Opinion
D058129 Super. Ct. No. SCD199612
04-10-2012
THE PEOPLE, Plaintiff and Respondent, v. GILDARDO RODRIGUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Bernard E. Revak, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
INTRODUCTION
A jury convicted Gildardo Rodriguez of second degree murder (Pen. Code, § 187, subd. (a)). The jury also found true allegations Rodriguez personally used a knife to commit the murder (Pen. Code, § 12022, subd. (b)(1)). The trial court sentenced Rodriguez to a determinate term of one year in prison for the weapon use enhancement finding plus a consecutive indeterminate term of 15 years to life for the second degree murder conviction.
Rodriguez appeals, contending the trial court deprived him of his constitutional rights to due process of law and a jury trial by denying his request to modify the CALCRIM No. 570 voluntary manslaughter instruction and failing to inform the jury the permissible inferences discussed in CALCRIM No. 852 also applied to voluntary manslaughter. We conclude both arguments lack merit and affirm the judgment.
BACKGROUND
Prosecution Evidence
Prior Domestic Violence Acts
Emilia Gomez's mother, Alejandra Chavelas Garcia, testified Gomez started dating Rodriguez when Gomez was 13 years old. They married when Gomez was 16 years old; they have three children together. Garcia saw Gomez every day. Gomez was not happy being married to Rodriguez because, after they married, he started hitting her.
Garcia saw Rodriguez hit Gomez approximately 10 times. Once, when Garcia was at Gomez's home, she found Gomez on the floor with her blouse torn, a bruise on her face, a bloody nose, and a bump on her forehead. She saw Rodriguez kick Gomez about four times.
On another occasion, eight years before the trial, Garcia saw Rodriguez kick Gomez five times and beat her with his fist and a belt. When Garcia tried to intervene, Rodriguez kicked Garcia in the stomach.
Sometimes when Gomez visited Garcia, Garcia saw bruises on Gomez's hands and face. The abuse continued until Rodriguez left Mexico in 2000 for the United States.
In December 2005 San Diego police officers responded to a domestic violence call at Rodriguez's apartment. Gomez was crying, scared, and nervous. She had reddening of the skin and bruising around her throat. Rodriguez had a minor cut on his left bicep and abrasions on his knee.
Rodriguez told the officers Gomez had been on the telephone with a man. Because she had cheated on him in the past, he demanded to know the caller's identity. Gomez ignored him and he slapped her. Based on Rodriguez's remarks and Gomez's injuries, one of the officers arrested Rodriguez as the primary aggressor.
Rodriguez subsequently told the arresting officer that Gomez had tried to leave after he confronted her about the phone call. He grabbed her and slapped her across the face. She hit him back. He then pushed her backwards onto the bed, jumped on top of her, and tried to calm her down by grabbing her around the neck. She grabbed a pencil and stabbed him in the left bicep and kicked him in the knee. She called 911 and he ripped the phone cord out of the wall because he was the man of the house and did not want any help with his family from the police.
One of Gomez's coworkers noticed Gomez was always sad. Gomez told the coworker she was afraid of Rodriguez because he abused her, although the coworker never saw bruises on Gomez or marks on her face. Gomez also told the coworker she was seeing another man and Rodriguez had said if Rodriguez could not have her, no one could. Rodriguez admitted making this statement to Gomez, but denied he meant it as threat or that he was thinking about killing Gomez at the time.
Gomez's Stabbing
Rodriguez came to the United States in 2000. He lived with his brothers Francisco Rodriguez (Francisco) and Jaime Rodriguez (Jaime) Approximately two years later, Gomez joined him. She was pregnant with another man's baby. At first, Rodriguez was angry about the baby and told her he would not have brought her to the United States if he had known of her pregnancy. They talked about putting the baby up for adoption, but after she was born, Rodriguez grew to love her and they kept her.
While Rodriguez and Gomez lived with him, Francisco did not see them argue or fight. He did not see Francisco hit Gomez and he did not see any bruises on her. However, a neighbor and family friend who saw them frequently testified Rodriguez and Gomez had obvious relationship problems.
