Opinion
A095680.
7-7-2003
THE PEOPLE, Plaintiff and Respondent, v. DAVID JOSEPH TORRENTE, Defendant and Appellant.
Defendant David Joseph Torrente was found guilty by a jury of second degree murder in the stabbing death of his father. A second jury found him legally sane at the time of the murder. Defendant contends that erroneous instructions on his claims of imperfect self-defense and insanity deprived him of a fair trial. We find no instructional error, and affirm the judgment.
BACKGROUND
Defendant was charged by information with murder (Pen. Code, § 187, subd. (a)), torture (Pen. Code, § 206), and aggravated mayhem (Pen. Code, § 205). The information further alleged that the murder occurred while committing mayhem and involved the infliction of torture and great bodily injury, and that defendant inflicted great bodily injury in connection with the torture count. (Pen. Code, §§ 190.2, subds. (a)(18) & (a)(17)(J), 1203.075, 12022.7.) Defendant pleaded not guilty by reason of insanity and denied all allegations in the information.
Jury trial began in September 2000.
Guilt Phase
Prosecution Case
On May 15, 1999, defendant was apprehended and interviewed regarding the death of his father, Peter Torrente, two days earlier. Sergeant Kenneth Canziani of the Marin County Sheriffs Department conducted two interviews of defendant on May 15. The transcripts of the interviews were placed in evidence.
Defendant initially told Canziani that Peter became psychotic and stabbed himself in the wrist and the throat while defendant tried to stop him. Defendant then admitted that he had actually murdered Peter. Peter had assisted him a couple of weeks earlier when defendant was caught writing bad checks. Defendant told Canziani that he had come home while Peter was eating dinner and that Peter was upset with him because he had written another bad check. Peter began berating defendant about the check. Defendant did not respond, but simply continued eating. Peter grabbed his shoulder and told him he was a "motherfucker." Peter told defendant that he would be taking him out of his will.
Defendant was "fed up" with Peters treatment of him and thought that being taken out of the will was "like a slap in [his] face." Defendant then "blew up" at Peter. He threw the table over, picked up a steak knife from the counter and stabbed Peter in the throat. Peter fell back into his chair, at which point defendant began punching Peter in the face while the knife was still in Peters neck. Peter was still trying to belittle defendant. Although Peter "didnt fight that much," he was still yelling. Peter bit defendants hands when defendant tried to silence his screams. Defendant became "very, very mad" and bit off the bottom of Peters ear and spit it out. Defendant then bit Peters nose and pulled Peter onto the floor and sat on top of him. Defendant retrieved a butter knife and "stabbed him . . . in his mouth" because he wanted Peter to stop screaming. Defendant then used the butter knife to stab Peter in the other side of the neck. Defendant sat on top of Peter for "a long time" and "punctured" Peters wrist with the tip of the steak knife to see if he was dead.
Defendant hugged Peter "in a farewell to his lifetime" and may also have kissed him on the cheek. He then put the knives in the kitchen sink and went upstairs where he used peroxide to clean the bite wounds on his hands. He also showered and shampooed his hair and changed his clothes. Defendant had a small wound on his thigh which he thought might have been inflicted by Peter taking the knife out of his neck and using it to stab defendant. Defendant also stated that he might have accidentally stabbed himself during the struggle. At some point, defendant searched Peters pockets and a cabinet, looking for money and credit cards.
After drinking a Coke, defendant left the house and got into his car. He drove to a nearby park and removed his bike from the back of the car. After his bike got a flat tire, he hailed a passing cab and got a ride to the San Francisco airport. He tried to purchase a ticket to fly to South Lake Tahoe but was unable to do so. He also tried several times to obtain cash from ATM machines using his fathers credit cards. He then went to the San Francisco Greyhound Station where he purchased tickets to Las Vegas but changed his mind and got off the bus. He eventually took BART to San Leandro, where police apprehended him the next morning.
In the course of Canzianis interview, defendant said he was pleased about stabbing Peter because he felt like he was "regaining [himself]." Defendant felt "much stronger," like he had "gained a part of [himself] back." Defendant wanted Peter to die because he had "taken so much stuff from him," and defendant had "reached [his] limit." Defendants second confession on May 15, 1999 duplicated the essential details of his earlier confession.
