P. v. Johnson

Filed 5/16/08 P. v. Johnson CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, John S. Einhorn, Judge. Affirmed as modified.

After a retrial, a jury found Patricia Joellen Johnson guilty of second degree murder with a firearm (Pen. Code,^[1] 187, subd. (a), 12022.5, subd. (a)) in the 1991 shooting death of her husband, Peter Johnson (Peter). After the denial of a new trial motion, the trial court sentenced Johnson to prison for a total term of 18 years to life, consisting of an indeterminate term of 15 years to life for the murder, consecutive to a three-year term for the firearm-use enhancement. The court also ordered Johnson to pay restitution in the amounts of $400 under section 1202.4, subdivision (b) and $400 under section 1202.45.

Johnson appeals, contending the trial court prejudicially misinstructed the jury on intent to kill for purposes of voluntary manslaughter based upon a sudden quarrel or heat of passion, or in the alternative, claims defense counsel was ineffective for failing to object and concurring that intent to kill was an element of heat of passion voluntary manslaughter. Johnson also asserts the trial court prejudicially erred in refusing to instruct the jury with five defense pinpoint instructions on provocation and heat of passion and in failing to instruct the jury with a modified version of CALCRIM No. 852 to explain the uses of battered women's syndrome (BWS)/intimate partner battering (IPB). Finally, Johnson complains that the parole revocation fine must be stricken as violative of the state and federal constitutional proscription against ex post facto laws.

We concur with the People's concession that the restitution fine imposed under section 1202.45 must be stricken and modify the judgment accordingly.^[2] As so modified, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In October 1991, a jury convicted Johnson of first degree murder and found she had used a firearm in shooting and killing Peter in their bedroom on the night of February 25, 1991. We affirmed that conviction on direct appeal in Case No. D015752. Nearly 15 years later, the trial court granted Johnson's petition for a writ of habeas corpus requesting a new trial after a two day hearing on grounds it was reasonably probable she would have received a more favorable verdict if evidence of BWS/IPB had been admitted at her trial.

Following retrial, Johnson was again convicted of killing Peter with a firearm, but this time, the jury found the crime was murder in the second degree.

Shortly before Johnson shot Peter twice with a .38 caliber revolver she kept in the bedside table, she had dialed 911 and had hung-up. The operator, who heard banging and a male voice in the background during the call, dispatched a deputy sheriff to the Solana Beach condominium (condo) address associated with the telephone number and then called the number back. The operator first talked briefly with Peter and then with Johnson, who each essentially told her that everything was fine. The call was disconnected when the operator told Johnson that a deputy was on his way.

Moments later, San Diego County Sheriff's Deputy Linas Yurkus arrived at the condo complex along with other deputies and saw a woman, later identified as Johnson, in front of the subject condo on the second floor in a bathrobe with a revolver in her left hand. Yurkus drew his weapon and repeatedly ordered Johnson to drop the gun, threatening to shoot her if she did not comply. When she eventually set the gun on the ground and Yurkus asked her where her male half was, Johnson replied, "He's on the bed. I shot him because he's an asshole. He deserved it."

When Yurkus and another deputy entered the condo with Johnson, they heard moans coming from the master bedroom. Yurkus then placed Johnson in a guest bedroom while the other deputy looked in the master bedroom to find Peter bleeding profusely, clutching a telephone and saying he had been shot and was dying. Before Yurkus joined the other deputy to help try to stop the bleeding, Johnson told him that she hoped Peter died because he deserved it, she wanted to get dressed and to close the door because she did not "want to hear [Peter's] whining about dying." Emergency medical personnel arrived on the scene and transported Peter to the hospital where doctors operated in vain to save his life.

As other deputies and criminalists arrived at the condo to search for evidence, Yurkus drove Johnson, who appeared nervous, confused and expressed concern about her cat but not Peter, to the sheriff's substation. While waiting to be interviewed by homicide detectives, Johnson told Yurkus, "I should have shot myself. This is going to be a mess." Although she eventually asked Yurkus what he knew about Peter's condition, she also asked the deputy whether she would spend the rest of her life in jail and told him he should have shot her on the porch and made it look like he had acted in self-defense.

Meanwhile, deputies at the crime scene found another gun, a loaded .32-caliber chrome-plated revolver, in a drawer of the master bedroom nightstand and .38-caliber hollow point bullets as well as .32-caliber long bullets in a suitcase in the bathroom closet. The deputies also found a prenuptial agreement, a spending amount form and some contracts on the nightstand.

An autopsy revealed Peter died from a single gun shot to his back, which had traveled downward through his abdominal area. A second bullet, which had entered his upper left arm and had exited his left elbow, grazing his abdomen, was considered a defensive type wound. Ballistics tests showed that Johnson was about two feet away from Peter when she fired the first shot and four feet away from him when she fired the second. Both shots had come from the .38-caliber Rossi gun containing hollow point bullets that Johnson had had in her hand when Yurkus arrived on the scene.

In addition to the above evidence being presented in the prosecution case, Johnson's tape-recorded interview statements were played for the jury and the jurors were given copies of a transcript to follow along with the tape. In her lengthy voluntary statement, Johnson basically recounted the history of her stormy relationship with Peter since meeting him in 1987. After moving in together in 1988, Peter, an executive with a medical company, began seeing other women all over the country and lying to Johnson about those relationships. Later that year, she hired a private investigator to follow Peter and then moved to Florida after receiving confirmation that he had been with another woman in Salt Lake City.