At some point before the 2005 domestic violence incident, Rodriguez began dating another woman and Gomez began dating a man named Carlos. Rodriguez knew about Gomez's relationship with Carlos and it angered him. Several times the phone would ring and no one would be on the other line. Then it would ring again, and Gomez would answer and have a conversation with the caller.
After the domestic violence incident in December 2005, Rodriguez was deported to Mexico and Gomez moved out of the apartment she had been sharing with Rodriguez and his brothers. She continued to date Carlos.
Rodriguez returned to the United States, moved back in with Francisco, and periodically saw Gomez. Francisco advised Rodriguez to be careful about continuing his relationship with Gomez as a tragedy could happen.
In mid-May 2006 Gomez rented a room in an apartment a block or two from Rodriguez's apartment. Rodriguez visited Gomez almost every evening. Gomez's landlord, Martha Flores Salgado, never saw Rodriguez spend the night. Salgado never saw Rodriguez fight with Gomez and Gomez appeared happy when Rodriguez visited her.
In the morning, on June 10, 2006, Rodriguez, Gomez, and Gomez's daughter returned to the apartment from an outing and went to Gomez's room. They all appeared happy. Later in the afternoon, Gomez was in her room with her daughter while Rodriguez was outside the house cutting a coconut with one of Salgado's kitchen knives. Salgado left the apartment around then. Salgado returned between 10:00 p.m. and 10:30 p.m. The light was on in Gomez's room, which was unusual. Salgado went to sleep and awoke at 3:00 a.m. The light was still on. Because the light was still on in the morning, Salgado asked one of her sons to open the door, reach into the room, and turn off the light. He told Salgado that Gomez was still lying down. Salgado thought this was unusual since Gomez was supposed to go to work, so she went inside Gomez's room. Gomez's daughter was missing and Gomez was completely wrapped in blankets. Salgado uncovered Gomez's face, touched her forehead, and concluded she was dead.
When a police officer arrived, the officer found Gomez's body in the corner of her room. Some of her blood was spattered on the walls near her body. She had cuts on her body and blood on her chest and arms. She was fully clothed, lying face up, and covered with a blanket. A large kitchen knife with her blood on it, the same knife Rodriguez had been using to cut the coconut, lay on the left side of her body.
There were photographs strewn outside in the front of the house. Some of the photographs were of Gomez, Rodriguez, and Gomez's daughter. One of the photographs was of two of Rodriguez and Gomez's children. There was a broken frame and additional torn photographs in Gomez's room. Rodriguez said he tore some of the photographs and Gomez tore others.
A deputy medical examiner determined Gomez died from multiple stab wounds. Autopsy results showed Gomez had a recent blunt force injury to her mouth. The injury was consistent with her being punched or with someone putting a hand over her mouth and pressing it shut so she could not make a noise. In addition, she had numerous knife wounds, most of which were in her abdomen and chest. The wounds were consistent with being caused by the knife found next to Gomez's body.
Approximately eight days after Garcia learned of Gomez's death, Rodriguez telephoned Garcia and told her he had killed Gomez by stabbing her. He also told her to pick up Gomez's daughter from Mexican authorities.
Approximately three years later, a Missouri jail notified the San Diego Police Department Rodriguez was in custody. Detectives traveled to Missouri to interview and extradite Rodriguez. During the interview, Rodriguez initially claimed he was not involved in Gomez's murder. He subsequently admitted stabbing her.
Rodriguez said that about 10 days before he stabbed Gomez, he dropped Gomez off after returning from a casino and rested outside in the car for 10 to 15 minutes. While he was resting, he saw Gomez open her bedroom window for Carlos. Rodriguez stopped Carlos and the two men fought each other. Rodriguez told Carlos to leave Gomez alone because she and Rodriguez had children. Carlos told Rodriguez that Gomez did not love Rodriguez.
According to Rodriguez, on the day he killed her, Gomez belittled him and said "a lot of things that hurt [him]" before he stabbed her. She said Carlos was more of a man and she felt more sexually with Carlos than with him. She said Rodriguez was and would always be an idiot. She said she did not care about their children, she did not want to see him any more, and she did not want him to see her daughter again. She said she spent the money he sent to her in Mexico on the man who impregnated her. After she said these things, he started to gather his belongings, including some photographs he had brought over to persuade her to change her mind, but they kept arguing. She stood at the door and kept provoking him until he exploded.
