Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Craig E. Veals, Judge. Los Angeles County Super. Ct. No. GA059003.
Thomas T. Ono, 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, Steven E. Mercer and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, Acting P. J.
Patricia Ann Villanueva appeals from the judgment entered upon her conviction by jury of second degree murder (Pen. Code, § 187, subd. (a)). The jury found to be true the personal use of a deadly or dangerous weapon allegation within the meaning of section 12022, subdivision (b)(1). The trial court sentenced appellant to an aggregate prison term of 16 years to life. Appellant contends that (1) there is insufficient evidence to support the murder conviction, and (2) instructing the jury in accordance with modified CALJIC No. 8.31 was erroneous because it (a) fails to define the unlawful act which is the basis for applying the natural and probable consequences doctrine, (b) creates an impermissible mandatory presumption, and (c) permits conviction based upon mere negligence.
All further statutory references are to the Penal Code unless otherwise indicated.
We affirm.
FACTUAL BACKGROUND
The prosecution’s evidence
The murder
On October 5, 2004, appellant telephoned 911 to request an ambulance, stating “I just tried killing my mother.” She said her mother was “out,” but still breathing. At the operator’s direction, appellant propped up her mother’s feet.
Deputy Sheriffs Kirk Petersen and Anthony Delany separately responded to the 911 call and went to appellant’s residence in Rosemead. Deputy Petersen “pounded” on the front door and eventually got appellant to come outside. She did not appear agitated or upset, responded appropriately to questions, and said that she hit her mother on the head with a hammer. Deputy Delany arrested her.
Deputy Petersen entered the house and discovered the body of appellant’s 81-year-old mother, Patricia Camarillo, lying on the floor, her feet propped up on a pillow, blood pooled around her head and upper torso, blood spatter on her clothes, and a bloody hammer next to her. She had a head injury, and the bone on one of her fingers was protruding from the knuckle.
Interrogation of appellant
At 9:00 a.m., the morning after the incident, before appellant had been told that Camarillo had died, homicide Detectives Antoinette Martinez and her partner, Patrick Tapia, conducted a tape-recorded interview of appellant at the sheriff’s station. Appellant was cooperative, appeared to understand the detectives’ questions and responded appropriately. After waiving her Miranda rights, she told the detectives that she was not taking any medications or seeing a mental health professional. She said that the stapled-closed lacerations the detectives observed on her arm were the result of an attempted suicide five days earlier. She also reported that she recently had a part of her stomach removed and had to wear diapers as a result.
Miranda v. Arizona (1966) 384 U.S. 436.
Appellant told the detectives that she had been thinking of killing her mother for three days. She said she had not “been able to sleep. And [had] been laying [sic] awake all night long. And . . . planned on killing [her] mother.” Although she did not know why, “[she] just wanted her [mother] to die and . . . wanted to commit suicide.” She and her mother had not been arguing.
Appellant waited until her daughter went to work. Appellant took a hammer from under the kitchen sink, snuck up on Camarillo, who was eating at the kitchen table, and struck her four times in the face. Her mother said, “You’re hurting me, why are you doing this for,” and tried to defend herself and grab appellant’s arms. Appellant made certain Camarillo was “out.”
Appellant further stated that after the attack, she saw her mother breathing but did not check her vital signs or attempt to obtain medical aid. She simply looked at her mother to make sure she was not going to get up. Appellant then removed appellant’s bloody nightgown and placed it in a hamper in her bedroom. She filled the bathtub with water and rolled an air cooler into the bathroom, intending to electrocute herself by plugging it in and placing it in the tub with her. She did not do so because she could not lift the cooler, and it automatically shut off. She soaked in the tub for 15 minutes, got out, and called paramedics.
At the end of the interview, Deputy Tapia asked, “What did you plan on doing to your mother,” to which appellant responded, “Kill[ ] her.” She said she knew what she did was wrong.
The investigation
An autopsy indicated that Camarillo suffered approximately eight blows to her face, 11 blows to the top of her head, bruising of her arms and legs and defensive wounds on her hands. She died of blunt force trauma to the head.
After interrogating appellant, Detective Martinez returned to appellant’s residence. In the bathroom, she found blood spots on the plastic shower curtain and an air cooler plugged into the socket. A blue, blood-stained nightgown was recovered in the clothes hamper in appellant’s bedroom.
The defense’s case
Appellant’s daughter, April Villanueva, appellant’s neighbor, Joann Serrano, and Dee Costello, who worked at the market where appellant and Camarillo shopped, testified that appellant and Camarillo loved and respected each other and never argued. Appellant often told Serrano of wanting to commit suicide because of constant pain. As appellant was being taken away after the charged incident, Serrano testified that she looked “[c]ompletely out of it.” Costello found appellant to be normal, other than her excessive sadness.
