Opinion
E065032
07-07-2017
THE PEOPLE, Plaintiff and Respondent, v. FREDDY PEREZRODAS, Defendant and Appellant.
Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1500424) OPINION APPEAL from the Superior Court of Riverside County. John M. Monterosso, Judge. Affirmed. Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
On July 23, 2014, defendant and appellant, Freddy Perezrodas, shot his wife, Laura Perez, three times, killing her, during what defendant later claimed was a heated argument in the upstairs bedroom of the couple's Murrieta home. Defendant claimed he shot Laura in the heat of passion. He claimed they were arguing because Laura, a police officer, had been having an extramarital affair with another police officer, and Laura insulted defendant during the argument. Defendant also claimed he shot Laura in self-defense while she was retrieving a handgun from her purse to shoot him.
Defendant wrapped Laura's body in a tarp, set fire to the Murrieta house, and took Laura's body to a storage unit. Later on July 23, defendant returned to the house and called 911 to report that the house was on fire and Laura might be inside. Following four hours of police questioning on July 23 and 24, defendant confessed to the homicide but claimed he shot Laura in both self-defense and in a sudden quarrel or heat of passion.
A jury found defendant not guilty of premeditated murder but guilty of second degree murder (Pen. Code, § 187, subd. (a)) and arson (§ 451, subd. (b)). The jury also found that defendant personally and intentionally discharged a firearm, causing great bodily injury or death. (§ 12022.53, subd. (d).) Defendant was sentenced to an eight-year determinate term for the arson conviction plus 40 years to life—15 years to life for the murder conviction plus 25 years to life for the firearm enhancement.
All further statutory references are to the Penal Code unless otherwise indicated.
In this appeal, defendant raises three claims of prejudicial instructional error. He claims: (1) the pattern instruction on voluntary manslaughter (CALCRIM No. 570) erroneously told the jury it was his burden to adduce "affirmative proof" that he killed Laura in the heat of passion; (2) the pattern instruction on self-defense (CALCRIM No. 505) erroneously told the jury that he did not act in lawful self-defense if he harbored any emotion other than fear for his life, including anger, when he shot her; and (3) CALCRIM No. 505 and the other instructions wrongly implied he was guilty of murder if he had "mixed motives" when he shot and killed Laura, and lessened the prosecution's burden to prove he acted with malice.
As an initial matter, we reject the People's contention that defendant has forfeited his claims of instructional error by failing to request clarifying or pinpoint instructions below. Though "'[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. Landry (2016) 2 Cal.5th 52, 121), a defendant need not assert an objection to preserve a contention of instructional error on appeal when the error affects the defendant's "substantial rights" (§ 1259). Defendant does not merely claim that the instructions were incomplete or too general, but claims the instructions were not "correct in law." Thus, his claims of instructional error are cognizable on appeal despite his failure to raise them below. (People v. Lawrence (2009) 177 Cal.App.4th 547, 553-554, fn. 11.)
We find no merit to any of these claims. Accordingly, we affirm the judgment.
II. FACTUAL BACKGROUND
A. Prosecution Evidence
1. Defendant and Laura's Relationship
Defendant moved to the United States from Guatemala with his mother when he was nine years old. He and Laura met when they were teenagers. They married in 2007, and their daughter S. was born in 2010. Before they married, neither of them had dated anyone else.
In 2012, defendant and Laura purchased a home in Riverside. In 2013, Laura attended the police academy, and in October 2013, Laura became an Escondido police officer. In December 2013, Laura, defendant, and S. moved into a rental home in Murrieta to be closer to Escondido. They leased their Riverside house to a tenant. In February 2014, Laura's mother moved in with them.
According to Laura's mother, Laura and defendant argued, but their "fights" never became "physical." Defendant's mother and older sister had never seen defendant be violent toward anyone.
2. Laura's Extramarital Affair and Defendant's Suspicions
Laura was having an affair with T.L., another police officer whom she met at the police academy in early 2013. The affair began in December 2013. After that, T.L. and Laura saw each other around once each month. They last saw each other a week or two before Laura's death. They stayed in contact by text and last texted each other on July 22, 2013, the day before Laura's death. A recording of a phone conversation between Laura and T.L., in which Laura talked about ending their "emotional" relationship, was played for the jury.
T.L. knew defendant was uncomfortable with T.L.'s relationship with Laura, but T.L. did not believe defendant knew about the affair. T.L. also had no reason to think Laura was in any danger because of defendant. T.L. knew that Laura carried a Smith & Wesson M&P40 handgun in her purse as a "back-up weapon" for personal and public protection when she was off duty.