He picked up the knife, which he saw when he was gathering his belongings, knelt down, and stabbed her about four times in the stomach as she was sitting on the floor. He denied stabbing any other area of her body. After he stabbed her, Gomez told him she was entrusting their children to him, but he did not believe her because she never loved them or had time for them. She rolled herself up in a blanket.
Afterwards Rodriguez left with Gomez's daughter, who had been playing in the room while the stabbing occurred, and went to Mexico.
Defense Evidence
Rodriguez and Gomez spoke with Rodriguez's brother, Jaime, on the phone around 2:30 p.m. the day of the stabbing. Rodriguez sounded normal, but Gomez sounded tired and agitated. Rodriguez called Jaime later that night and sounded desperate.
Gomez told Reina Barrios (Reina), with whom Gomez and Rodriguez briefly lived when Gomez first came to the United States, that her pregnancy was the result of a rape. Gomez also told Reina that Rodriguez was angry about the pregnancy. Reina told a police detective that sometimes Rodriguez would argue with Gomez and make her cry. Gomez's relationship with Carlos was common knowledge.
Ana Barrios (Ana) was Carlos's roommate. She saw Gomez visit Carlos twice and he told her he was dating Gomez. Ana knew Gomez was married to Rodriguez. She told Gomez not to visit anymore because she did not want any trouble.
Rodriguez testified he and Gomez met through their mothers, who were friends. He was four years older than Gomez and, at first, they were just friends. After they became romantically involved, Gomez became pregnant and they married. He initially testified their relationship was good and they did not argue. On cross-examination, however, he admitted he and Gomez fought and he beat Gomez on a few occasions when they lived in Mexico, but he denied he ever left her with bruises.
According to Rodriguez, the argument Garcia witnessed occurred because Garcia told Gomez that Rodriguez was looking at another woman. He admitted yelling at and pushing Gomez. Garcia grabbed him by the hair and he pushed her to get her to release his hair. He denied the argument involved any kicking or punching. He also denied Garcia's assertion that he was always beating Gomez.
He admitted he and Gomez argued a couple of other times when they were living in Mexico. He denied the arguments became physical, although sometimes they would throw shoes and other items at one another. He denied ever previously threatening Gomez with a knife and did not remember ever bruising her or cutting her.
He came to the United States in 2000. He eventually found work and sent most of his earnings to Gomez believing she was saving the money. He missed Gomez and was very happy when she joined him in the United States. When he learned she was pregnant, he was angry and drank a lot of beer. He denied his anger prompted him to hit her. She told him she had been raped and they talked about giving the baby up for adoption. After the baby was born, Rodriguez came to love her and they decided to keep her.
As the baby grew older, Gomez started going out a lot and they started having problems with their relationship. He heard rumors of her having an affair. In addition, when the phone rang and he or one of his brothers answered it, there would be no one on the other line. But, when Gomez answered the phone, there would be someone on the line.
In December 2005 he received two of the phantom phone calls. When the phone rang a third time, he had Gomez answer the phone and someone was on the line. A few days earlier he had found a torn up love letter written by Gomez to Carlos. He became angry and demanded to speak to the person on the phone. She would not let him, they struggled, and he unplugged the phone. They started to argue, he pushed her toward the bed, and they started hitting one another. She grabbed a pencil and stabbed in him the arm. He hit her and grabbed her neck to "calm her down." The police came and arrested him, he pleaded guilty to criminal charges, and, after he served some jail time, he was deported. He returned to the United States and their apartment eight days later. She moved out a week later.
Nonetheless, they decided to continue their relationship. He visited her regularly, continued to financially support her, and continued to treat her daughter as his own. They started arguing again, but were occasionally intimate and Gomez never indicated she no longer wanted to see him.
At some point, he started dating another woman who lived near Gomez. Meanwhile, the rumors about Gomez's relationship with Carlos continued. The rumors bothered Rodriguez and he confronted her about them, but she denied the relationship.