Defendants brother, Michael Torrente, testified that in the months before the murder, Peter frequently told him that defendant needed to "go to counseling or get medication or something." Michael told Peter about a case where a son had killed his parents to get his inheritance. Peter and Michael talked about the case because defendant had been threatening Peter. Michael testified that Peter seemed interested in the case and that he planned to amend his will. Because defendant was not getting along with his father, he was supposed to move out of Peters home on Friday, the day after the killing.
Dr. Thomas Gill, a forensic pathologist, performed Peters autopsy. Peter had bruises on his back, his lower leg, and his abdomen. Defendant had stabbed Peter in the right side of his neck, nearly severing his jugular vein. Defendant also stabbed Peter in the left side of the neck, once again injuring Peters jugular vein. Peters right ear had been torn before his death. Defendant had also severed a large portion of Peters left ear while he was still alive. Peter had black eyes from defendant punching him and his nose had been severely bitten. Peters nose was also "fractured in a number of places," his forehead had two large lacerations with significant hemorrhaging, and his tongue was crushed in a manner consistent with having an object inserted in his mouth while he was still alive. Peter tested negative for drugs or alcohol.
Tamara Bolfing was the taxi driver who picked defendant up on the night of May 13, 1999. Defendant flagged her down and asked her to take him to the San Francisco airport. He "acted calm" and his hair looked like he had just washed and "styled" it. Bolfing noticed that defendant had cuts on his hand that were "bleeding profusely." When Bolfing asked defendant how his hand was injured, defendant told her he had "crashed on his bike." When Bolfing expressed disbelief, defendant changed his story and told Bolfing he and a friend had been "sparring earlier" that day and he had accidentally hit his friend in the mouth. Defendant was "very polite, very pleasant, [and] very calm" during the ride to the airport. Once they reached the airport, defendant attempted to pay Bolfing with Peters credit card. After Bolfing said she did not take credit cards, defendant had her drive him to a nearby bank where he unsuccessfully attempted to use his fathers ATM card to withdraw cash. Defendant became "nervous and upset" after Bolfing threatened to call police. Defendant eventually paid for his fare by writing two checks.
The Defense Case
Veena Puccinelli was defendants girlfriend. According to Puccinelli, defendant feared the world was coming to an end. Defendant had many odd beliefs, including that Puccinelli could turn into a bird or squirrel and spy on him. He also believed Peters girlfriend, Terri Keith, was in the CIA and was molesting him telepathically.
Psychologist Dr. Ranald Bruce testified that defendant was a paranoid schizophrenic who was psychotic at the time he murdered Peter. Defendant was under the "delusion that his father and numbers of other people were out to kill him." Although defendant told Bruce that he knew it was wrong to kill Peter, Bruce did not believe defendant was able to fully appreciate his actions at the time of the homicide.
Dr. Fred Rosenthal also believed defendant was a paranoid schizophrenic. Because of his illness, defendant was unable to control his behavior when he murdered Peter. Defendants behavior at the time of the killing was "explosive and impulsive" and his actions after it were "disorganized [and] nongoal directed."
Dr. Edward Hyman, a forensic psychologist, testified that defendant was a paranoid schizophrenic whose psychosis "controlled and governed his activity." Hyman testified that defendant provided conflicting statements "every single time" the night of the killing was discussed. According to Hyman, defendant had no accurate memory of the events and had tried to piece together a version of what occurred based on what he had heard or been told. He dismissed any suggestion that defendant was lying or malingering.
On cross-examination, Dr. Hyman acknowledged that one of defendants conflicting accounts of the killing included a claim that Peter had lunged at him with a knife or broken glass. Hyman testified that although he did not believe defendant when defendant claimed his father had attacked him first, he did not think defendant was knowingly lying about it.
Prosecution Rebuttal
Dr. Shawn Johnston, a court-appointed forensic psychologist, opined that defendant suffered from a schizotypal personality disorder. Johnston believed defendant also displayed a variety of other pathologies. Johnston found defendant to be "very odd, very eccentric, and . . . very troubled in many very, very important ways." However, defendant was "not out of touch with reality," was not delusional, and did not exhibit hallucinations characteristic of somebody with "an illness as serious and severe as paranoid schizophrenia." Johnston opined that defendant killed his father in anger, and that he showed no signs of psychosis at the time or when he interacted with the taxi driver or talked to police.