3. Defendant's Actions Around the Time of the Shooting
During the month before he shot and killed Laura, defendant twice expressed his suspicions to his sister that Laura was having an affair. On July 21, two days before the July 23 shooting, defendant told Laura's mother that Laura had a male friend from the police academy whom defendant did not like, and that he and Laura were separating. Defendant and Laura were arguing for around two days before the July 23 shooting.
On July 22, defendant searched for gun silencers on the Internet with his mobile phone. On July 22, Laura and defendant took Laura's mother out to dinner, but it appeared to Laura's mother that Laura and defendant were "in a fight" because they were not speaking to each other. Laura's mother last saw Laura around midnight on July 22, just before Laura's mother went to bed, when Laura was in S.'s room in the Murrieta home.
On July 23, Laura's mother awoke at 10:30 a.m., left the Murrieta home at 11:00 a.m., and drove to Riverside. She did not see or speak to Laura that morning, but she saw defendant and S. downstairs before she left. Defendant told her that Laura was going to a meeting in Escondido and he was going to Temecula to see about a landscaping job. He said he was taking S. with him, which was unusual.
During the afternoon of July 23, defendant called the tenant of his Riverside house, who was supposed to help him with a landscaping job that day, and told the tenant the job had been canceled. At 1:30 p.m., defendant sent a text message to Laura's cell phone. Around 2:00 p.m., defendant rented a storage unit in Moreno Valley and paid cash for it. S. was with him when he rented the unit. He told the manager of the storage facility that he needed the unit because he was separating from his wife. He did not request a unit of any particular size but said he wanted a unit he could drive up to.
A surveillance video showed that, around 2:15 p.m., defendant backed his truck into the storage unit he rented, then drove out of the storage facility. Later on July 23, while being questioned by police, defendant directed the police to the storage unit. There, officers found Laura's body, covered by a tarp and wrapped in plastic with duct tape.
Around 3:00 p.m. on July 23, defendant called Laura's mother, said he was in Riverside, and told her that Laura should have called her about going to dinner (again) that night with him and S. Around 3:30 p.m., he called one of his landscaping clients who had asked him to fix her sprinklers. He told the client he had been to her house around 11:00 a.m. and asked her whether she had seen him. To the client, the question seemed strange because she had been home all day, she had not seen defendant, heard her doorbell ring, or heard her dogs bark, and her sprinklers had not been fixed.
Later during the afternoon of July 23, defendant went to his mother's house in Riverside. While there, he put some of Laura's belongings, including her phone, in a bucket in the rafters of his mother's garage. After his mother noticed he was pacing outside her house, she asked him what was wrong and he said, "'Momma, I'm leaving.'" Three months earlier, he told his mother that Laura did not love him anymore.
Around 4:00 p.m., he called his sister from their mother's house, and the sister returned the call around 5:00 p.m. During the call, he told his sister he was going home to Murrieta, he had spoken with Laura, and he was going to have dinner with Laura, Laura's mother, and S. He also said he had resolved the problem he had been having with Laura; he said he had talked to Laura and they "were happy again." Meanwhile, at 4:25 p.m., he called Laura's cell phone. Sometime after 5:00 p.m., he called Laura's mother and told her to come home right away because Laura had had an accident, then he hung up the phone.
4. The Fire at the Murrieta House
At 6:22 p.m. on July 23, defendant called 911 and reported his Murrieta house was on fire and Laura might be inside. A recording of the 911 call was played for the jury. Defendant then went to his neighbor's house and told the neighbor his house was on fire and he thought Laura was inside. After firefighters arrived, defendant removed S. from her car seat, where S. had been sitting since she and defendant arrived home in defendant's truck, and the neighbor took S. into the neighbor's house.
Laura's mother arrived at the house after fire department personnel and the police had arrived. At the scene, defendant told a police officer that he saw smoke coming out of the house when he arrived home, and he thought Laura might still be in the house because her car was in the driveway. He said Laura was taking a shower when he left the house around 1:00 p.m., and Laura had a 2:30 p.m. meeting in Escondido. He said he found the front door unlocked but he was unable to go inside because there was too much smoke.
Firefighters searched both floors of the house but did not find Laura. They noticed irregular burn patterns on the staircase and in the master bedroom and an odor of gasoline. Investigators determined that the fire was intentionally set with "ignitable liquids," and that the fire originated at the base of the stairwell and burned over several hours, primarily in the stairwell area.
In the upstairs master bedroom, officers found an empty case for a Glock firearm in the closet, and a spent shell casing on the bed. Inside defendant's truck, officers found two cashier's checks for $5,000 each, dated June 8, 2012 and September 4, 2013, and a blue tarp in the truck bed.