A week or two before Rodriguez stabbed Gomez, he dropped her off after an outing and, even though he lived close by, he decided to rest in his car for five to 10 minutes. While he was resting, he saw Carlos walking toward the apartment and Gomez's window opening. He started "thinking really bad thoughts and [his] blood [was] boiling." He got out of his car and approached Carlos. Carlos admitted he was dating Gomez and the two men got into a fistfight. Carlos knocked him down with a grocery cart and left.
The next day he went to see Carlos and told him to leave Gomez alone because they were married and had children. Carlos told Rodriguez that Gomez preferred him. Gomez's relationship with Carlos made Rodriguez angry.
Rodriguez had previously confronted Carlos at a liquor store. The two men yelled "strong words" at one another. Rodriguez told Carlos to stop bothering Gomez because Gomez was with him. Carlos denied he was seeing Gomez.
The evening before Rodriguez stabbed Gomez, he and Gomez went to a casino. She constantly received phone calls, but would not answer them in his presence, which made him suspicious. After the outing, they picked up Gomez's daughter and he dropped Gomez and her daughter off at Gomez's apartment. He went home, returned the next morning, and took Gomez's daughter on an outing.
He returned once, left with Gomez's daughter again, returned around noon, and started watching television with Gomez's daughter. Gomez appeared to want to talk about something, but did not know how to start. When she left the room, he went to look in her drawer for a cell phone he had seen a few days earlier, which he thought was a Father's Day gift for him. She came back into the room and asked him what he was doing. He told her he was looking for his gift and she told him it was not for him.
He then thought the gift was for Carlos and became angry. They started arguing. They argued about the phone and about him sending money to his sister to take care of their children living in Mexico. She told him she only cared about her baby daughter because, through her, she could obtain papers allowing her to stay in the United States, but she could not expect anything from their children living in Mexico. She also told him she had not been raped, which surprised and humiliated him. He then became very angry and slapped her. She tried to slap him back, but he blocked her.
The argument became more heated. He asked if she was seeing Carlos and she admitted she was. They continued arguing and pushed one another.
She told him about her relationship with Carlos and that she was spending the money Rodriguez gave her on Carlos. It appeared to Rodriguez that Carlos had told her to make a decision and she had done so. Rodriguez became very angry and hit her again. She laughed and mocked him.
Realizing he should leave, he told her he was going and started gathering his belongings. She blocked the door with her arms and kept mocking and humiliating him by talking about Carlos. She said Carlos was better than Rodriguez, he made her feel more of a woman than Rodriguez did, and she was more comfortable with him.
He pushed her aside and to her knees, but she got up and blocked the door again. She also grabbed his bag and held on to it. He threw the bag and they started arguing again. They continued to talk about her infidelity and he started crying. She was his first girlfriend and lover and her betrayal hurt him. He also felt guilty about leaving her in Mexico to come to the United States, thinking she might not have gotten pregnant if he had stayed there with her.
He reminded her of everything he had done for her. She responded with mock sympathy and called him stupid and an idiot. She told him she regretted having a relationship with him. All of her remarks hurt him. The last remark made his blood boil. On cross-examination, he admitted he wanted to be with Gomez and could not stand the thought of her being with another man.
He knelt down and she squatted. She kept repeating her remarks about liking Carlos better than him and told him he was "very stupid" because she and Carlos had been seeing each other for awhile. He told her to shut up. He had a weapon in his hand at that point, but he was scared about having it and threw it on the floor. He picked it up and threw it down a second time. Then, he started to collect his belongings again and told her he was leaving. He asked if this was the end of their relationship. She said it was as she had made a decision and picked Carlos.
He suggested they go back to Mexico and start over. She told him that she had found the man she always wanted to have. They started arguing strongly again and he went down on his knees again. She also knelt down and kept talking about Carlos, her sexual relationship with Carlos, and Carlos being more of a man than him. Then she told him to "get the hell out of [there]," to never come back again or see her daughter again, and to "[g]o fuck [his] sister" since she was the one taking care of their children.
At those words he became even angrier and his blood was boiling. He picked up the weapon for the third time. She asked him if he intended to kill her. When he did not respond, she grabbed his hand that was holding the weapon, put it to her stomach and mocked him, saying he was not man enough to do it. He started stabbing her to shut her up.