Dr. Donald Apostle, a forensic psychiatrist, believed that defendants magical thinking and odd beliefs were consistent with a schizotypal disorder, rather than schizophrenia. Concerning the night of the killing, defendant told Apostle that Peter "went on a rampage" regarding the bad check. Defendant felt it was a "do-or-die" situation and that it would be "him or me." Defendant said Peter grabbed a knife and he went into a "survival mode" and killed Peter. Apostle testified that defendants behavior after the killing was "much too goal-directed" to be considered evidence of a psychotic state.
Sanity Phase
Defense
Dr. Hyman reiterated that defendant was a paranoid schizophrenic who was insane at the time he killed Peter. Hyman believed defendant "knew Peter Torrente as a person who was out to kill him, as a person who was demonic, as a person who was spying on him, as a person who would change forms in order to spy on him, as a person who had kidnaped him from the hospital and was not legitimately his father." Based on that "deluded context," defendant did not understand "the nature and quality of his acts" when he killed Peter.
Dr. Ranald Bruce also believed defendant was insane when he murdered Peter because defendant "was functioning under a number of different delusional systems about the reality of his father." Bruce felt that anybody with paranoid schizophrenia could not be considered legally sane when committing a murder. Even though defendant told him that he knew it was morally wrong to kill Peter, Bruce felt that defendants statement "seemed flat and parroted, and lacking in any kind of particular fervor." Defendant had a "limited" understanding of right and wrong, but did not understand the nature and quality of his act.
Dr. Fred Rosenthal also opined that defendant was a paranoid schizophrenic, who killed his father during a psychotic rage. Rosenthal believed defendant had not described his delusions to prior psychiatric professionals because he was trying to hide his symptoms. Rosenthal did not believe defendants behavior after the killing was relevant to his sanity. "You really cannot assume that because someone has a rational episode after a certain event that he was necessarily rational during that event."
Prosecution Case
Dr. Shawn Johnston believed defendant "very clearly was not insane" at the time he murdered defendant. In reaching this opinion, Johnston relied on information defendant gave him during his interview, which indicated that he "killed his father because he was angry at his father." Johnston was "struck by the remarkable consistency between [defendants] statements to [him] in July of 2000, and the statements he made to the police . . . where in essence [defendant] indicated that he became angry at his father, his father had belittled him, he became angry, he became enraged and he killed his father." Defendant said he "knew it was morally wrong" to have killed his father. Johnston discounted the notion that defendant killed his father in a psychotic frenzy.
Dr. Donald Apostle also concluded that defendant was not psychotic when he killed Peter. Apostle opined that defendant had a schizotypal personality disorder. His delusions were transitory in nature and did not govern his day-to-day activities. Defendant had threatened his father going back to 1996, and finally killed him. Apostle believed defendant was legally sane based on what had occurred during the murder, as well as his conduct following the murder. Defendants statements that he was relieved after the murder also showed that he knew and understood what he had done.
Dr. Steven Ornish also interviewed defendant. He explained that mental illness cannot be equated with legal insanity. Someone could be psychotic and legally sane. Ornish believed that defendant knew he had killed his father, and therefore knew the nature and quality of his acts. It was Ornishs opinion that defendant "killed his father out of feelings of intense rage and anger . . ., not out of some bizarre psychosis or delusion that rose to the level of him not knowing or understanding the nature and quality or wrongfulness of his act."
Verdict and Sentence
The jury found defendant guilty of second degree murder and acquitted him of the torture and mayhem charges, as well as the special allegations. The first sanity trial ended in a mistrial after the jury was unable to reach a verdict. A new jury thereafter found defendant legally sane.
The trial court sentenced defendant to a term of 15 years to life in prison and imposed a $ 10,000 restitution fine. Defendant filed a timely notice of appeal.