Appellant had numerous painful medical problems which limited her mobility and depressed her, including back problems, hepatitis C, liver, thyroid and colon problems, and kidney and liver failures. On September 19, 2004, she became very ill and had emergency surgery to remove a large part of her colon. After the surgery, she had a lot of pain, had trouble breathing and had severe diarrhea that required her to wear diapers, aggravating her depression. As a result of her physical problems, appellant took numerous medications.
Appellant also had a long history of psychological problems. For more than 10 years, she had experienced episodes of confusion and “zone[ing] out,” which became more frequent in the last five years. In June 2004, she tried to commit suicide by overdose. A C.T. scan revealed that appellant had mild frontal cortical atrophy. In October 2004, just days before attacking her mother, appellant again tried to kill herself by cutting her arms. She was hospitalized, and released the day before the alleged incident, with a recommendation of antidepressant medication and outpatient counseling.
Appellant called several expert witnesses who testified regarding her physical and mental conditions. After reviewing records of the sheriff’s department and treating health care providers going back to 1970, listening to appellant’s interview with detectives, conducting neuropsychological tests and interviewing appellant, clinical neuropsychologist, Arnold Purisch, concluded that appellant had brain damage, possibly caused by a head injury suffered in the early 1970’s and aggravated by alcohol abuse. The brain damage caused her to function cognitively “below expectations for a person a female [sic] of her age of her education of her background.” She scored in the mentally retarded range on intelligence tests, although she functioned above that level.
Dr. Purisch believed that appellant suffered “major depression,” bipolar disease and schizoeffective disorder, which he described as a combination of schizophrenia and mood disorder. She had a chemically dependent personality, was a hypochondriac, and had a borderline personality disorder, manifesting indecisiveness. She had problems in judgment, reasoning, thinking on her feet, and processing information. During her interview with Dr. Purisch, she had difficulty finding words and maintaining a train of thought, evidencing cognitive disorganization.
Dr. Purisch opined that a hypothetical person in appellant’s circumstances with appellant’s physical, mental and psychological disorders would have seriously compromised brain functions. Such a person would lose the ability to think things through, and would not be able to comprehend the consequences of his or her actions. But he was also of the opinion that if that hypothetical person articulated a desire to kill his or her mother to prevent her from interfering with a planned suicide, that person could make plans, exercise choice and understand that death was a natural consequence of an attack with a hammer.
Los Angeles County Jail forensic psychiatrist, Eugene Kunzman, treated appellant after her arrest until trial. She had numerous medical problems, and he diagnosed her with bipolar disorder, generalized anxiety disorder, and hypochondria. He believed that appellant was sad and remorseful about killing her mother, but had a sense of disbelief about her mother’s death. He treated appellant with mood stabilizers and medication for psychotic disorders.
Forensic Psychiatrist Gregory Cohen was appointed to evaluate appellant. After reviewing the pertinent materials and interviewing appellant twice at the jail, he concluded that she suffered significant, multiple psychiatric, medical and neurological disorders, similar to those found by Dr. Purisch. Dr. Cohen opined that a hypothetical person with appellant’s disabilities and in appellant’s situation would have a decreased ability to comprehend actions and consequences.
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE
Appellant contends that there is insufficient evidence of malice to sustain her conviction of second degree murder. She argues that “[i]t is axiomatic that the prosecution is bound by its presentation of the defendant’s statement as to how the killing occurred in the ‘absence of proof to the contrary.’” She claims that the evidence in her pretrial statements establishes that her acts “were not deliberately performed with knowledge of the danger to, and with conscious disregard for human life.” We disagree.
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995)37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless ‘“upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, at p. 331.) This standard of review is the same in cases involving circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Catlin (2001) 26 Cal.4th 81, 139.) Given this court’s limited role on appeal, defendant bears a heavy burden in claiming there was insufficient evidence to sustain the finding. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Second degree murder is defined as the unlawful killing of a human being with malice aforethought, but without the additional element that it be willful, deliberate and premeditated, which is required for first degree murder. (§§ 187, subd. (a), 189; People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.) Malice may be express or implied. (§ 188; People v. Nieto Benitez, supra, at p. 102.)