While speaking with the police at the scene of the fire, defendant claimed he did not know Laura's whereabouts. He told the police about his attempts to contact Laura that afternoon, he reported fixing his client's sprinkler system around 2:00 p.m., and he reported going to his mother's house around 5:00 p.m. He explained he left S. in his truck when he returned home around 6:00 p.m. because he had planned to take S. to the park. When Laura's boss arrived at the scene of the fire, defendant asked him whether Laura was at work. Defendant was unemotional. Later on July 23 and 24, while being questioned by a police detective, defendant directed the detective to the storage unit he had rented and gave the detective the keys to the storage unit.
5. The Search of the Storage Unit
Shortly after 12:00 a.m. on July 24, the police opened the storage unit defendant had rented and found Laura's body, covered by a tarp and wrapped in plastic with duct tape. They also found a shovel, a pickax, a toolbox, tools, and plastic bags.
The toolbox contained several passports and $15,700 in $100 bills. They also found a large stuffed bear which contained $88,100 in cash. Inside a plastic bag, officers found a handgun with one live round in its chamber and more live rounds in its seven-round magazine, indicating that three rounds had been fired from the handgun. The same plastic bag contained a glove, tape, Laura's work identification card and passport, and Laura's purse, with her service handgun, fully loaded and holstered, inside a zipped compartment. Another live round was found in a different plastic bag.
6. The Cause of Laura's Death
An autopsy of Laura's body was performed on July 25, 2014. The cause of Laura's death was three gunshot wounds to her torso: one to the upper right area of her back, one to the left lower back, and one to the right flank. There was a "muzzle stamp" and soot around the gunshot wound to Laura's right upper back, indicating that the muzzle of the gun was pushed up against her back when the shot was fired. This wound could have been fatal in itself. There was no evidence of stippling or soot around the two other gunshot wounds. The direction of the gunshot wound to the upper right back was back to front, downward, and right to left. The gunshot wound to the lower left back was back to front, upward, and left to right. The gunshot wound to the right flank was right to left, downward, and front to back.
7. The Search of Defendant's Mobile Phone
Police conducted a forensic analysis or "extraction" of defendant's mobile phone after defendant turned it over during his July 24 interrogation. The extraction report from July 22 included cookies downloaded at 2:37 p.m. from the Web site "gunbroker.com," showing images of guns and silencers. In the cache for the Google Chrome browser, there were 51 thumbnail images related to guns, including some images of silencers. There was no evidence defendant purchased a silencer or used one when he shot Laura. B. Defense Evidence
1. Character Evidence
Laura's mother testified for the defense that Laura had a "[q]uick" temper, or was easily irritated. Defendant's brothers testified defendant was not violent and he and Laura had a healthy relationship.
2. Defendant's Testimony
In October 2013, Laura was becoming more distant from defendant. Shortly thereafter, defendant saw a text message on Laura's phone indicating she had slept in a man's car, and he began to suspect she was having an affair. The distance continued into 2014. One night, when Laura left her cell phone downstairs, he looked through it and saw numerous calls between her and T.L. On July 12, 2014, he installed a recording device in Laura's car. Two days later, he removed the recording device, listened to it, and was relieved to hear that Laura and T.L. were only talking about work.
On July 19, 2014, he put the device in Laura's car again, and told himself he would forget about the matter if he still heard nothing suspicious. On July 20, he listened to the recording and heard Laura talking about her emotions with T.L. He could not listen to the rest of the recording.
When he returned home at noon on July 20, Laura was getting ready for work, and he put the recorder back into her car. After Laura left for work on July 20, he called her and asked her whether she had feelings for T.L. They argued during the call, and a recording of the conversation was played for the jury. Later on July 20, Laura sent defendant numerous text messages asking him to forget about their argument, but defendant did not respond. They continued to argue through July 21.
On July 22, defendant and Laura got out of bed at 10:30 a.m., and defendant watched Laura to see whether she was still angry. She did not appear to be angry, and he told her they were going to take her mother out to dinner that evening. At some point, defendant and Laura were discussing what Laura wanted as a gift for their wedding anniversary on July 27. Laura said she wanted to buy "a big safe" for "a lot of guns," and a couple of months earlier, she had mentioned a silencer. He suggested they check on prices for silencers, and on July 22 they used his cell phone to look at Web sites that had silencers. Laura was with him when he searched for a silencer on the Internet.
Later on July 22, during the drive to the restaurant with Laura's mother, Laura was talking to him and no longer seemed upset. At dinner, there was warmth and affection between them, and when they came home that evening things were "good" and "normal" between them. They played with S. downstairs, and Laura's mother went upstairs to her room. They had sex after they put S. to bed, but Laura seemed "distant" and defendant felt things had changed between them.
In his July 23 and 24 police interview, defendant denied having sex with Laura on July 22.
