P. v. Martinez

Filed 5/10/07 P. v. Martinez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Johnny A. Martinez was convicted after jury trial of first degree murder (Pen. Code, 187).[1] The jury further found that the murder was intentional and involved the infliction of torture ( 190.2, subd. (a)(18)), and that defendant personally used a deadly or dangerous weapon, a knife, in the commission of the offense ( 12022, subd. (b)(1)). The trial court found that defendant had five prior strikes ( 1170.12). The court sentenced defendant to the indeterminate term of life without the possibility of parole consecutive to the determinate term of one year.

On appeal defendant contends that (1) the court prejudicially erred in giving CALJIC No. 5.54 (2004 re-revision); (2) the court prejudicially erred in giving incomplete instructions on imperfect self-defense; (3) the court prejudicially erred in failing to give CALJIC No. 8.73 sua sponte; (4) there was insufficient evidence to support the finding that the murder involved the infliction of torture; and (5) the court prejudicially erred in failing to instruct sua sponte on the relationship of provocation to the mental state necessary for the finding that the murder involved torture. As we find no error requiring reversal, we affirm the judgment.

BACKGROUND

Defendant was charged by indictment with murder ( 187). The indictment further alleged that the murder was intentionally committed and involved the infliction of torture ( 190.2, subd. (a)(18)); that defendant personally used a deadly and dangerous weapon, a knife, during the commission of the offense ( 12022, subd. (b)(1)); and that defendant had five prior convictions that constituted strikes ( 1170.12). Defendant waived a jury trial on the alleged priors.

The Prosecutions Case

Ruby Aguirre has known defendant since she was in the fourth grade. At times they have been boyfriend and girlfriend and at other times they would not speak to each other. They last dated in 1995 and in 2003 Aguirre considered defendant to be just a friend. Aguirre met the victim of the homicide, Raymond Atondo Jr. (Atondo), in February 2002. They dated for about one year and broke up in February 2003.

One evening in August 2003, Atondo arrived at Aguirres home unannounced. Aguirre took Atondo into her room to talk. Atondo said that he did not want to talk. Atondo was aggressive and hurt Aguirre both physically and emotionally during a sexual encounter. Aguirre became depressed after the encounter. In early September 2003, defendant asked Aguirre what was wrong. She started crying and told him that Atondo had hurt her and that she knew that it was over with Atondo. Defendant became very agitated and angry. He asked Aguirre if she wanted him to take care of it. He said that he could make a phone call and have Atondo beat up or killed, whatever she wanted. Aguirre told defendant to leave Atondo alone.

A stun gun was sent from a Minnesota company to defendant at his home address, and was delivered on September 24, 2003. A stun gun causes contortion of the muscle under the skin it touches, resulting in a tremendous amount of pain. However, it does not actually immobilize the victim or cause disorientation. Stun guns are meant to cause so much pain that the victim will stop resisting. Defendant later told Aguirre that he had purchased a stun gun for her, for her protection. Yet, he never gave the stun gun to her.

In October and November 2003, during two telephone conversations, defendant told Aguirre about Asian gang members that he knew and said that  they were watching and following Atondo. During one conversation, defendant said that  they went inside an apartment thinking that it was Atondos, but it was the wrong apartment. Aguirre told defendant that she did not care, and told defendant to leave it alone.

On November 15, 2003, Atondo called Aguirre and told her that his daughter Jesalia was ill and wanted to see her. Because defendant was working on Aguirres Buick, Aguirre drove a Trans Am, which defendant also sometimes drove, over to Atondos apartment and spent the night there. The next morning, the Trans Am was gone and Atondos Buick was in the complex parking lot. Aguirre immediately called defendant from her cell phone. Defendant was angry and told her that she was making him look really stupid in front of the guys because the guys told him they saw his car parked in front of Atondos home. Aguirre became angry and told defendant to stop talking to her about it.

On December 18, 2003, defendant again asked Aguirre to give him a shot. He said that, if Atondo were not around, she could love defendant again. Aguirre said that it had nothing to do with Atondo, but that she was no longer attracted to defendant. Aguirre asked defendant why they could not just be friends, but defendant said that it was not enough. Aguirre said that she was sorry, but she could not then have defendant in her life anymore. She said that she did not want him to call her or come by her house ever again.

On the night of December 20, 2003, Aguirre sent Atondo an e-mail, telling him that he and his family were in her thoughts as the holidays approached. Atondo did not respond to the e-mail. On the morning of December 22, 2003, Atondo telephoned Aguirre and angrily complained about her e-mail, telling her to leave him alone. Aguirre did not understand why Atondo was angry. Later that night, Atondo forwarded to Aguirre a copy of the e-mail that he had been talking about; the e-mail had not come from her even though it was signed  Always Ruby. [2] Aguirre e-mailed Atondo that the message had not come from her, but he responded that he did not believe her. The last e-mail Aguirre sent Atondo was around 11:00 p.m. that night.