In Florida, Johnson started seeing a psychiatrist, attended group therapy, and took anti-depressants. Against her psychiatrist's advice, Johnson met with Peter in January 1990 and they resumed their relationship long distance after Peter apologized and convinced Johnson that he had changed. The couple spent nearly every weekend together and eventually married in Florida in April 1990. The honeymoon was basically over within the first six weeks. During that time, Johnson suspected that Peter, who was still living and working in Los Angeles, had gone back to his old ways. Peter subsequently quit his job and moved to Florida for three months before the couple returned to California where Peter had obtained a job with a company in Carlsbad.

Johnson became "distraught" within a week of moving back to California, believing that Peter was continuing with his infidelities and lying to her about his behavior. She again hired a private investigator who confirmed that Peter was not where he claimed to be, but who also could not provide evidence of any infidelities. Because she could not work or sleep, Johnson again turned to a psychiatrist for help and also visited a marriage counselor several times with Peter. Eventually, in January 1991, she withdrew $1,000 from their joint bank account, quit her job and started driving back to Florida. She called Peter en route from Texas, then left her car there and flew to Utah to be with him for a ski weekend. Afterwards, on the advice of family and friends, she flew to Florida rather than go back to California with Peter, leaving her car in Texas.

Johnson, however, was "just a basket case" in Florida, and could not work or function without Peter. Although she again visited the same psychiatrist as before, she contacted Peter pleading with him to try to work things out. When Peter agreed to let her return if she reimbursed him for the money she had taken from their joint account, she paid him back, quit her job, had her car shipped from Texas, and flew back to California in breach of her Florida apartment rental contract. Although Johnson believed her life was ruined, she moved back in with Peter on February 1, 1991. Afterwards, the couple argued continuously about finances and Johnson still believed that Peter was "fooling around" and lying to her when she accused him of doing so.

On the day of the shooting, Johnson found an itemized bill Peter had written, showing that she owed him $1,076 for her half of the expenses of the recent Utah ski trip, and a revised prenuptial agreement. Later that night, they got into an argument over the bill and agreement as they were in bed in the master bedroom. When Johnson told Peter she was going to have an attorney look at the documents because she could not pay him the money and thought he was trying to take advantage of her, he accused her of marrying him for his money and of spending all his savings, telling her she should just file for a divorce and not return. Johnson became hysterical, telling Peter he needed psychological help, and he started screaming at her and bit her lip when she asked for a goodnight kiss. When Johnson complained about her lip, Peter told her to "just call the police." Peter disconnected the phone from the wall when Johnson did so. When the operator called back, the couple told her that everything was fine.

It was when Peter started dressing and told Johnson in response to the operator's comment that deputies were on their way to the condo, he had had it, the marriage was over and he never wanted to see her again, that she "freaked out[,]" retrieved one of her two guns from the nightstand drawer, and told Peter, "You [are] not leaving." When Peter responded, "You want to bet[,]" Johnson shot him from across the bed as he was putting on his sweatshirt and then again from the doorway. She was not sure if or where the bullets hit, but she guessed she had shot him in the back. Johnson left the room when Peter starting screaming for help and that he was dying. She walked outside and was almost shot by a deputy before she put the gun down.

Johnson told the deputy interviewing her that "[a]fter all I've been through . . . I have completely destroyed my life. . . . For him to stand up and say its over and that's it. Over money! That I don't even have. And I can't get a job now." She explained she was at her "wits end," that Peter had taken advantage of her and had made a fool of her, and that she had "no out."

At the end of the interview, when the deputy told her that Peter had died and confirmed the news, Johnson stated, "Oh, God." With her eyes watering, she said something to the effect that she could not believe what she had done.

The Defense Case

Johnson presented a defense via BWS/IPB evidence, elicited through her own testimony as well as through the testimony of a variety of experts, long-time friends, and co-workers, that she was a domestic violence victim who was guilty at most of voluntary manslaughter because she had killed Peter in the heat of passion during an argument in their bedroom.

Before testifying about the events on the night of the shooting, Johnson testified at length about her life in general and about her relationships with Peter as well as other men. She noted that her father had abandoned her and her family when she was six years old, that she had attempted suicide as a young adult when her first engagement broke up because the man's family did not think she was good enough, and that she had previously been married two times before meeting Peter. She married her first husband in 1963 when she was 19 years old, had two children and divorced in 1984, after the couple drifted apart and she had an affair with a married man.

Johnson's next husband was a naval officer she met and married in Florida in 1985. While he was initially charming and affectionate, he had a bad temper and became increasingly violent and physically and emotionally abusive during the marriage. The couple moved to Poway in 1986 and Johnson filed for divorce in July 1987 while he was deployed at sea.

In late July 1987, Johnson met Peter, a self-professed playboy, through a personal advertisement she had placed in the newspaper. When they started dating, Johnson did not care that Peter saw other women throughout the country because she planned to return to Florida. However, they became more serious around the holidays, spending Thanksgiving with his sons and Christmas skiing in Utah, and moved in together in January 1988. Although Johnson had a brief encounter with her second husband in December 1987 or January 1988 to purportedly finalize their divorce, she insisted that Peter agree to be monogamous before she started cohabitating with him.

Consistent with her statements to the deputies, Johnson testified in more detail about her and Peter's life together, stating that although the two were generally happy until June 1988, she was immediately suspicious about his faithfulness. Johnson hired an investigator after she began accusing Peter of infidelity and he told her to either prove it or shut up. When she confronted him about seeing a woman in Salt Lake City, he immediately returned to California and denied a sexual relationship with the woman, causing Johnson to doubt herself.