When it was over, he stayed next to her for 15 minutes crying and thinking about taking his own life. Then, he gathered some clothing for Gomez's daughter and some other things, including some photographs he and Gomez had torn during their argument. After standing outside the apartment for approximately another 15 minutes, he drove away with Gomez's daughter and returned to Mexico.
He and Gomez argued for about two hours before he killed her. While he felt defeated at times and thought about leaving, he told himself that he needed to stay and fight for her. In addition, she blocked the door at times, although he admitted she was much smaller than him and he could have easily moved her out of the way. At the conclusion of his testimony, when the prosecution asked whether the reason he killed Gomez was because he did not want anyone else to have her, he responded, "More than anything, her words were very hurtful to me."
DISCUSSION
I
Denial of Modification of CALCRIM No. 570
A
Defense counsel requested the trial court modify the CALCRIM No. 570 voluntary manslaughter instruction to include a pinpoint instruction informing the jury, "Provocation may be based on a sudden and violent quarrel, verbal taunts by an unfaithful wife, and the infidelity of a lover." Defense counsel made the request because the prosecutor had stated in her opening statement that words had prompted Rodriguez to kill Gomez and defense counsel wanted the jury to be informed that words, in appropriate circumstances, could constitute sufficient provocation for voluntary manslaughter."
The prosecutor objected to the pinpoint instruction, arguing the pattern instruction adequately instructed the jury on the applicable law. The trial court thought the references in the pinpoint instruction to "unfaithful wife" and "infidelity of a lover" were argumentative; however, the trial court considered whether to include an explanation that provocation could be verbal or physical. The trial court ultimately decided not to modify CALCRIM No. 570.
B
Rodriguez contends the trial court erred by refusing to give the proposed pinpoint instruction to the extent it would have informed the jury provocation may be based on words and verbal taunts. We conclude the trial court properly refused to give the pinpoint instruction and, even if the trial court had erred in refusing the instruction, the error was harmless.
Rodriguez concedes the trial court properly rejected the "unfaithful wife" and "infidelity of a lover" language contained in the proposed pinpoint instruction as argumentative.
" ' "[A] defendant has a right to an instruction that pinpoints the theory of the defense . . . ." ' [Citation.] The court may, however, 'properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence.' " (People v. Burney (2009) 47 Cal.4th 203, 246; accord, People v. Bivert (2011) 52 Cal.4th 96, 120; People v. Canizalez (2011) 197 Cal.App.4th 832, 856-857.)
In this case, CALCRIM No. 570, as given by the trial court, informed the jury that murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. The instruction additionally informed the jury that for a killing to be the result of a sudden quarrel or in the heat of passion: (1) the defendant must have been provoked; (2) the defendant must have acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; and (3) the provocation must be sufficient to have caused a person of average disposition to act rashly and without deliberation. The instruction clarified that no specific type of provocation was required as long as the provocation was not slight or remote and was such that a person of average disposition in the same situation knowing the same facts would have reacted from passion rather than judgment. The companion CALCRIM No. 522 instruction informed the jury that the weight and significance of any provocation was for the jury to decide. A reasonable jury would have understood from these instructions that verbal conduct, in appropriate circumstances, could constitute sufficient provocation. Consequently, any further instruction by the trial court on this point was unnecessary. (People v. Clark (2011) 52 Cal.4th 856, 974-975 [a trial court is not required to give a pinpoint instruction on a matter adequately covered in other instructions]; People v. Canizalez, supra, 197 Cal.App.4th at p. 856-857 [same].)
Specifically, the trial court instructed the jury, "Provocation may reduce a murder from first degree murder to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder.
"Also consider the provocation in deciding whether the defendant committed murder or manslaughter. 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. [¶] The defendant killed someone because of a sudden quarrel or in the heat of passion if, one, the defendant was provoked, two, as a result of provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment, and three, the provocation would have caused a person of average disposition to act rashly and without deliberation, that is, from passion rather than from judgment.
"Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. 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. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient.
