Opinion
G030839.
7-1-2003
THE PEOPLE, Plaintiff and Respondent, v. PENNY DEBORAH GREER, Defendant and Appellant.
Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robert M. Foster and Susan E. Milller, Deputy Attorneys General, for Plaintiff and Respondent.
Penny Deborah Greer was convicted of second degree murder for killing her husband. On appeal, she contends the courts refusal to instruct the jury that unreasonable self-defense mitigates a homicide to manslaughter was reversible error. We disagree, and affirm.
I
In 1998, Greer, then 45, married Engelerdt, then 32, setting off a tumultuous relationship marred by verbal and physical confrontations. Early in the marriage, Engelerdt struck Greer in the eye and also shoved an ottoman that hit her foot, knocking her down. Following this incident, Engelerdt was arrested and convicted of domestic violence, and Greer obtained a restraining order against him. Later, Engelerdt was arrested for violating the restraining order, after a tussle over Greers purse left her fingers swollen and bruised.
In other violent episodes, Greer was the aggressor. A former roommate described one incident in which Greer was angry with Engelerdt, and she appeared to purposefully bump into his injured foot and later pushed him in the ribs. One of Greers former coworkers testified that Greer boasted she once hit Engelerdt in the face with a frying pan.
Many of the couples problems stemmed from Engelerdts alcoholic tendencies. Martha Navarro, Greers friend, testified that Engelerdts drinking often led him to use offensive language toward Greer and on occasion exert physical force against her. Moreover, Engelerdts drinking interfered with his ability to work and imposed a financial strain on the marriage. Throughout much of the couples marriage, only Greer held a steady job, and she had to take out numerous advances. Timothy Ott, the couples roommate, recalled on multiple occasions coming home in the middle of the day and seeing Engelerdt sitting on the couch drinking a 12-pack of beer.
The strain of the relationship was taxing on Greer. Katia Davis, the mother of Englerdts son, recalled Greer saying that "if a man ever pissed her off again, she could kill him and she knew how." Soon thereafter, Greer went to Texas for about six weeks to be with her daughter. During this time, she sent Engelerdt a letter that stated, "We can get smart or stay like we are. I plan to keep climbing that ladder. I hope we want to do it together."
Within a few days of returning home, Greers problems with Engelerdt resumed. On December 23, 2000, Greer was drinking a vodka and orange juice beverage, and an argument ensued in which Ott heard Greer say to Engelerdt, "You can drink, but I cant." Ott brought out a vodka and orange juice beverage for Engelerdt in an apparent effort to diffuse the situation, but after Ott returned to his bedroom, the confrontation turned physical. Navarro testified that Greer told her about the incident. She said that Engelerdt, who is more than a foot taller than his wife, grabbed her and pushed her against the wall. Greers mug was broken, and an orange-colored liquid spilled on her shirt and on the floor.
The confrontation escalated to the point where Ott heard two loud thuds followed by Engelerdt saying, "Oh no, oh God." Ott then entered the living room and found Engelerdt lying face down on the floor. Greer told him that Engelerdt had been drinking and passed out. She opened up a backpack full of unopened beers and spilled the beers all over the floor. At that point, Ott noticed blood on Engelerdts hand. When Greer turned Engelerdt over, revealing a bleeding puncture wound on the right side of his chest, Ott dialed 911. Greer and Ott began administering CPR to Engelerdt. The paramedics soon arrived and had to forcibly remove Greer from Engelerdt after she refused to stop giving CPR. Engelerdt died a short while later due to the bleeding caused by the puncture wound.
The follow-up investigation revealed several facts about the parties and weapon involved in the killing. Blood drawn from Greer showed traces of alcohol, and blood taken postmortem from Engelerdt registered a blood-alcohol level of 0.16 percent. Both parties had bruises—Greer to her right arm, and Engelerdt to his shoulder, wrist, and finger. Of the 21 knives seized from the apartment, four could have inflicted Engelerdts wound, but none of the knives bore any trace of blood.
II
Imperfect self-defense is available to an actor who holds an actual but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury. (In Re Christian S. (1994) 7 Cal.4th 768, 773, 783, 872 P.2d 574; CALJIC No. 5.17.) A person who kills in imperfect self-defense does not have malice aforethought, which is required for murder convictions, so the chargeable offense can be no greater than manslaughter. (In Re Christian S., supra, 7 Cal.4th at p. 771 .)
Greer contends that the facts in her case give rise to imperfect self-defense and that the trial court erred in refusing to give this instruction. She relies on testimony that during the argument preceding the killing, Engelerdt grabbed her and pushed her against the wall. Greer also provides circumstantial evidence of the cracked mug and spilled liquid on her shirt, which she believes indicates that Engelerdt broke the mug she was holding during their altercation. Finally, Greer points to the fact that she had a bruise on her upper right arm. We disagree that this evidence warrants the imperfect self-defense instruction.
A trial court is required to give a requested instruction concerning imperfect self-defense "only if there is substantial evidence to support the defense." (In re Christian S., supra, 7 Cal.4th at p. 783). For example, in People v. Viramontes (2001) 93 Cal.App.4th 1256, a party who had been convicted of second degree murder appealed his conviction on the grounds that the judge did not instruct the jury on imperfect self— defense. The court held that the trial court erred in refusing to give the instruction because there was substantial evidence to support imperfect self-defense. (Id. at pp. 1263-1264.) Based on the testimony that someone shot at the defendant first and the undisputed evidence that at least eight shots were fired from two guns, the court in Viramontes determined the jury could have found the defendant held a reasonable belief in the need to defend himself. (Id. at p. 1263.) After taking into account additional conflicting evidence, the court reasoned that the defendant could have mistakenly believed that the victim fired a gun at him, and he actually and unreasonably believed that he had to defend himself against the victim. (Ibid.)
In contrast, Greer had insufficient evidence to support her claim she actually and unreasonably believed she needed to defend herself. The level of danger Greer faced did not come close to the life-threatening situation experienced by the Viramontes defendant, who had cause to believe that multiple parties were shooting at him. At best, the evidence shows Engelerdt pushed Greer against the wall, possibly broke her mug, and could have bruised her arm (although there was no evidence establishing she sustained the bruise during the incident). It cannot be said these minor acts would cause anybody to sense "imminent peril to life or great bodily injury." (See In Re Christian S., supra, 7 Cal.4th at p. 773; CALJIC No. 5.17.)
Moreover, the evidence regarding Greer and Engelerdts abusive history was of little value. Despite her smaller size, Greer was often the aggressor and there was proof she was capable of injuring Engelerdt. At trial, she did not provide any expert testimony on battered womens syndrome, and there was no other testimony indicating she subjectively could have felt in danger of "imminent peril . . . or great bodily injury" before she killed her husband. Based on all of the above, we find the court correctly concluded that the evidence did not warrant the imperfect self-defense instruction.
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., and FYBEL, J.