Johnson's suspicions continued during the summer of 1988 and the two communicated in writing , exchanging letters about their relationship, each blaming the other for their problems. In September 1988, Peter signed an agreement to be faithful to Johnson in exchange for Johnson signing a term added to the agreement that she would pay him $10,000 if she accused him of infidelity without proof. When Peter left on a trip a few days later, refusing to take Johnson with him, she became angry and upset and headed back to Florida on September 30, 1988. After exchanging letters, the couple did not have contact until New Year's Day 1989, when Peter left her a voice mail message that he was thinking of her. By that time, Johnson had started working in Florida and was having a romantic relationship with another man who had answered a personal advertisement she had placed in a Florida newspaper while she was still in California.

Peter then began sending Johnson letters and gifts, and contacted her in March 1989. They resumed their relationship shortly after that, even though Johnson had been advised by family, friends and people from a therapy group she attended not to do so. Peter finally visited Johnson in Florida for a weekend in January 1990, which was followed by other romantic weekends before they married in April 1990. Before the marriage, the couple signed a prenuptial agreement at Johnson's suggestion.

As noted earlier, after the wedding, Peter continued to live in Los Angeles until eventually moving to Florida in June 1990. Once there, Johnson began suspecting that Peter had returned to his old ways because he would often come home late, drunk and with bruises, and would get angry when she asked where he had been or what he had been doing. During that time, Peter also began keeping lists of things Johnson did wrong and began modifying the prenuptial agreement, which culminated in Johnson signing the revised agreement which indicated their relationship would end if she investigated his business or personal relationships before 1990.

After Johnson agreed to stop dwelling on the past, the couple returned to California in September 1990 so Peter could take a job in Carlsbad and they rented a furnished apartment in Encinitas. Within several weeks, Johnson confronted Peter with a January 1990 telephone bill to Chicago and various sex clubs after they had reunited. In response, Peter threatened to end the marriage if Johnson did not stop questioning him about ex-lovers.

Not able to live by Peter's rules, Johnson made an appointment to see a clinical psychologist for marital counseling with Peter. After two sessions, Peter agreed to call a woman in Chicago and break off a relationship while Johnson was listening. However, when the couple got home, Peter refused to do so and instead grabbed a ballpoint pen and scratched across Johnson's thigh, "I will not call Pat," the name of the woman in Chicago. After exchanging letters about the incidents, including Peter apologizing for hurting Johnson, the couple initially made up, but then Peter wrote additional letters denying any wrongdoing.

In October 1990, even though she was becoming very unhappy with their relationship because Peter was absent for long periods without explanation, upon his insistence Johnson arranged to relinquish her lease in Florida and have her furniture moved to California. During this time, Johnson discovered and talked to a woman in Rancho Santa Fe whom Peter had been living with at the same time he had been courting Johnson in Florida in the early part of 1989. Johnson learned that Peter had initially given that woman the diamond wedding ring he had given Johnson on their marriage. When Peter abruptly ended that relationship by moving to Los Angeles, he had demanded the ring back. Hysterical about the extent of Peter's deception, Johnson confronted him about the Rancho Santa Fe woman. He claimed that woman was crazy and wrote Johnson a letter, making up a "ridiculous story" about the ring, and asking her to sign an agreement to refrain from accusations for two weeks.

Although Peter claimed to still love Johnson, he continued to write her letters about her financial obligations and to keep notes on her comments and behavior. He made behavior charts which he left out for Johnson to see when he started a new one. Peter also continually made more modifications to the prenuptial agreement and had a series of rules as to when and how Johnson could ask him questions. Johnson testified that by the end of 1990 and the beginning of 1991, she was so nervous all the time about the rules, lists and modifications, that she could not sleep or work, and she gave Peter a two-page letter informing him that she was leaving.

Eventually, on January 15, 1991, Johnson started driving to Florida as she had told the deputies. She left her car in Texas and flew to Utah to meet Peter because he would not answer her telephone calls and to discuss her conditions for staying with him. She flew to Florida from there when Peter would not agree to make all the changes she wanted. The next week, Peter flew to Florida and they had a "wonderful weekend." Johnson flew to California to be with Peter on February 1, 1991. She was increasingly confused by Peter's actions during that time because he would be nice to her at one point and then later inform her she had broken several of his rules. They had an argument when she questioned him about his wanting her to go to Florida for a few weeks to give notice at her apartment and to retrieve her car. The following weekend, the couple skied in Salt Lake City and parted ways in Chicago. When they reunited in Chicago on February 13, 1991, they argued about whether Peter had really gone on a business trip while Johnson had visited family. As a consequence, he drafted an agreement for her to sign that prohibited Johnson from commenting on his activities for a year in exchange for his fidelity, and if she breached the agreement, he would invoke the "four-hour" rule, which allowed him to do whatever he wanted without questioning for four hours.

Johnson returned to California with Peter five days before the shooting. During that time, she mailed her apartment key to Florida, picked up her car and began job hunting. When she told Peter she had an interview with a cardiology clinic, he told her not to take the job if offered because it would interfere with their travel and skiing. Johnson said that Peter's conflicting behavior confused her so much that she could not think straight.

On the day of the shooting, Johnson had accepted the job at the clinic and had returned home to find Peter in their bedroom acting strangely. After he left, Johnson found an envelope on the nightstand addressed to her that contained the financial breakdown of her half of expenses for the recent trips to Salt Lake City and Chicago, plus an earlier debt of $3,977. Peter refused to discuss the matter when Johnson called him and an argument ensued that night when he returned home. The argument ended abruptly with Peter going to bed where Johnson joined him to continue the discussion and asked him for a goodnight kiss. Johnson's testimony about Peter then hurting her lip, the 911 calls, Peter's statements he was leaving and getting a divorce, her "snapping," getting a gun and shooting Peter were all consistent with what she had told the deputies, although she did not remember talking to Deputy Yurkus right after the shooting. Johnson testified she did not know if she had hit Peter after the first shot because he kept yelling at her and started walking closer to the bedroom door, so she shot him a second time so she would be able to get out of the room. Johnson denied she had ever pointed a gun at her second husband.