On July 23, defendant got out of bed around 10:00 a.m. and took S. downstairs to feed her. Laura's mother left the house around 10:30 a.m., and Laura was still upstairs. Defendant began thinking about the night before. He felt he had "lost [his] wife" and could not help thinking of her with someone else. This thought "took over" and he felt he had to listen to the entire July 21 recording. He went to Laura's car, listened to more of the recording, and heard Laura discussing her feelings with T.L. When he heard Laura say to T.L., "'What do you want from me[,]'" he lost his breath and felt betrayed. It was clear that Laura had been unfaithful to him and he wanted to talk to her. He was hoping she had an explanation for what he had just heard.
He went upstairs, and Laura was just coming out of the shower. He told her they needed to talk and she told him to come into the bathroom. He put the recorder on the sink and told her to explain it to him. Laura put her ear to the recorder, then said, "'You fucking put a recorder in my car?'" Defendant could not believe her reaction, and they began to argue. He asked Laura, "'What did he want . . . when you told him, "What do you want me to give you?"'" He said, "'Pleasure; right?'" In a harsh tone, Laura responded, "'[H]e's a better man than you.'" "'You're never going to be at his level. You're just a gardener. He's a cop.'"
Laura's harsh words broke defendant's heart and his "world came crashing down." He felt crushed and humiliated. He had put Laura on a pedestal and thought she was an amazing woman. She was supposed to serve and protect but she could not even be loyal to the family. She was the love of his life, but he was disgusted with her for saying T.L. was a better man than he. He came from a humble family with strong principles.
He also felt enraged. He told Laura, "'You're done. Your career, everything. I'm taking my daughter with me. You're done.' . . . 'You're a false woman. You can stay with him.'" Laura reached for the recorder, saying, "'Give me the fucking recording.'" Defendant pushed her away and she fell back. She got up and said, "'I'll fucking kill you before you take my daughter.'" She went toward her purse, which was on the dresser. Defendant knew she kept a gun in her purse. He went to the closet, got Laura's other gun, her back up Smith & Wesson M&P40, and shot her three times.
When asked "how" or "where" Laura was standing or where she was when he shot her, defendant responded: "She was standing on the—she was pointing the gun at me. She was turning to point the gun at me. I saw the gun in her hand, and I just—I just shot her." On cross-examination, he clarified that Laura was at the dresser, had taken the gun from her purse, and was turning to point the gun at him when he shot her. He was standing by the double doors to the bedroom.
He did not know whether Laura fired a shot before he fired; he just heard the shots and they were loud. His first shot hit her on her side or back. She was on the floor when he shot her the second and third times from close range. He was fearing for his life and fired to defend himself. He was also feeling betrayed by her harsh words. He stopped firing when he saw she was not moving and he came back to his senses. In those moments, he felt like he had lost control. He was also unaware of the extent of Laura's affair until he heard about it in court from T.L.
After he shot Laura, he panicked and did not know what to do. He dragged Laura into the shower. He turned on the water because he did not want to see her bleeding, and he feared S. would come upstairs and find her. He was cleaning her and saying, "'Laura, come back,'" and finally, she was gone. He saw blood coming from her back and realized only then that he had shot her in the back. He wanted to leave and he also wanted to call the police but he feared the authorities would take S. away and put her with people she did not know. He changed his clothes, went downstairs to check on S., and found S. on the computer. He sat S. down at the kitchen table with the computer, got her some snacks, and told her to stay there. S. asked to talk to Laura, but he told S. Laura was sick.
After he checked on S., he knew he was going to leave but he did not want to leave Laura's body in the house. He wasn't able to say good-bye to Laura yet. He went to the garage and got a tarp, wrapped her body in the tarp, took her body downstairs, and put it in the bed of his truck after he backed the truck into the garage and closed the door. Next, he put S. in her car seat in the truck and began putting Laura's belongings into bags. He grabbed his and Laura's passports, the stuffed bear, and "heavy things," including a tool box, ax, and shovel, to weigh down the tarp as he was driving. He put Laura's service handgun, the Glock, back into her purse. Before he left the house, he poured gasoline throughout the house and threw a lighted match at the stairwell.
At trial, defendant insisted he did not know about the money inside the bear, but in his July 23 and 24 police interview, he admitting knowing there was money in the bear.
While driving on Interstate 215 toward his mother's house in Riverside, defendant noticed a storage facility and decided to put the body there. After leaving the storage facility, he stopped by his rental house, then he stopped by his client's house in Riverside. Although he did not ring his client's doorbell or check her sprinklers, he called his client and told her he had done so. He also stopped by his mother's house and called his sister.
At the storage facility, defendant provided the address of his rental property in Riverside, not his home address in Murrieta.
When he returned to the Murrieta house later on July 23, he opened the door and saw smoke, but left to take S. to McDonald's. He returned to the house a second time, called 911, and told his neighbor about the fire. He claimed he started the fire and was saying he believed Laura was in the house to "create a scene" to make S. believe that Laura died in a fire.