DISCUSSION
Imperfect Self-Defense
Defendant contends that the following CALJIC instruction given to the jury in this case misstated the law on imperfect self-defense to his prejudice: "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 manslaughter. [P] 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. [P] 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 adversarys use of force, attack or pursuit." (Emphasis added; see CALJIC No. 5.17.)
Under California law, imperfect self-defense is not considered a true legal defense. (People v. Barton (1995) 12 Cal.4th 186, 200, 906 P.2d 531 (Barton).) If proven, imperfect self-defense is classified as one form of voluntary manslaughter, and constitutes a lesser offense included in the crime of murder. (Id. at pp. 200-201.)
As an initial matter, we note that defendants trial counsel specifically requested the very instruction, CALJIC No. 5.17, which his appellate counsel now finds erroneous. Under the doctrine of invited error, we therefore reject defendants present complaint without regard to its substantive merit. (See People v. Cooper (1991) 53 Cal.3d 771, 831, 281 Cal. Rptr. 90, 809 P.2d 865.) However, the claim also fails on its merits.
According to defendant, the italicized portion of the instruction unduly limits the availability of imperfect self-defense by excluding it in circumstances where "the defendant is objectively the aggressor, and sets in motion a series of events that result in homicide," but the defendant nonetheless "mistakenly believes, as a matter of factual perception, that his opponent [is] the aggressor." Defendant maintains that the 1995 revision to CALJIC No. 5.17-which added the italicized language in reliance on a footnote in In re Christian S. (1994) 7 Cal.4th 768, 872 P.2d 574 (Christian S.)-in fact misconstrued the footnote. The disputed footnote reads as follows: "It is well established that the ordinary self-defense doctrine-applicable when a defendant reasonably believes that his safety is endangered-may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversarys attack or pursuit is legally justified. [Citations.] It follows, a fortiori, that the imperfect self-defense doctrine cannot be invoked in such circumstances. For example, the imperfect self-defense doctrine would not permit a fleeing felon who shoots a pursuing police officer to escape a murder conviction even if the felon killed his pursuer with an actual belief in the need for self-defense." (Id. at p. 773, fn. 1.)
Defendants thesis is that footnote 1 was intended to exclude from the purview of imperfect self-defense mistakes of law only, not an unreasonable but honest mistake of fact about who is the aggressor. Defendant argues that the single example given in the footnote illustrates a mistake of law, i.e., a fleeing felons mistaken belief that the law would recognize his act of attacking a pursuing police officer as lawful self-defense. Thus, defendant claims the drafters of the 1995 revision to CALJIC No. 5.17 failed to see the context and limited purpose of the footnote. Defendant asserts that his view of imperfect self-defense is also bolstered by two other Supreme Court cases, People v. Flannel (1979) 25 Cal.3d 668, 160 Cal. Rptr. 84, 603 P.2d 1 (Flannel) and Barton, supra.
We disagree with the starting premise of defendants argument. The footnote in Christian S. is not concerned with a defendants subjective beliefs, whether of fact or law. The footnote is concerned with objective facts. If the facts show that a defendant accused of murder created circumstances in which the victim would have been legally justified in attacking him, then, according to Christian S ., the defendant is guilty of murder. He cannot claim in mitigation that he killed the victim under a mistake of fact, whether reasonable or unreasonable, as to whether the victim was about to attack him. The example given in footnote 1 does not turn on the felons legal understanding of his right to act in self-defense, but on the objective fact that his felony afforded the officer legal justification for pursuing him.
In this case, there is no dispute that defendant initiated a vicious physical assault on his father that would have justified the father in fighting back with any means at hand. Having initiated such an attack as a matter of objective fact, neither the defendants subjective belief that his father was the aggressor nor any misperception that his father lunged at him with a knife would support a reduction of his offense to voluntary manslaughter under Christian S. We find no inconsistency between Christian S. and CALJIC No. 5.17 on this point.