Johnson admitted that no particular action provoked her to shoot Peter that night, stating that the "evening was just more of the same that had been going on for a long time." She claimed that she just snapped after all that had happened in the relationship, i.e., all the pressure and stress of the rules, the financial demands, the restrictions on her behavior, Peter's continual documenting of everything she said and did, combined with the ultimate insult of him telling her he was divorcing her after the protracted, intense argument that night about her financial obligations to him.

Johnson conceded that contrary to the impression given in her declaration in support of her petition for habeas corpus that resulted in this new trial and a letter to the Board of Prison Terms, she did not shoot Peter in self-defense and she was not afraid he was going to attack her that night. Johnson explained that although she had been frightened by the intensity of the events that night and felt trapped in the bedroom, she did not mean to suggest in any of her writings that she had acted in self-defense.

Johnson also presented the testimony of several friends and former co-workers who testified about their relationships with Johnson and their knowledge of her relationship with Peter. The gist of their collective opinion testimony was that Johnson had changed from being a level-headed, intelligent and fun person to one that was distraught, disillusioned, confused and insecure after she began her relationship with Peter. Her first husband, whose relationship with Johnson had not included any physical or psychological abuse, testified that Johnson was an honest, "very passive, nonviolent person," whom he was surprised to learn had shot Peter.

In addition to then presenting evidence from an ammunition expert who testified that hollow point bullets are recommended for self-defense purposes and opined that a person shot with such bullet from a .38-caliber gun within a distance of two to six feet would not fall immediately and could possibly turn and sustain a shot in the back before the trigger was pulled, Johnson presented the bulk of her BWS/IPB defense through the testimony of various mental health experts.

Dr. Roland Fleck, the marriage counselor Johnson and Peter had met with twice in September of 1990 and alone with Johnson three times (twice in October 1990 and once in January 1991), described Johnson as "utterly insecure" in the marriage and Peter as charming but full of contempt for Johnson because of her continuing accusations of infidelity. Fleck's diagnostic impression was that Peter's personality had sociopathic and narcissistic features and that Johnson suffered from long-term low to moderate chronic depression and had dependent and self-defeating personality features. In January 1991, Fleck had advised Johnson to leave Peter and return to Florida because he was unlikely to change.

Psychiatrist Christine Warmann had also diagnosed Johnson with major depression when she evaluated her in jail in April 1991. When she reviewed the case for trial, Warmann had the impression that Johnson may have also suffered from post-traumatic stress disorder (PTSD). A counselor, therapist and minister who had met almost weekly at the jail with Johnson before her first trial testified that Johnson was tearful, emotional, confused and remorseful during that time.

Linda Barnard, a licensed marriage and family therapist, testified as an expert on domestic violence and BWS, explaining the three cycles of violence in domestic violence cases and the seven common categories of psychological abuse employed by batterers in abusive intimate relationships (the power and control wheel). Barnard also discussed the concept of "traumatic bonding," the pronounced loyalty to the abuser, and how victims of domestic violence develop PTSD.

After reviewing the voluminous documents in this case and meeting with Johnson twice, once in 2004 and again in 2005, Barnard opined Johnson met the criteria for a BWS victim, suffered symptoms consistent with PTSD, exhibited traumatic bonding to Peter, and her case was one of the most severe cases of psychological abuse she had ever seen. Barnard also agreed with Fleck and Warmann that Johnson suffered from depression, but disagreed that she had a self-defeating or dependent personality. Barnard believed that Johnson's behavior in the months before and on the night of the shooting were consistent with a domestic violence victim who was in the midst of domestic violence and that the fact Johnson killed Peter showed the severity of the psychological abuse. Barnard further believed that the ultimate insult to Johnson was Peter's saying he was leaving her or flaunting the fact that he had been with other women and that Johnson had been in a dissociative state after the shooting as evidenced by her intermittently frantic behavior and her statements to the deputies that did not make sense.

Finally, psychologist David Wexler testified as an expert on domestic violence for the defense, describing and defining two categories of domestic violence as intimate partner terrorism, another term for BWS/IPB, and situational couple violence. Wexler noted that the first category is typically characterized by extreme levels of psychological abuse, with the abuser trying to maintain power and control over the partner, whereas the second category is characterized by genuine remorse after situational abuse rather than trying to gain control over the partner. Wexler opined that both Johnson's second husband and Peter were domestic violence abusers and Johnson met "the criteria for being a victim of domestic violence and its effects." Wexler also believed that Peter met the criteria for a psychopathic personality based on his behavior in the relationship with Johnson and had engaged in six of the seven categories of abuse on the power and control wheel.

Rebuttal

In rebuttal, the prosecution presented testimony from Johnson's second husband, several of Peter's former co-workers and friends, Peter's two sons and a forensic psychiatrist. Johnson's second husband testified that Johnson was extremely jealous during their short marriage, evidenced by her not wanting him to talk to his first wife even though she had custody of his young children, and not wanting him to socialize with neighbors or family members without her being present. Although he admitted he had physically and verbally abused Johnson during their marriage, and was unable to give her sufficient reassurance to quiet her accusations, he was heartbroken when he was served with divorce papers while he was at sea. When he returned in December 1987, they spent an intimate night at a hotel, but when he then went to her condo to retrieve his belongings, Johnson was angry and pointed a gun at him. Nonetheless, they continued to meet occasionally for sexual intercourse up until April 1988 and he last saw her on September 22 that year.

