 Cal.4th 826, 883). “Fear of future harm -- no matter how great the fear and no matter how great the likelihood of the harm -- will not suffice.” (In re Christian S. (1994) 7 Cal.4th 768, 783.)
The doctrine of imperfect self-defense is not actually an affirmative defense, but rather “‘a shorthand description’” of one type or theory of voluntary manslaughter. (People v. Rogers (2006) 39 Cal.4th 826, 883; People v. Cruz, supra, 44 Cal.4th at p. 664.)
Gomez contends the jury instructions on imperfect self-defense were inadequate and incomplete. Generally, a defendant who fails to object to a proposed jury instruction forfeits the right to challenge that instruction on appeal. (People v. Bolin (1998) 18 Cal.4th 297, 326 [waiver found when defense counsel agreed to giving of instruction and raised no objection]; People v. Stone (2008) 160 Cal.App.4th 323, 331 [defendant waived claim of instructional error by failing to object].) Gomez’s counsel broadly requested a “voluntary manslaughter instruction, the set of jury instructions that deal with that specifically regarding honest but [un]reasonable belief.” After having the opportunity to review the trial court’s proposed instructions, Gomez’s only objection was a nonspecific one to the modification to CALJIC No. 8.40 requested by the People. However, Gomez asserts the purported inadequacy of the instructions “affected the substantial rights of the defendant,” and, therefore, no objection was necessary to preserve the issue for appeal. (See § 1259.) We need not decide that question; for, even if the claim has been properly preserved, it lacks merit.
There are three CALJIC jury instructions that address imperfect self-defense. CALJIC No. 8.40, “Voluntary Manslaughter -- Defined,” given to the jury in modified form as discussed above; CALJIC No. 5.17, “Actual But Unreasonable Belief in Necessity to Defend -- Manslaughter,” which was not given to the jury; and CALJIC No. 8.50, “Murder and Manslaughter Distinguished,” a portion of which was read to the jury. Gomez contends the trial court should have instructed the jury with CALJIC No. 5.17, either in addition to or instead of CALJIC No. 8.40 as modified, because it makes clear imminent peril should be evaluated from the defendant’s subjective perspective, that is “‘imminent’ peril . . . must so appear at the time to the slayer,” not by utilizing a reasonable person standard. (CALJIC No. 5.17; see People v. Aris (1989) 215 Cal.App.3d 1178, 1188 [“the belief [the peril faced is imminent] need not be reasonable for imperfect self defense”], disapproved on other grounds in People v. Humphrey (1996) 13 Cal.4th 1073, 1089.)
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] [her] [unlawful] [or] [wrongful] conduct created the circumstances which legally justified [his] [her] adversary’s [use of force], [attack] [or] [pursuit].] [¶] [This principle applies equally to a person who kills in purported self-defense or purported defense of another person.]”
CALJIC No. 8.50 in full states (italicized portion was given to the jury), “The distinction between murder [other than felony-murder] and manslaughter is that murder [other than felony-murder] requires malice while manslaughter does not. [¶] When the act causing the death, though unlawful, is done [in the heat of passion or is excited by a sudden quarrel that amounts to adequate provocation,] [or] [in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury,] the offense is manslaughter. In that case, even if an intent to kill exists, the law is that malice, which is an essential element of murder, is absent. [¶] To establish that a killing is murder [other than felony-murder] and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done [in the heat of passion or upon a sudden quarrel] [or] [in the actual, even though unreasonable, belief in the necessity to defend against imminent peril to life or great bodily injury].
Although not as specific as CALJIC No. 5.17, as modified CALJIC No. 8.40 clearly instructed the jury in considering whether Gomez was guilty of murder or voluntary manslaughter to determine whether she, not a hypothetical, reasonable person, feared imminent danger. It is hard to imagine how else to interpret the language, taken from CALCRIM No. 571, “In evaluating defendant’s beliefs, consider all the circumstances as they were known and appeared to defendant.” This instruction directed the jury to look at the entirety of Gomez’s beliefs -- both the need to defend herself and the imminence of the peril -- from her own perspective. The additional explanation in CALJIC No. 5.17 that imminent peril “means one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer” would merely be duplicative.
Indeed, in People v. Cordero (1989) 216 Cal.App.3d 275 the Court of Appeal held the jury was sufficiently instructed on imperfect self-defense with only CALJIC Nos. 8.40 and 8.50, without the additional language from CALCRIM No. 571 given here. Thus, the trial court’s failure to instruct sua sponte with CALJIC No. 5.17, although further clarifying the doctrine, was not error. (Cordero, at p. 279.)
Gomez contends this case is distinguishable from Cordero because the trial court only instructed the jury with a truncated form of CALJIC No. 8.50, leaving out critical language that would have informed the jury an unreasonable belief in the need for self defense negates malice. CALJIC No. 8.40, however, clearly provided the purportedly omitted language: “Every person who unlawfully kills another human being without malice aforethought . . . is guilty of voluntary manslaughter . . . . [¶] 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.” (See People v. Bolin, supra, 18 Cal.4th at p. 328 [“‘It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. [Citations.] “[T]he fact that the necessary elements of a jury charge are to be found in two instructions rather than in one instruction does not, in itself, make the charge prejudicial.” [Citation.] “The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.”’”]; People v. Cain (1995) 10 Cal.4th 1, 36 [jury instructions reviewed as whole to determine if there is reasonable likelihood jury understood the instructions to permit conviction on improper basis].)
Similarly misplaced is Gomez’s contention the jury was not properly instructed it was the People’s burden to prove she did not believe she had to defend herself (that is, to prove the element of malice). Gomez’s argument is based on the trial court’s omission from CALJIC No. 8.50 of the italicized portion of the following sentence: “To establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the actual, even though unreasonable, belief in the necessity to defend against imminent peril to life or great bodily injury.” Taken as a whole, however, the instructions, which included CALJIC Nos. 2.90 (the prosecution has the burden of proving defendant guilty beyond a reasonable doubt), 8.10 (defining “murder” as requiring proof “the killing was done with malice aforethought” and 8.11 (defining “malice aforethought”), as well as modified 8.40 (“no malice aforethought if the killing occurred in the actual but unreasonable belief in the necessity to defend oneself against imminent peril to life”), adequately informed the jurors that it was the People’s burden to prove all of the elements of murder, including malice, and that murder does not include a killing done in the actual, even though unreasonable, belief in the necessity to defend against imminent peril. (See People v. Bolin, supra, 18 Cal.4th at p. 297; People v. Cain, supra, 10 Cal.4th at p. 36.)
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., JACKSON, J.