Flannel is equally unavailing. The defendant in Flannel had a running feud with one Charles Daniels. (Flannel, supra, 25 Cal.3d at p. 673.) Due to an earlier fight between them, the district attorney warned both men to avoid each other. (Ibid.) Defendant was standing on the sidewalk drinking with a group of men when he saw Daniels approaching. (Ibid.) Instead of avoiding him, defendant retrieved a gun from the trunk of his car and confronted Daniels, who began to back away from defendant. (Ibid.) Daniels waved defendant away with one hand while keeping his other hand near his back pocket where he was known to keep a knife. (Id. at pp. 673-674.) Defendant challenged him to pull his knife, and then shot Daniels at close range. (Id. at p. 674.) Danielss switchblade knife flew into the air as he fell although no one had seen it in his hand. (Ibid.)
At trial, the defendant in Flannel relied unsuccessfully on a theory of self-defense. (Flannel, supra, 25 Cal.3d at p. 674.) He was convicted of second degree murder and argued on appeal that the trial court erred in not instructing the jury sua sponte that it could convict him of manslaughter if it found that he killed Daniels in the honest but unreasonable belief that he was acting in self-defense. (Id. at p. 681.) Although the Supreme Court discussed the imperfect self-defense doctrine at length in Flannel, it never reached the issue of whether that defense applied to the facts before it. Instead, the court held that the principle that manslaughter is the appropriate penalty in cases of imperfect self-defense was not so commonly recognized in the decisional law at the time of trial that the trial court would have had a sua sponte duty to instruct on that theory if the facts warranted. (Ibid.) The court affirmed the conviction without addressing whether the defense would have been available in the factual scenario of the case. Flannel thus cannot be taken as support for the claim that a defendant who initiates an attack on the victim can claim imperfect self-defense based on his honest but mistaken belief that the victim was the aggressor. (See People v. Castellanos (1999) 21 Cal.4th 785, 798, fn. 9, 982 P.2d 211 [an opinion is not authority for a proposition not considered in it].)
Barton is also of no assistance to defendant. In that case, defendant Barton learned from his daughter that the victim, Marco Sanchez, had tried to run her car off the road. (Barton, supra, 12 Cal.4th at p. 191.) He pursued and eventually confronted and argued with Sanchez at a shopping center. (Ibid.) At trial, Barton testified that when he saw what looked like a blade in the victims hand, he drew his gun to detain the victim until police arrived. (Id. at p. 193.) When the victim made a sudden move toward him, Bartons gun went off accidentally. (Ibid.) No knife was found in the victims possession. (Id. at p. 202.) Barton was convicted of voluntary manslaughter. (Id. at p. 194.) On appeal, he claimed the trial court erred in instructing the jury on voluntary manslaughter over his objection that the instruction was inconsistent with the defense theory that the killing was accidental. (Id. at pp. 193-194.) The Supreme Court disagreed, finding that the record contained evidence from which a reasonable jury could have discounted Bartons testimony that the gun discharged accidentally, and could have concluded that he killed Sanchez deliberately in the unreasonable but good faith belief that Sanchez was lunging toward him with a knife. (Id. at p. 202.) Holding that a defendant has no compelling interest in forcing the jury to an all or nothing verdict on guilt, the Supreme Court affirmed Bartons voluntary manslaughter conviction. (Id. at p. 204.)
Defendant makes a strained argument that the Supreme Court recognized the appropriateness of imperfect self-defense in Barton notwithstanding facts showing that Barton was the aggressor. Defendant emphasizes that Barton sought out the confrontation and that he brought out a concealed weapon that he was licensed to carry for business purposes only. The issue under CALJIC No. 5.17 is not who starts the conflict but whether the defendants wrongful conduct would have legally justified the victim in using force. Although Bartons unreasonable actions led to the confrontation between him and Sanchez, it is at least debatable whether his actions would have given Sanchez legal justification for attacking him with a knife. In any event, no argument to that effect was made or considered in Barton. Because the Court in Barton was not faced with the issue defendant is raising here, Barton is not controlling or persuasive on that issue.