He also wanted to spend time with S. before he was arrested, and he knew he was going to be arrested. He did not initially tell the truth about what he had done because he did not know how or where to begin. He acknowledged he did not admit his role in Laura's death until four hours into his five-hour police interview on July 23 and 24. He also claimed he was not initially truthful with the police because he wanted to protect Laura's reputation. He denied he tried to burn the house down to destroy evidence of the shooting. C. Prosecution Rebuttal
In its case-in-chief, the People did not introduce evidence of defendant's interview statements to police during his five-hour police interview on July 23 and 24. After defendant testified, he was thoroughly cross-examined concerning inconsistencies in his trial testimony and his statements during the July 23 and 24 police interview. Following defendant's cross-examination, the defense played a recording of the entire five-hour police interview to the jury.
A police detective testified that possession of a silencer, even by a police officer, is a felony in California, and the barrels of the Glock and Smith & Wesson handguns were not threaded so that a silencer could be attached to them.
III. DISCUSSION
A. CALCRIM No. 570 Accurately Stated the Law of Voluntary Manslaughter Based on Heat of Passion and Did Not Lessen the Prosecution's Burden of Proving Malice and the Absence of Heat of Passion, an Essential Element of the Murder Charge
Defendant claims that CALCRIM No. 570, the pattern instruction on voluntary manslaughter based on heat of passion, "improperly suggested [that] a voluntary manslaughter verdict requires . . . affirmative proof of heat of passion." (Capitalization omitted.) He also argues the instruction impermissibly shifted to him the burden of adducing this "affirmative proof" of heat of passion and, with it, the burden of persuading the jury beyond a doubt that he shot Laura in the heat of passion. Thus, he argues, the instruction both inaccurately stated the law and violated his due process right to have the prosecution prove the malice element of the murder charge beyond a reasonable doubt. (Mullaney v. Wilbur (1975) 421 U.S. 684, 704 ["[T]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case."].) As we explain, we disagree with defendant's interpretation of CALCRIM No. 570.
1. Relevant Background
Defendant was charged with the first degree premeditated murder of Laura. The jury was instructed pursuant to CALCRIM Nos. 500, 505, 520, 521, 570, and 571 on, respectively, the general principles of homicide, self-defense, first and second degree murder with malice aforethought, first degree murder based on premeditation, and voluntary manslaughter based on both heat of passion and imperfect self-defense.
CALCRIM No. 570, the pattern instruction on voluntary manslaughter based on heat of passion, instructed the jury, in part, that: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. [¶] . . . [¶] In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. [¶] . . . [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder."
2. Applicable Legal Principles/Overview
"'Manslaughter is a lesser included offense of murder. (§ 192; People v. Thomas (2012) 53 Cal.4th 771, 813 . . . .) The mens rea element required for murder is a state of mind constituting either express or implied malice. A person who kills without malice does not commit murder. Heat of passion is a mental state that precludes the formation of malice and reduces an unlawful killing from murder to manslaughter. Heat of passion arises if, "'at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.'"' (People v. Beltran [(2013)] 56 Cal.4th [935,] 942, fn. omitted, quoting People v. Barton (1995) 12 Cal.4th 186, 201 . . . .) 'Heat of passion, then, is a state of mind caused by legally sufficient provocation that causes a person to act, not out of rational thought but out of unconsidered reaction to the provocation. While some measure of thought is required to form either an intent to kill or a conscious disregard for human life, a person who acts without reflection in response to adequate provocation does not act with malice.' (People v. Beltran, supra, 56 Cal.4th at p. 942.)
"In a homicide case, the trial court has a sua sponte duty to instruct on voluntary manslaughter as a lesser included offense of murder whenever there is evidence from which a reasonable jury could conclude that a manslaughter, but not a murder, was committed. (People v. Breverman [(1998)] 19 Cal.4th [142,] 162.) This duty includes instruction on voluntary manslaughter due to a sudden quarrel or heat of passion when there is substantial evidence that shows such a theory is relevant. (Id. at p[p]. 154-155.) And it may apply even in cases when the defendant intended to kill. (Id. at p. 163.) But when manslaughter and murder are considered in the same case, provocation and sudden quarrel are not elements of voluntary manslaughter. (People v. Rios (2000) 23 Cal.4th 450, 462 . . . .) Rather, sufficient provocation and sudden quarrel present mitigating circumstances that may afford a defendant 'partial exculpation' for murder that results in a conviction for manslaughter. As explained by our Supreme Court, sufficient provocation either negates the element of malice required for murder or causes it to be disregarded as a matter of law. (People v. Beltran, supra, 56 Cal.4th at p. 942; People v. Bryant (2013) 56 Cal.4th 959, 968 . . . ; see People v. Moye [(2009)] 47 Cal.4th [537,] 549.) . . .