"In deciding whether the provocation was sufficient, consider whether a person of average disposition in the same situation and knowing the same facts would have reacted from passion rather than from judgment. If enough time passed between the provocation and the killing for a person of average disposition to cool off and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis. The people have the burden of proving beyond a reasonable doubt that the defendant did not kill as a 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."
Even if the trial court should have given a pinpoint instruction on this point, the error was harmless. Defense counsel's closing argument fully presented the defense theory that Gomez's remarks homicidally enraged Rodriguez and nothing in the trial court's instructions precluded the jury from finding Gomez's remarks to be sufficient provocation. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1144-1145.)
The prosecutor's remarks during her opening statement and closing argument do not alter our conclusions. The trial court instructed the jury that the jury must follow the law as the trial court explained it. The trial court also instructed the jury that if the attorneys' comments on the law conflicted with the trial court's instruction, the jury must follow the trial court's instructions. We presume the jury followed these instructions and relied on the trial court's explanation of the law, not counsel's arguments, in convicting Rodriguez. (People v. Morales (2001) 25 Cal.4th 34, 47.) This presumption is particularly strong in this case because the trial court instructed the jury on the applicable law after counsel concluded closing argument.
In her opening statement, the prosecutor remarked, "You might ask yourself why did the defendant do this? Why did he brutally murder [Gomez] that day? To put it simply: words." A short time later, the prosecutor remarked, "That afternoon of the murder, [Rodriguez] and [Gomez] got into an argument about their relationship. Words were exchanged, common words that are sometimes used during a break up or in a heated argument in a relationship. To quote the defendant he said, 'It was just words that hurt me. It's just words that got to me.' " Near the conclusion of her opening statement, the prosecutor described Rodriguez's confession and remarked, "[Rodriguez] said, 'She said a lot of things to hurt me. It was just words that hurt me. It was just words that got to me.' That was his explanation of why he killed [Gomez.]" The prosecution concluded her opening statement by assuring the jury the evidence was going to prove beyond a reasonable doubt Rodriguez murdered Gomez and that the words Gomez said to Rodriguez were "in no way sufficient provocation to kill her." Rodriguez does not contend the prosecutor's remarks amounted to misconduct and, considered in context, the remarks properly reflected the prosecutor's expectation of what the evidence would show in this case.
In her closing argument, the prosecutor addressed Rodriguez's testimony about Gomez's verbal taunts in two ways. The prosecutor argued the jury should not believe Rodriguez's testimony because his testimony differed significantly from his postarrest statements, he embellished upon the taunts as he testified, and it was unreasonable under the circumstances to believe Gomez taunted him in the manner he described while he had a knife in his hand. In addition, after defense counsel argued Gomez's verbal taunts were not sufficiently provoking because they contained shocking revelations and were particularly hurtful to someone from Rodriguez's culture and background, the prosecutor argued, "Defense counsel says, well, this is—you got to take into consideration the psychology of a woman and a man. And, you know, the fact that verbal taunts and infidelity, that equates [to] heat of passion. Can you imagine, I'm sure every one of us in this courtroom knows someone who's gone through a messy divorce, an ugly breakup, if you yourself have not gone through it yourself. Can you imagine if that was a justification, every time you got into a horrible divorce and you killed someone, oh, heat of passion. That's it. There would be bodies everywhere." The prosecutor then rhetorically asked whether, even if Gomez had insulted Rodriguez to the point he became homicidally enraged, "a person of average disposition, knowing the same facts, same situation, [would] act in that rage and kill?" Moreover, she argued the jury should not consider Rodriguez a person of average disposition because of his domestic violence history. Again, Rodriguez does not contend the prosecutor's remarks amounted to misconduct and they "fell within the 'wide latitude' of advocates 'to make fair comment upon the evidence.' " (People v. Blacksher (2011) 52 Cal.4th 769, 830.)