People v. Hardin (2000) 85 Cal.App.4th 625 (Hardin) is closer to the facts presented here. The defendant in Hardin ran into a strangers home and attacked her with a hammer she had grabbed to try to force him out of the house. (Id. at pp. 631-632.) At trial, defendant claimed imperfect self-defense. He presented evidence that ingesting cocaine had rendered him psychotic, and that he ran into the victims home to seek refuge from persons he believed were trying to kill him. (Id. at pp. 628, 631-632.) Believing that the victim was helping his pursuers and was about to attack him, he snatched the victims hammer and attacked her with it. (Id. at pp. 631-632.) Thus, as in this case, the defendant was asserting that, due to his psychosis, he held an honest but unreasonable belief at the time of the attack that his adversary was the aggressor. (Id. at p. 628.) The appellate court was not persuaded. It found that imperfect self-defense did not apply because the victim was objectively entitled to use force to evict defendant from her home. (Id. at p. 634.) The defendants subjective belief that the victim was the aggressor played no part in the courts analysis. (See also People v. Watie (2002) 100 Cal.App.4th 866, 878 [defendant had no right of self-defense, imperfect or otherwise, against a victim with a right to use force to defend himself in his home, even if defendant believed the victim was about to shoot him].)
We hold that CALJIC No. 5.17 correctly construes California law. We also agree with the People that defendant cannot in any event demonstrate prejudice. Defendant offered no credible evidence that he actually believed he was in danger from Peter. On cross-examination, the prosecution elicited Dr. Hymans admission that once or twice, among the many different versions defendant gave him of the killing, defendant told Hyman that his father may have come back at him with a knife or glass. The defense then established that Dr. Hyman himself gave no credence to these statements and believed defendant had no reliable memory of what occurred. An imperfect self-defense instruction need not be given unless the evidence is such that a reasonable jury could conclude that the defendant killed the victim in the belief that the victim posed a threat. (See Barton, supra, 12 Cal.4th at 201.) On this record, no instruction on imperfect self-defense was even required. Even if the portion of CALJIC No. 5.17 to which defendant objects had been excised from the instruction, the evidence supporting a voluntary manslaughter theory is so slender that there is no reasonable probability the jury would have been convinced by it.
Defendants objection to CALJIC No. 5.17 thus fails under the doctrine of invited error and fails on its merits.
Insanity Instruction
Based on CALJIC No. 4.00, the trial court instructed the jury as follows on defendants sanity defense: "The defendant has been found guilty of the crime of murder in the second degree. You must now determine whether he was legally sane or legally insane at the time of the commission of the crime. This is the only issue for you to determine in this proceeding. [P] You may consider evidence of his mental condition before, during and after the time of the commission of the crime as tending to show the defendants mental condition at the time the crime was committed. [P] Mental illness and mental abnormality, in whatever form either may appear, are not necessarily the same as legal insanity. A person may be mentally ill or mentally abnormal and yet not be legally insane. [P] A person is legally insane when by reason of mental disease or mental defect he was incapable of either, one, knowing the nature and quality of his act, or two, understanding the nature and quality of his act, or, three, distinguishing right from wrong at the time of the commission of the crime. The defendant has the burden of proving his legal insanity at the time of the commission of a crime by a preponderance of the evidence." (Emphasis added.)
Defendant contends the italicized portion of CALJIC No. 4.00 does not accurately reflect the test of sanity as set forth in People v. Kelly (1973) 10 Cal.3d 565, 574, 111 Cal. Rptr. 171, 516 P.2d 875: "Insanity, under the California MNaughton test, denotes a mental condition which renders a person incapable of knowing or understanding the nature and quality of his act, or incapable of distinguishing right from wrong in relation to that act." (Emphasis added.) According to defendant, a defendants ability to distinguish between right and wrong "at the time of the commission of the crime," means something different than his ability to distinguish between right and wrong "in relation to that act."
We do not find this minor difference in wording to have any legal significance. The words, "at the time of the commission of the crime," properly direct the jurys attention to the defendants capacity for understanding the wrongfulness of his criminal act at the time he committed it. Consistent with the instruction, the focus of the evidence and arguments presented to the jury during the sanity phase in this case was whether defendant knew that killing his father was wrong, not whether he had a generalized capacity to distinguish right from wrong. We find no basis in this record to conclude that the jury applied a more generalized or rigorous test of insanity than the law requires.
DISPOSITION
The judgment is affirmed.
We concur: Stein, Acting P.J. and Swager, J. --------------- Notes: Peter died intestate, with an estate valued at approximately $ 1.8 million. On the day before the murder, he had called an attorney and asked to schedule an appointment to do some estate planning.