Express malice is manifested when there is a “deliberate intention unlawfully to take away the life of a fellow creature.” (§ 188.) Implied malice exists when an intentional act naturally dangerous to human life is deliberately performed “‘by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’” (People v. Lasko (2000) 23 Cal.4th 101, 107; People v. Martinez (2003) 31 Cal.4th 673, 684; § 188.) Implied malice has both a physical and mental component—the physical component being an act the natural consequence of which is dangerous to human life, and the mental component being the requirement that the defendant know that his conduct endangers the life of another and acts in conscious disregard. (People v. Calderon (2005) 129 Cal.App.4th 1301, 1309.) “[S]tated in more everyday language . . . the state of mind for implied malice is, ‘“I know my conduct is dangerous to others, but I don’t care if someone is hurt or killed.”’” (People v. David (1991) 230 Cal.App.3d 1109, 1114.) Malice may be, and usually must be, proved by circumstantial evidence. (See People v. Lashley (1991) 1 Cal.App.4th 938 945; People v. James (1998) 62 Cal.App.4th 244, 277.)
Here, there was evidence sufficient to support a finding of either type of malice. There was substantial evidence that appellant intended to kill her mother and hence acted with express malice. The nature of appellant’s attack suggested an intent to kill. (People v. Halvorsen (2007) 42 Cal.4th 379, 439 [sudden gunshot to head or neck at close range strongly indicates an intent to kill].) She snuck up on her mother and repeatedly beat her on the head and face with a hammer. Her express statements further evidence that intent. She told the 911 operator that she tried to kill her mother and repeated that comment several times to the interrogating detectives, even stating that she had been planning to do so for days. Near the end of the interrogation, when Detective Tapia asked appellant what she planned on doing to her mother, she said, “kill[ ] her.”
But appellant argues that her statements to police “show[ ] that, although [she] used words that she intended to ‘kill’ and ‘murder’ her mother, [she] intended only to render her mother unconscious until her suicide was completed.” Appellant points to the evidence that she called 911 for paramedics, elevated her mother’s feet on a pillow, and checked on her mother two or three times after the attack to make sure she was “just out.” But appellant’s conduct after the attack does not necessarily reflect her intent when she attacked. She may simply have had a change of heart after seeing her mother’s bloodied body. Furthermore, appellant told police she checked on her mother only to make certain that her mother was not going to get up and interfere with appellant’s suicide attempt. Therefore, in context, it does not appear that appellant’s use of the term “just out” indicates that she only wanted to render her mother unconscious. In any event, that statement does not trump appellant’s numerous statements that she intended to kill her mother. Appellant also points to her statements indicating that she believed her mother was still alive after the attack. This too is not inconsistent with an intent to kill. It may simply have reflected that she could not face the reality of what she had done or that she was not immediately aware of her mother’s death. In short, we see nothing in appellant’s statements to detectives that forecloses a finding in line with her express statements that she intended to kill her mother. Nor do appellant’s mental disorders preclude such a finding. (See, i.e., People v. Bobo (1990) 229 Cal.App.3d 1417 [bizarre and delusional motives for murder do not preclude a finding of express malice].)
Alternatively, there was substantial evidence of implied malice. The natural consequence of appellant striking her mother more than a dozen times on the head and face with a hammer is obviously dangerous to human life. This meets the physical component of implied malice. (People v. Calderon, supra, 129 Cal.App.4th at p. 1309.) The evidence also supports the second component of implied malice; that appellant knew that her conduct endangered life and acted in conscious disregard. She told the detectives that she had been lying awake thinking of killing her mother for several days before she did. Before the attack, appellant waited for her daughter to leave for work, permitting an inference that appellant knew the gravity of what she was about to do and did not want her daughter to witness it. During the attack, appellant heard her mother cry out that appellant was hurting her and plead for her to stop. Despite being aware of the pain she was inflicting, she continued the brutal beating. Even after her mother lay motionless on the ground, appellant checked her only to make certain that she would not get up and prevent appellant’s suicide. Minutes after the deadly assault, appellant telephoned 911 and reported that she had just “tried killing [her] mother.” When the police arrived, she similarly informed them, also admitting that she planned on killing her mother and knew what she had done was wrong. Appellant’s statements to police contained sufficient evidence to allow the jury to conclude that she acted in conscious disregard for her mother’s life.
We need not consider the propriety of appellant’s claim that the prosecution is bound by its introduction of appellant’s pretrial statements on how the homicide occurred, because even if bound by those statements, they are sufficient to support the verdict.
Even if, as appellant argues, she did not appreciate that she might kill her mother but only wanted to render her unconscious, the facts recited above relative to the brutal attack reflect a conscious disregard for life. Dr. Purisch testified that a person in appellant’s circumstances with appellant’s conditions, who articulates a desire to kill her mother to prevent her from interfering with a planned suicide, is able to understand that death is a natural consequence of beating a person on the head with a hammer. The jury was not unmindful of appellant’s mental and physical disabilities, and seemingly took them into account by finding her guilty of only second degree murder.