Three employees from Peter's former workplaces, including a chief executive officer, testified generally about Peter's good character as an excellent employee and his calm, soft-spoken, down-to-earth manner as well as the fact that Johnson called to speak to him frequently, often interrupting business meetings. Although Peter expressed love for Johnson, he described her to co-workers as "the challenge of his life." In the months before his death, Peter appeared to be extremely distracted and frustrated when he received calls from Johnson.

A friend of Peter's, who had also worked with him at various times, testified that he had talked to Johnson when she had called for Peter, and she accused him of covering for him when he told her Peter was in a meeting and could not be disturbed. The friend recalled that Peter was very methodical, wrote things down a lot, and would ask people to write him a memo rather than have a conversation about an issue. Another colleague, who had worked and traveled with Peter, agreed that Peter was a soft-spoken, methodical planner, who did not party or get together with women during their business trips. The colleague had received a Christmas card in 1988 from Johnson that contained disparaging remarks about Peter.

Peter's sons agreed that Johnson appeared cold and quiet when they first met her and that neither noticed any tension between her and their father during their visits with the couple. One of Peter's sons, who had dinner twice with the couple the weekend before the shooting, testified that Johnson did not appear angry, depressed or stressed at that time and Peter also appeared happy.

Forensic psychiatrist Park Dietz, who had reviewed various statements, records, reports and the testimony of many people in the prior proceedings in this case, essentially testified as an expert on BWS/IPB and personality disorders. Dietz opined that both Johnson and Peter engaged in emotionally abusive and unhealthy behavior in their relationship, with each trying to control the other's behavior, and that their personalities were such that they could not have chosen worse partners. Dietz believed that Peter exhibited only two of the seven controlling behaviors of an abuser, while Johnson exhibited three, and that neither qualified as a domestic violence abuser even though there was serious emotional abuse in their relationship.

Dietz disagreed with Wexler that Peter was a psychopath even though he agreed that Peter manifested traits of narcissism, sociopathic behavior and obsessive-compulsiveness. Dietz further believed that Johnson's personality traits included jealousy, insecurity, dependency, fear of abandonment and borderline personality disorder. He opined that Johnson's anger and fear of abandonment, rather than Peter controlling her behavior, explained why she shot him. Johnson's history of leaving Peter in the past, her cheating on him, her engaging in controlling, jealous and angry behavior toward him showed she was not afraid of him. Contrary to her experts' testimony, Dietz did not believe that Johnson was in a dissociative state when she talked to the deputies after the shooting, giving them a straightforward and accurate account of the incident.

Surrebuttal

Wexler was recalled to clarify that Peter did not qualify for a diagnosis of psychopathic personality disorder, but only had "a psychopathic personality" without any antisocial or criminal history.

Closing Arguments

The prosecutor argued that Johnson was guilty of first degree, premeditated murder and that the malice required for first and second degree murder was not negated by heat of passion or provocation because any provocation in this case would not cause a reasonable person to kill. Defense counsel extensively argued however that Johnson was guilty of only voluntary manslaughter because the killing occurred during the heat of passion, provoked by Peter's unrelenting psychological domestic violence abuse of her. As noted, the jury found Johnson guilty of second degree murder in Peter's shooting death.

DISCUSSION

Johnson essentially contends the trial court prejudicially erred in instructing the jury under both CALCRIM No. 570 and the former version of CALJIC No. 8.40 that included an intent to kill, regarding her defense of heat of passion voluntary manslaughter to Peter's murder, and in failing to give her requested proposed pinpoint instructions to augment the definition of provocation in CALCRIM No. 570 and to instruct sua sponte with a modified version of CALCRIM No. 851 regarding BWS/IPB. Johnson also asserts that each of the instructional errors violated her federal due process rights to a fair trial and to present a meaningful defense. No prejudicial error is shown.

We review de novo claims that a trial court has failed to properly instruct on the applicable principles of law. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) In doing so, we ascertain the relevant law and then " 'determine the meaning of the instructions in this regard.' [Citation.]" (Ibid.) The test for judging the adequacy of instructions "is to decide whether the trial court 'fully and fairly instructed on the applicable law . . . .' [Citation.] ' "In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]" ' [Citation.] 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' [Citation.]" (Id. at pp. 1111-1112.)

To resolve Johnson's assertions of instructional error, we address each separately, considering all relevant circumstances, including the instructions in their entirety, the trial record, and the arguments of counsel. (See People v. Kelly (1992) 1 Cal.4th 495, 525-526.)

A. Heat of Passion Voluntary Manslaughter

During jury instructions discussions, the prosecutor noted for the court that he had revised CALCRIM No. 252 regarding the required mental states for the charged murder and the lesser offenses to include "intent to kill for voluntary manslaughter without any other intent or mental state attributed to that crime [because] in 1991 the only way one could be guilty of voluntary manslaughter was with an intent to kill. The law has changed since then, but that was the law in 1991." When the court then asked defense counsel whether he agreed with that, counsel replied, "Yes. With a caveat that it's clear in [CALCRIM No.] 570 that if there's implied malice or premeditation. [] So, yes I do."