II
Failure To Instruct Jury Prior Domestic Violence Acts
May Support Voluntary Manslaughter Conviction
A
Consistent with Evidence Code section 1109 and the CALCRIM No. 852 instruction, the trial court informed the jury, "The People presented evidence that the defendant committed domestic violence that is not charged in this case, specifically, the December 2005 incident, and various incidents in Mexico. Domestic violence means abuse committed against an adult who has a spouse, [or a] person with whom the defendant has had a child. Abuse means intentionally or recklessly causing or attempting to cause bodily injury or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. [¶] . . . [¶]
Further statutory references are also to the Evidence Code unless otherwise stated.
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"If you decide that the defendant committed the uncharged domestic violence, you may, but you are not required to conclude from that evidence that the defendant was disposed or inclined to commit domestic violence, and based on that decision also conclude that the defendant was likely to commit and did commit murder as charged here. [¶] If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of murder. The people must still prove the charge beyond a reasonable doubt. Do not consider this evidence for any other purpose except for the limited purpose of determining the defendant's credibility."
B
Rodriguez contends the trial court erred by failing to include voluntary manslaughter, along with murder, as an offense the jury could conclude Rodriguez was likely to commit and did commit based on his prior acts of domestic violence. Rodriguez has forfeited this contention because, although he objected to the trial court giving CALCRIM No. 852 at all, he never requested the trial court clarify or amplify the instruction after the court overruled his objection. " ' "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. Castenda (2011) 51 Cal.4th 1292, 1348.)
Even if Rodriguez had not forfeited this contention, we conclude it lacks merit. Subject to certain exceptions and as long as it is otherwise admissible under section 352, evidence of a defendant's prior acts of domestic violence is generally admissible in a criminal action in which a defendant is accused of an offense involving domestic violence. (§ 1109, subd. (a).) "The purpose behind section 1109 is to address the difficulties of proof in domestic violence prosecutions and the repetitive nature of domestic violence." (People v. Ogle (2010) 185 Cal.App.4th 1138, 1145, fn. 3.)
A domestic violence offense is an offense in which the defendant has: (1) abused a statutorily specified victim, including a current spouse or a person with whom the defendant has a child; (2) by (a) intentionally or recklessly causing, or attempting to cause the victim great bodily injury, or (b) placing the victim in reasonable apprehension of imminent serious bodily injury to himself or herself, or another. (§ 1109, subd. (d)(3); Pen. Code, § 13700, subds. (a) & (b); Fam. Code, § 6211.) Murder is a domestic violence offense. (People v. Brown (2011) 192 Cal.App.4th 1222, 1225.) Accordingly, the evidence of Rodriguez's prior acts of domestic violence was generally admissible under section 1109 as to the murder charge.
The parties have not cited nor have we located any cases discussing whether voluntary manslaughter under a heat of passion theory is a domestic violence offense as to which section 1109 evidence is admissible. We need not decide the matter because, even assuming it is, we conclude the trial court was not required to include voluntary manslaughter in CALCRIM No. 852 for several reasons. First, nothing in the language of section 1109, the authorities interpreting it, or the other authorities Rodriguez relies upon requires a trial court to automatically instruct the jury the evidence admitted under this section applies to both charged and lesser included offenses. Second, the prosecutor did not offer evidence of Rodriguez's prior acts of domestic violence to prove voluntary manslaughter. She offered it, among other reasons, to disprove voluntary manslaughter. Third, Rodriguez did not rely on the prior domestic violence evidence to show he acted in the heat of passion. Instead, he vigorously challenged the veracity and import of the prior domestic violence evidence. Finally, the prior domestic violence evidence did not tend to show Rodriguez acted in the heat of passion. Consequently, at least in this case, instructing the jury the prior domestic violence acts applied to voluntary manslaughter would have potentially confused or misled the jury.
People v. Flores (2009) 176 Cal.App.4th 1171, upon which Rodriguez relies, is inapposite. In Flores, the trial court included voluntary and involuntary manslaughter along with murder as offenses the jury could conclude the defendant was likely to commit and did commit based on his prior acts of domestic violence. (Id. at p. 1176.) However, whether the trial court properly did so was not an issue on appeal. " '[C]ases are not authority for propositions not considered.' " (People v. Barragan (2004) 32 Cal.4th 236, 243.)
DISPOSITION
The judgment is affirmed
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MCCONNELL, P. J.
WE CONCUR:
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HALLER, J.
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IRION, J.