"When malice is an element of murder and heat of passion or sudden provocation is put in issue, the federal due process clause requires the prosecution to prove its absence beyond a reasonable doubt. (Mullaney v. Wilbur (1975) 421 U.S. 684, 704 . . . .) Thus, in California, when a defendant puts provocation in issue by some showing that is sufficient to raise a reasonable doubt whether a murder was committed, it is incumbent on the prosecution to prove malice beyond a reasonable doubt by proving that sufficient provocation was lacking [in order to prove the murder charge]. (People v. Rios, supra, 23 Cal.4th at pp. 461-462 [citing Mullaney].) Mullaney compels the conclusion that failing to so instruct the jury is an error of federal constitutional dimension. (Cf. Patterson v. New York (1977) 432 U.S. 197 . . . .)" (People v. Thomas (2013) 218 Cal.App.4th 630, 642-643.)
3. Analysis
As stated, defendant claims CALCRIM No. 570 violated his due process rights by "improperly suggesting [to the jury] [that] a voluntary manslaughter verdict requires affirmative proof of heat of passion" and by impermissibly shifting to him the burden of adducing such affirmative proof, along with the burden of persuading the jury or proving to the jury beyond a reasonable doubt that he shot Laura in the heat of passion. We disagree with defendant's interpretation of CALCRIM No. 570.
We review claims of instructional error de novo. (People v. Ghebretensae (2013) 222 Cal.App.4th 741, 759.) "'"[T]he correctness of jury instructions is to be determined from the entire charge of the [trial] court, not from a consideration of parts of an instruction or from a particular instruction."'" (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Jurors are also "presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
First, we disagree with defendant's claim that CALCRIM No. 570 shifted to him the burden of proving to or persuading the jury that he shot Laura in the heat of passion. CALCRIM No. 570 told the jury in no uncertain terms that: "The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder." CALCRIM No. 220, the pattern instruction on reasonable doubt, reinforced this point by telling the jury "[a] defendant in a criminal case is presumed to be innocent," and "[t]his presumption requires that the People prove a defendant guilty beyond a reasonable doubt." The jury was also instructed that, to convict defendant of first or second murder, the People had to prove he killed Laura with malice. (CALCRIM No. 520.)
Defendant argues that CALCRIM No. 570 was "misleading" to the extent it told the jury the People had the burden of proving he did not kill Laura in the heat of passion, because the instruction also told the jury that if it had a reasonable doubt about the presence of heat of passion, it had to acquit defendant, when in fact it could have found defendant guilty of voluntary manslaughter. He argues the instruction thus gave the jury "a false choice" of (1) acquitting him of any crime or (2) finding him guilty of murder, if the jury had a reasonable doubt that defendant killed Laura in the heat of passion.
This argument misreads CALCRIM No. 570. The instruction did not tell or suggest to the jury that it had to acquit defendant of "any crime" if it had a reasonable doubt he killed Laura in the heat of passion. Rather, it told the jury it had to find defendant not guilty of murder if the People failed to prove "beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion." The instruction thus left open to the jury the option of finding defendant guilty of voluntary manslaughter based on heat of passion if it had a reasonable doubt that defendant killed Laura with malice. This was in accordance with the law. As explained in People v. Rios (2000) 23 Cal.4th 450 at page 463, a voluntary manslaughter conviction "can be sustained under instructions which require, and evidence which shows, that the defendant killed intentionally and unlawfully," and "[t]he People need not further prove beyond reasonable doubt, as an element of the manslaughter offense, that the defendant was provoked or unreasonably sought to defend himself."
The jury was also instructed pursuant to CALCRIM No. 640 that it could not convict defendant of voluntary manslaughter unless it first unanimously concluded that he was not guilty of murder. This further clarified for the jury that it could convict defendant of voluntary manslaughter if it had a reasonable doubt he was guilty of murder. Thus, CALCRIM No. 570, when read together with CALCRIM No. 640, did not present the jury with an "all or nothing choice" of convicting defendant of either murder or no crime, if it had a reasonable doubt he acted in the heat of passion.
We also disagree that CALCRIM No. 570 told or suggested to the jury that it had to find "affirmative proof" that defendant killed Laura in the heat of passion in order to find defendant guilty of voluntary manslaughter rather than murder. (People v. Lee (1999) 20 Cal.4th 47, 81 (dis. opn. of Kennard, J.) [noting that, under former CALJIC instructions similar to the CALCRIM instructions given here, "the jury was to return a verdict of voluntary manslaughter if it found an unlawful intentional killing but found that the prosecution had not proven beyond a reasonable doubt the absence of heat of passion. The jury was not required to find affirmative proof of the presence of heat of passion as an element of voluntary manslaughter." (Italics added.)]; People v. Rios, supra, 23 Cal.4th at p. 463 [voluntary manslaughter verdict may be upheld based solely on evidence of intentional and unlawful killing, and the People are not also required to prove the defendant killed in the heat of passion or imperfect self-defense].) CALCRIM No. 570 does not use the term "affirmative proof." Nor can the instruction reasonably be construed as requiring a jury to find affirmative proof of heat of passion as a precondition of reducing what would otherwise be murder to voluntary manslaughter.