A short time later, the prosecutor noted that he had included CALJIC No. 8.40 in the packet of instructions, but that it "probably should not be given." Although he had discussed the matter with defense counsel who had indicated that CALCRIM No. 570 "was inclusive of the issues here," the prosecutor was concerned that that instruction did not define voluntary manslaughter as explicitly as CALJIC No. 8.40. When the court asked "[i]f we give [CALCRIM No.] 570, don't we have to define voluntary manslaughter," defense counsel responded, "[y]ou can. I'm thinking that we do." The court agreed to "give [CALJIC No.] 8.40 defining voluntary manslaughter followed by [CALCRIM No.] 570," after defense counsel added that there were no other definitions of voluntary manslaughter and he thought it was appropriate even though he had previously indicated his "option." The court subsequently gave the jury both instructions.^[3]

On appeal, Johnson contends the trial court prejudicially erred in instructing the jury in the language of CALJIC No. 8.40 that "intent to kill" was a necessary element of voluntary manslaughter in the heat of passion or upon a sudden quarrel. Alternatively, Johnson claims her trial counsel was ineffective for failing to object to the giving of such instruction. As the People point out, Johnson is technically barred from raising this issue because her counsel invited the error by expressly agreeing to the use of CALJIC No. 8.40.^[4] (People v. Davis (2005) 36 Cal.4th 510, 539.) Nonetheless, because Johnson claims trial counsel was ineffective for failing to object to the giving of the instruction, we address the merits of the claim and conclude that no prejudicial error is shown on this record.

Concededly, even though Johnson's crime occurred in 1991 and case law at that time supported the premise that an intent to kill was an element of voluntary manslaughter (see People v. Lasko (2000) 23 Cal.4th 101, 110 (Lasko), our Supreme Court subsequently clarified in Lasko that "intent to kill is not a necessary element of the crime of voluntary manslaughter, which is a lesser offense included in the crime of murder." (Id. at p. 111.) The defendant in Lasko had been convicted of second degree murder after beating his employer to death during a robbery, which he contended occurred in the heat of passion. (Id. at pp. 104-105.) On appeal, the defendant argued, as Johnson does here, that the trial court had erroneously instructed the jury that intent to kill was an essential element of the lesser offense of voluntary manslaughter which forced the jury to reach a murder verdict if it found no intent to kill. (Id. at p. 106.) The Supreme Court in Lasko, supra, at pages 108 through 109, found the plain language of section 192, subdivision (a) defining manslaughter contained no requirement of intent to kill and "held that a killing in a sudden quarrel or heat of passion constitutes voluntary manslaughter whether the defendant acts with an intent to kill, or instead, in conscious disregard for human life. [Citation.]" (People v. Parras (2007) 152 Cal.App.4th 219, 225.) Because this holding in Lasko has been held to apply retroactively (People v. Crowe (2001) 87 Cal.App.4th 86, 94-95), the trial court here, like the trial court in Lasko, erred when it instructed the jury that in order to convict Johnson of voluntary manslaughter, the jurors must find "'[t]he killing was done with the intent to kill.'" (Lasko, supra, 23 Cal.4th at p. 111.) We conclude that error, however, did not prejudice Johnson.

As the Supreme Court in Lasko noted, this type of instructional error is " 'reviewed for prejudice exclusively under [People v.] Watson [(1956) 46 Cal.2d 818, 836 (Watson)]. A conviction of the charged offense may be reversed in consequence of this form of error only if, "after an examination of the entire cause, including the evidence" [citation], it appears "reasonably probable" the defendant would have obtained a more favorable outcome had the error not occurred [citation].' [Citation.]" (Lasko, supra, 23 Cal.4th at p. 111, quoting People v. Breverman (1998) 19 Cal.4th 142, 178.)

In reviewing the matter in Lasko, the court looked at the instructions as a whole, the arguments of the parties and the evidence in the case to determine whether the defendant had been prejudiced by the erroneous instruction and specifically stated three reasons for finding the error harmless under Watson. (Lasko, supra, 23 Cal.4th at pp. 111-112.) First, it noted that the trial court had instructed the jurors with CALJIC No. 8.50, explaining the difference between murder and manslaughter and informing them, that regardless of whether the killing was intentional or unintentional, they could not convict the defendant of murder unless the prosecution proved beyond a reasonable doubt that the defendant was not acting under the heat of passion at the time of the killing. (Lasko, supra, at pp. 111-112.) It found that because the jury convicted the defendant of second degree murder, the jurors necessarily did not believe that the killing was committed in the heat of passion. (Id. at p. 112.) Second, the court commented that neither party during closing argument suggested the defendant was guilty of murder if he killed the victim unintentionally during a sudden quarrel or heat of passion. (Ibid.) It also noted that the subject of voluntary manslaughter did not play a prominent role in either party's argument, but that argument was basically directed to whether there was premeditation in that robbery-murder case. (Ibid.) Third, it found "the evidence strongly suggested an intent to kill." (Id. at p. 112.)

Here, as in Lasko, supra, 23 Cal.4th 101, we review the instructions as a whole, the arguments of counsel, and the evidence to determine whether Johnson was prejudiced by the erroneous instruction. Although the trial court did not instruct under CALJIC No. 8.50 as in Lasko, it instructed the jury under CALCRIM No. 520 that murder requires express or implied malice aforethought, under CALCRIM No. 521 regarding first and second degree murder and the requirement of deliberation and premeditation for first degree murder, under CALCRIM No. 522 regarding the effect of provocation on the degree of murder or manslaughter, with CALJIC No. 8.40 that "[t]here is no malice aforethought if the killing occurred upon a sudden quarrel or heat of passion," and under CALCRIM No. 570 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" and 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."

Although not as explicit as CALJIC No. 8.50, these instructions, read as a whole, told the jury, as in Lasko, "that regardless of whether the killing of [Peter] was intentional or unintentional, [Johnson] could not be convicted of murder unless the prosecution proved that, at the time of the killing, [Johnson] was not acting in the heat of passion." (Lasko, supra, 23 Cal.4th at p. 112.) Thus, if the jury had believed that Johnson had unintentionally killed Peter in the heat of passion, it would have concluded that it could not convict her of murder (because she killed in the heat of passion) or voluntary manslaughter (because she lacked the intent to kill). Similar to the situation in Lasko, the fact that the jury convicted Johnson of second degree murder shows that it did not believe she shot Peter in the heat of passion. (Ibid.)