II. JURY INSTRUCTION
The trial court instructed the jury in accordance with CALJIC No. 8.31 as follows: “Murder of the second degree is also the unlawful killing of a human being when: [¶] 1. The killing resulted from an intentional act, [¶] 2. The natural consequences of the act are dangerous to human life, and [¶] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. [¶] When the killing is the direct result of such an act, it is not necessary to prove that the defendant intended that the act would result in the death of a human being.” In closing argument, the prosecutor argued the natural and probable consequences doctrine as an alternative theory for implied malice to impose liability for second degree murder.
A. Contentions
Relying upon People v. Prettyman (1996) 14 Cal.4th 248, 266-270 (Prettyman), appellant contends that the trial court erred in failing to identify the uncharged criminal act of which the murder is the natural and probable consequence. She further contends that “application of the natural and probable consequence doctrine improperly permits a murder conviction based on ordinary negligence and creates an improper mandatory presumption.” Respondent contends that appellant forfeited these contentions by failing to raise them in the trial court. We agree.
B. Forfeiture
Generally, ‘“[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.”’ (People v. Hart (1999) 20 Cal.4th 546, 622; People v. Gonzalez (2002) 99 Cal.App.4th 475, 483.) As respondent argues, the record does not reflect that appellant objected to CALJIC No. 8.31 or requested that it be amplified to identify the target offense.
C. Failure to identify a “target offense”
Even if the issue had been properly preserved for appeal, we would find it to be without merit. Appellant seeks to import the natural and probable consequences doctrine of Prettyman into the concept of natural consequences in implied malice. These concepts are unrelated. (People v. Martinez (2007) 154 Cal.App.4th 314, 333.)
In Prettyman, our Supreme Court stated, “It sometimes happens that an accomplice assists or encourages a confederate to commit one crime, and the confederate commits another, more serious crime (the nontarget offense). Whether the accomplice may be held responsible for that nontarget offense turns not only upon a consideration of the general principles of accomplice liability . . . but also upon a consideration of the ‘natural and probable consequences’ doctrine. . . .” (Prettyman, supra, 14 Cal.4th at pp. 259-260.) Under that doctrine, “a defendant may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the ‘natural and probable consequence’ of the target crime.” (Id. at p. 261.) The trial court must instruct on the target offense sua sponte. (Id. at p. 268.)
The Supreme Court explained the rationale for the natural and probable consequences doctrine, as follows: “‘[A] defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which . . . must be found by the jury.’ [Citation.]” (Prettyman, supra, 14 Cal.4th at p. 261.) The purpose of the rule in Prettyman is to ensure that the so-called target crime upon which the prosecution relies in establishing accomplice liability is identified and described for the jurors, so that they can then meaningfully evaluate whether the charged or nontarget crime committed by a defendant’s confederate was a natural and probable consequence of that target crime.
Prettyman has no application here. There is no analogy between the implied-malice murder “natural consequences” element and the natural and probable consequences doctrine defining aider and abettor liability. The use of the term “natural consequences” in CALJIC No. 8.31 does not import into the crime of murder the case law relating to the distinct “natural and probable consequences” doctrine. The sua sponte duty to instruct a jury on target offenses is limited only to the latter concept. (People v. Martinez, supra, 154 Cal.App.4th at p. 334.)
Here, we are not presented with an aiding and abetting case. This is a murder case, not involving an accomplice, in which the rationale for the sua sponte instruction of the target offense is not present.
D. Unconstitutionality
Appellant contends that instructing the jury in accordance with CALIC No. 8.31 constitutes reversible error because application of the natural and probable consequence doctrine improperly permits a murder conviction based on ordinary negligence and creates an improper mandatory presumption. She argues that the natural and probable consequence doctrine permitted the jury to convict her even if she was negligent in committing the predicate act and ignorant of the danger it posed. She further argues that the statement in CALJIC No. 8.31 that “When the killing is the direct result of such an act, it is not necessary to prove that the defendant intended that the act would result in the death of a human being,” when combined with the natural and probable consequences doctrine, created the presumption that implied malice is presumed even if the jury finds that she had no actual intent to kill her mother. This contention is meritless.
As discussed in part IIC, ante, the natural and probable consequence doctrine has no application here and thus does not create a presumption or allow liability based on negligence. Further, the language of CALJIC No. 8.31 disposes of these claims. It only imposes criminal liability if the defendant performs the act “deliberately” and “with knowledge of the danger to, and with conscious disregard for, human life.” Hence, mere negligence will not sustain a finding of implied malice because the defendant must act with knowledge of the danger the defendant’s actions pose. There is no presumption of malice, for malice requires the performance of acts with callous indifference to the potential for death.
DISPOSITION
The judgment is affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.