Defendant maintains that the first line of CALCRIM No. 570 erroneously suggested to the jury that it had to "affirmatively find evidence of heat of passion" in order to find him guilty of voluntary manslaughter rather than murder. The first line of the instruction states: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion." (Italics added.) Defendant argues that because CALCRIM No. 520 also told the jury that an unlawful, intentional killing constitutes murder, the first line of CALCRIM No. 570 impermissibly suggested that "once an unlawful intentional killing is established, it is ordinarily murder unless the evidence shows that the defendant killed because of a sudden quarrel or heat of passion." (Italics added.) That is, defendant argues that CALCRIM No. 570, in combination with CALCRIM No. 520, told the jury "to presume that an unlawful intentional killing is murder unless heat of passion is proved." (Second italics added.) Defendant also argues that a subsequent line in CALCRIM No. 570 "reinforced this erroneous idea." That line told the jury: "In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation . . . ." (Italics added.)
Defendant's argument reads words and directives into CALCRIM Nos. 520 and 570 that are not present in either instruction. Neither CALCRIM Nos. 520, 570, nor any of the other given instructions, instructed the jury, or could reasonably be construed as instructing the jury, either (1) that an unlawful, intentional killing constitutes murder or "ordinarily" constitutes murder; (2) to "presume" that an unlawful, intentional killing is murder unless there is "affirmative proof" that the killing occurred in the heat of passion; or (3) it was defendant's burden to prove to or persuade the jury beyond a reasonable doubt that he killed Laura in the heat of passion.
We are mindful that, in a murder case, "unless the People's own evidence suggests that the killing may have been provoked or in honest response to perceived danger, it is the defendant's obligation to proffer some showing on these issues sufficient to raise a reasonable doubt of his guilt of murder. (§ 189.5, subd. (a); [citations].)" (People v. Rios, supra, 23 Cal.4th at pp. 461-462.) Upon such an affirmative evidentiary showing, by either the defendant or the People's own evidence, "the issue of provocation [i.e., heat of passion] or imperfect self-defense is thus 'properly presented'" to the jury, and this requires the People to prove beyond a reasonable doubt that heat of passion and imperfect self-defense were lacking, in order to establish the malice element of murder. (Id. at p. 462, citing Mullaney v. Wilbur, supra, 421 U.S. at pp. 703-704.)
CALCRIM No. 570 is entirely consistent with these principles. Defendant's claim that the instruction impermissibly suggested to the jury that it was his burden to both adduce affirmative proof of heat of passion and to prove to or persuade the jury beyond a reasonable doubt that he killed Laura in the heat of passion—in order for the jury to find him guilty of voluntary manslaughter rather than murder—is at odds with the plain language of the instruction and the other instructions given in this case. B. CALCRIM No . 505 Accurately Stated the Law of Self-defense
Defendant next claims CALCRIM No. 505, the pattern instruction on self-defense, violated his due process rights. He claims the trial court prejudicially erred in giving the instruction because it erroneously told the jury that "self-defense does not apply unless the defendant acted only because of the belief that he or another was in danger . . . ." (Italics added & capitalization omitted.)
CALCRIM No. 505 instructed the jury, in part, that: "The defendant is not guilty of murder or manslaughter if he was justified in killing someone in self-defense. The defendant acted in lawful self-defense if: [¶] 1. The defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury; [¶] 2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of death or great bodily injury to himself. Defendant's belief must have been reasonable and he must have acted only because of that belief . . . ." (Italics & underlining added.)
Defendant claims these two italicized sentences of CALCRIM No. 505 incorrectly instructed the jury that self-defense did not apply unless he killed only because he believed his life was in danger. He claims the instruction should have also instructed the jury, or the jury should have been further instructed, that he lawfully killed Laura in self-defense if he harbored an emotion other and in addition to fear, including anger, when he shot and killed her.