Contrary to Johnson's argument that the jury may have been forced to find her guilty of second degree murder on an implied malice theory even if they found she acted rashly and without due deliberation, unintentionally killing in the heat of passion or upon a sudden quarrel because CALCRIM No. 570 only mentions provocation and intentional commission of an act with a conscious disregard for life and not an intent to kill as in the CALJIC No. 8.40 instruction given, any purported instructional dichotomy due to such omissions is irrelevant. The only way the jurors could have found Johnson guilty of second degree murder under the circumstances she sets forth would be if they ignored the trial court's instructions that malice aforethought is an element of second degree murder and that there is no malice aforethought if the killing occurred upon a sudden quarrel or heat of passion. Johnson has not rebutted the presumption that the jury correctly followed the given instructions. (People v. Alfaro (2007) 41 Cal.4th 1277, 1326.)

Concerning the second Lasko reason, in closing arguments the prosecutor argued that Johnson was guilty of first degree, premeditated murder and voluntary manslaughter was inapplicable in this case, urging that the malice requirement for first and second degree murder was not negated by heat of passion or provocation because any provocation in this case would not have caused a reasonable person to kill. Although, unlike in Lasko, the subject of voluntary manslaughter played a prominent role here with defense counsel strenuously arguing that Johnson was guilty only of that lesser crime because the killing occurred during the heat of passion provoked by the emotional trauma caused by Peter's continual domestic violence abuse, "neither the prosecution nor the defense suggested that [Johnson] was guilty of murder if [she] unintentionally killed [Peter] in a sudden quarrel or the heat of passion." (Lasko, supra, 23 Cal.4th at p. 112.)

Moreover, as in Lasko, the evidence, although conflicting, strongly suggested an intent to kill. By her own testimony, Johnson had retrieved a loaded revolver from her nightstand after Peter told her that the marriage was over and he was leaving. She then shot him in the back from a distance of two feet as he was dressing, when he told her, "you want to bet" in response to her telling him he was not going to leave. She had shot him a second time because she did not know whether the first bullet had hit him and she feared she might not be able to leave the room. The autopsy, ballistics testing and Johnson's statements to the deputies on the scene and during her interview the night of the shooting corroborated her testimony. Based on the history of the couple's stormy relationship, Johnson clearly had a motive to shoot Peter because she was angry that he was leaving her after all they had been through. Her actions and statements after the shooting also support a finding that the killing was intentional. Not only did she not render aid to Peter or call for emergency help, she walked outside their condo where, when confronted by Yurkus, she told the deputy that Peter was on the bed and that she had "shot him because he's an asshole. He deserved it." Johnson also wanted the deputy to close the door of the guest room where he had taken her to get dressed so she would not have to hear Peter's moans and "whining about dying." As in Lasko, an intentional killing was strongly suggested and premeditation could also have been found, but was not. (Lasko, supra, 23 Cal.4th at pp. 112-113.) Thus, "[u]nder the circumstances, it is not reasonably probable that a properly instructed jury would have convicted [Johnson] of the lesser offense of voluntary manslaughter. [Citation.]" (Id. at p. 113.)

Consequently, even if Johnson's trial counsel's performance fell below an objective standard of reasonableness by agreeing to the erroneous CALJIC No. 8.40 instruction on voluntary manslaughter which included an intent to kill as an element, her claim of ineffective assistance of counsel fails as she cannot show on this record " 'that there is a reasonable probability that, but for counsel's unprofessional error[], a determination more favorable to [her] would have resulted. [Citations.]' " (People v. Holt (1997) 15 Cal.4th 619, 703.)

To the extent Johnson further asserts that the instructional error here violated her federal due process rights to a fair trial and to present a meaningful defense, such a claim was also rejected by the court in Lasko. Here, as in Lasko, the jury was instructed on voluntary manslaughter and correctly told that "a killing in the heat of passion is not murder. The court erred only in telling the jury that to convict [Johnson] of voluntary manslaughter, the jury had to find that [she] intended to kill the victim." (Lasko, supra, 23 Cal.4th at p. 113.) However, as noted above, the trial court's instructions taken in their entirety do not support Johnson's assertion that CALJIC No. 8.40 "could have led the jury to conclude that if [she] lacked an intent to kill, it had to find [her] guilty of the more serious crime of murder." (Lasko, supra, at p. 113.) Therefore, the court's instructional error also did not violate Johnson's federal due process or jury trial rights. (Ibid.)

B. CALCRIM No. 851

In the packet of proposed jury instructions, the prosecutor had included a modified version of CALCRIM No. 851, which was purportedly based on People v. Humphrey (1996) 13 Cal.4th 1073, 1088 (Humphrey) and the 2005 revision of CALJIC 9.35.1, and provided as follows:

"You have heard testimony from experts regarding the effect of intimate partner battering. [] As it relates to a sudden quarrel or heat of passion, you may consider this evidence only in deciding whether the defendant was actually provoked to act under the influence of a sudden quarrel or heat of passion, and if so, whether her reaction to the provocation was reasonable or unreasonable. [] In assessing reasonableness, the issue is whether a reasonable person in the defendant's circumstances would have been provoked to act under the influence of a sudden quarrel or heat of passion, and not whether killing the alleged abuser was reasonable in the sense of being an understandable response to ongoing abuse. An act which appears to be an understandable response is not necessarily an act that is reasonable under the circumstances."