The court in People v. Trevino (1988) 200 Cal.App.3d 874 (Trevino) concluded that former CALJIC No. 5.12, the predecessor instruction to CALCRIM No. 505, correctly stated the law of self-defense by requiring that the party who killed must have had an honest and reasonable belief in the need for self-defense or the defense of another, and, in killing, must have "act[ed] under the influence of such fears alone." (Trevino, supra, at p. 879; §§ 197, 198.) Defendant points out that, in so holding, the Trevino court expressly stated it did not "mean to imply that a person who feels anger or even hatred toward the person killed, may never justifiably use deadly force in self-defense. . . . [¶] In [some] situations . . . it would be unreasonable to require an absence of any feeling other than fear, before the homicide could be considered justifiable. Such a requirement is not a part of the law, nor is it a part of CALJIC No. 5.12. Instead, the law requires that the party killing act out of fear alone. . . ." (Trevino, supra, at p. 879.) But because CALJIC No. 5.12 did not "eliminate a feeling of anger or any other emotion so long as that emotion was not part of the cause of the use of deadly force[,]" it correctly stated the law. (Trevino, supra, at p. 880.)
The same can be said of CALCRIM No. 505. It correctly stated the law by requiring that a defendant who kills in self-defense must have reasonably "believed there was imminent danger of death or great bodily injury to himself" or to another person, and "must have acted only because of that belief . . . ." (Italics & underlining added.) (Trevino, supra, 200 Cal.App.3d at p. 879.) And, like former CALJIC No. 5.12, CALCRIM No. 505 did not prohibit the jury from finding defendant killed Laura in self-defense if he harbored an emotion other than fear for his life, including anger. It only required that the killing be based solely on reasonable and honest belief in the need to defend his own life. (Trevino, supra, at p. 880.)
Defendant observes that, in People v. Nguyen (2015) 61 Cal.4th 1015, our state high court "left open the question" whether the jury in that murder case should have been instructed that "acting based on mixed motives is permissible so long as reasonable fear was the but-for cause of [the] decision to kill." (Id. at p. 1046.) Like defendant here, the defendant in Nguyen did not raise this claim in the trial court or on appeal. (Id. at p. 1046.) Thus, the Nguyen court had "no occasion to consider whether such a rule would be consistent with section 198 as interpreted in Trevino or other cases." (Ibid.)
Defendant argues "[t]he question left open in Nguyen should be resolved in this case by interpreting [section 198] as providing that a homicide based on mixed motives is justifiable so long as reasonable fear was a substantial cause of the decision to kill." (Italics added.) He argues this court should adopt the "substantial factor" test, applicable to "cause-in-fact determinations" in tort cases (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968-969), in interpreting section 198. We decline to so interpret section 198.
A discussion of section 198 must begin with section 197, which states, in part, that: "Homicide is . . . justifiable when committed by any person in any of the following cases: [¶] . . . [¶] 3. When committed in the lawful defense of such person . . . when there is reasonable ground to apprehend a design to . . . do some great bodily injury, and imminent danger of such design being accomplished . . . ." Section 198 states: "A bare fear of the commission of any of the offenses mentioned in subdivision[] . . . 3 of Section 197, to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone." (Italics added.)
The phrase "such fears alone," as used in section 198, plainly does not permit adopting a rule that a homicide is justifiable in self-defense if the defendant's honest and reasonable fear for his life (or for the life of another) is only a substantial factor for the killing, rather than the sole basis for the killing. As Nguyen indicated, such a rule would be inconsistent with decades of California case law which has interpreted "such fears alone" in section 198 to "'limit[] the right to take the life of another in self-defense to cases where the act is done under the influence of fear of the danger designated.'" (People v. Nguyen, supra, 61 Cal.4th at p. 1045, citing, e.g., People v. Vernon (1925) 71 Cal.App. 628, 629.)
Defendant also claims that section 198 must be interpreted "in accord with the common law" and state and federal constitutional right to defend one's life from imminent danger, and due process. We discern no inconsistencies between our interpretation of section 198 and the common law of self-defense, the state and federal constitutional right to defend one's life from imminent danger, or due process. C. The Instructions Did Not "Wrongly Imply" that Defendant Was Guilty of Murder if He Had "Mixed Motives" When He Shot and Killed Laura
Defendant also asserts his trial counsel rendered ineffective assistance in failing to object to CALCRIM No. 505 as given. We consider this claim waived or forfeited because it is not supported with reasoned argument or citation to authority. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)
Lastly, defendant claims CALCRIM Nos. 505, 520, and 571 "wrongly implied that if [he] reasonably believed he needed to kill [Laura] to save his own life, but [he] did not act only because of that fear, then he was guilty of murder," not voluntary manslaughter. We disagree. As explained, CALCRIM No. 505 did not prohibit the jury from finding defendant killed Laura in self-defense if he harbored an emotion other than fear for his life, including anger. It only required that the killing was based solely on a reasonable and honest belief in the need to defend his own life. (See Trevino, supra, 200 Cal.App.3d at pp. 879-880.) Nor did the instructions "lower[] the prosecution's burden of proving malice," as defendant also claims. CALCRIM No. 520 instructed the jury that a murder conviction requires proof of malice and that the killing was also "without lawful justification."
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. McKINSTER
J.