During the jury instruction conference, after noting he had read the packet of proposed instructions and defense counsel's opposition to various instructions, the trial judge stated he would be denying the prosecutor's modified version of CALCRIM No. 851. When the judge then inquired whether CALCRIM No. 851 should be given in any form or not, a short recess was taken. Afterwards, the trial judge stated, "[w]e are giving those instructions contained in [the prosecutor's] package except that in reviewing instruction [CALCRIM No.] 851, it appears that the nature of the evidence in this case is such that [CALCRIM No.] 851, although California Criminal Jury Instructions indicates it's a sua sponte instruction, may not be appropriate from either side's point of view nor from the Court's point of view."

When the court inquired from defense counsel whether its understanding was correct that "for tactical reasons the defense will not be requesting [CALCRIM No.] 851," defense counsel replied, "Correct, your Honor." After the prosecutor agreed that the People "under the specific facts of this case" would not be requesting the instruction, the trial judge stated it found "a good reason for not giving [CALCRIM No.] 851 in that it would most likely confuse rather than assist the jury in deciding the effect of abuse as it may apply to this case and the lesser included offenses. [] Accordingly, because neither side wants it, [CALCRIM No.] 851 will not be given. [] And I will withdraw it from [the prosecutor's] package and write on it per stipulation of counsel, it is deemed withdrawn."

Johnson contends on appeal that the lack of any instruction on the use of the BWS/IPB evidence constituted prejudicial error. Relying on Humphreysupra, 13 Cal.4th 1073, she essentially asserts that the trial court had a sua sponte duty to instruct on the use of the BWS/IPB evidence here because it was relevant to her credibility, her intent and to both the objective and subjective components of her defense of heat of passion and provocation to show she was only guilty at most of voluntary manslaughter. As the People correctly point out, this claim is barred under the invited error doctrine.

Although our Supreme Court recognized in Humphrey that a limiting instruction on the use of BWS/IPB evidence may be appropriate when relevant and "on request" (see Humphrey, supra, 13 Cal.4th at p. 1088 & fn. 5), the record shows that Johnson's counsel had specific tactical reasons for not requesting such an instruction. Under these circumstances, even assuming there was a sua sponte duty to somehow instruct under CALCRIM No. 851, "the doctrine of invited error still applies if the court accedes to a defense attorney's tactical decision to request that [a certain instruction] not be given. [Citations.] Such a tactical request presents a bar to consideration of the issue on appeal. [Citation.]" (People v. Prince (2007) 40 Cal.4th 1179, 1265.) The court in this case acceded to Johnson's counsel's tactical decision that CALCRIM No. 851 not be given. Therefore, consideration of her claims regarding the court's duty to give that instruction is barred.

C. Johnson's Requested Pinpoint Instructions

Finally, near the end of the jury instruction conference, after it had refused to give the prosecutor's modified version of CALCRIM No. 851 as noted above, the court commented it had also considered the "defense proposed jury instructions numbered 1 through 5 inclusive," which were purportedly submitted in relation to voluntary manslaughter, heat of passion and BWS/IPB evidence, and was refusing to give them "in that they are not contained in CALCRIM and appear to be pinpoint jury instructions that need not at this time be given."

On appeal, Johnson contends that the trial court prejudicially and erroneously refused to instruct the jury with the five defense proposed pinpoint instructions on heat of passion and provocation, thereby depriving her of her federal constitutional rights to a fair trial and due process. We disagree.

Although a defendant generally has a right to a pinpoint instruction on a particular defense theory (People v. Earp (1999) 20 Cal.4th 826, 886), "instructions that attempt to relate particular facts to a legal issue are generally objectionable as argumentative [citation], and the effect of certain facts on identified theories 'is best left to argument by counsel, cross-examination of the witnesses, and expert testimony where appropriate.' [Citation.]" (People v. Wharton (1991) 53 Cal.3d 522, 570 (Wharton).) Further, a court may also properly refuse a pinpoint instruction that is an incorrect statement of law (People v. Gurule (2002) 28 Cal.4th 557, 659), that is confusing (People v. Moon (2005) 37 Cal.4th 1, 30), or that is merely duplicative of other instructions (People v. Bolden (2002) 29 Cal.4th 515, 558).

Here, Johnson's first and second proposed jury instructions were properly refused as argumentative. The first proposed instruction provided, "You may but are not required to find sufficient provocation when it involves verbal taunts by an unfaithful spouse." The second provided, "You may but are not required to find sufficient provocation when it involves the infidelity of a lover or spouse." Both of these instructions improperly related particular facts, the victim's verbal taunts and alleged infidelity before and during the marriage, to the legal issue of whether there was sufficient provocation for voluntary manslaughter.

In addition, even if those instructions should have been given, because CALCRIM No. 570, which is set forth in footnote 3 above, fully informed the jury that "no specific type of provocation is required," and defense counsel's arguments fully explained the defense theme that Peter's emotional abuse, which included verbal taunts and infidelity, provided sufficient provocation, no prejudice can be shown as the jury was not precluded from considering and making a finding of adequate provocation based on the victim's taunts and/or alleged infidelity. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1145 (Gutierrez).)

With regard to Johnson's third proposed instruction, the court properly declined to give it because it was an incomplete statement of the law which had the potential to confuse the jury. Such instruction provided, "In considering whether there was provocation in this case sufficient to constitute heat of passion you may consider evidence of domestic violence to the extent such evidence would or would not have contributed to arousing the passions of the ordinarily reasonable person faced with the same situation."

As the People point out, the heat of passion element of voluntary manslaughter has both a subjective and an objective component. (People v. Steele (2002) 27 Cal.4th 1230, 1252 (Steele).) Specifically, " '[the] heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances,' because 'no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.' [Citation.]" (Id. at pp. 1252-1253.) Although domestic viol