Atondo lived with Jesalia, who was 11 years old at the time of trial, in apartment 8 on the second floor of a complex in Sunnyvale. Raymond Atondo III (Raymond), Atondos son, lived with his family in apartment 9, next door to Atondo and Jesalia. On the night of December 22, 2003, Jesalia fell asleep on the couch in her apartment while Atondo slept on a mattress on the living room floor. Jesalia woke up and saw a man wearing a black ski mask and carrying knives in his back pocket. Atondo asked the man why he was there, and the man said that he was there because Atondo had hurt somebody. Atondo said that he did not hurt anyone. The man zapped Atondo on the chest with something, and Atondo fell. The man put a knife to Atondos neck and tied his arms behind his back with plastic ties. Atondo asked the man not to hurt his daughter. The man said that he was not there for her and put the knife back in his pocket. The man told Jesalia to go to her room and to lie on her stomach on her bed, which she did. Jesalia could hear bumping and the man and Atondo yelling at each other. When Atondo yelled for help, Jesalia tried to get help from her brother and sister-in-law by pounding on her bedroom wall. The man came into her room to see what she was doing. Later, she broke the screen on her bedroom window, jumped out, and went to her brothers apartment next door.

Around 2:00 a.m. on December 23, 2003, Raymond and his wife Bianca heard loud bangs that Raymond realized were coming from Atondos apartment. Raymond also heard buzzing, like from a bug zapper, and heard his own bedroom window break. He started to get dressed. When he heard his father, Atondo, repeatedly yell help, he dialed 911, handed the phone to Bianca, and went outside to the back balcony. Atondo was standing there next to Raymonds bedroom window, bleeding. Raymond ran to Atondo, who coughed up blood and said that he could not breathe. Raymond went inside to grab something to stop the bleeding, but by the time he returned Atondo had collapsed. Jesalia climbed out her bedroom window and said somebody was still inside. Raymond told Jesalia to go inside his apartment and she did. She was hysterical. Raymond ran inside Atondos apartment, but he did not see anybody in there.

Around 2:10 a.m. on December 23, 2003, Sunnyvale public safety officers responded to a report of a stabbing at an apartment complex. They located Atondo lying on the back second-floor landing. There were no signs of forced entry on either the front or back door of Atondos apartment. There was a blood trail from the mattress in the living room to a large pool of blood on the kitchen floor, and from there out to where Atondo lay. There were also blood stains on other items in his living room and on the walls and back door, and blood smears on the interior and exterior of the window in Jesalias bedroom. A piece of latex that appeared to be from a glove was found on the mattress, pieces of large plastic zip-ties and a can of pepper spray were found near the mattress, and a black ski-mask was found nearby. The condition of Atondos apartment was not consistent with there having been a mutual fight or combat in there. No weapon consistent with Atondos injuries was found in the apartment or the complex. Officers seized a computer from the apartment.

Atondo died of multiple stab and incised wounds. Incised wounds are superficial; they are longer than they are deep. Stab wounds are deeper than they are long. Atondo had five incised wounds around his head and neck and four incised wounds on the back of his right hand. He had two stab wounds in his neck, two in his chest, one in his abdomen, and two around his left shoulder. All of the stab and incised wounds were sustained around the time of death. One four-and-one-half-inch-deep stab wound on the right side of Atondos neck would have been almost immediately fatal. The stab wound cut neck muscles, the right jugular vein, branches of the right carotid artery, and the trachea. It caused a significant loss of blood, some of which went into Atondos lungs, preventing him from breathing.

Atondo also had two or three pairs of abrasions surrounded by contusions on the right side of his abdomen, and linear abrasions on his arms. Atondos injuries were consistent with Atondo having first had a stun gun used on him two or three times, and then having been restrained by the use of plastic zip-ties, having been stabbed, and having had his throat slashed.

Atondos computer revealed that he received the December 22, 2003 e-mail message from Ruby Aguirres e-mail account, which was signed Always Ruby, at 2:56 a.m. on December 22, 2003.

Officers informed Aguirre of Atondos death the morning of December 23, 2003. She provided several e-mails to officers. Officers asked Aguirre to call defendant to find out whether he was involved in the homicide. When Aguirre called defendant, he said that he did not want to talk to her on the phone, but he would come to her house. Officers arrested defendant when he arrived at Aguirres home in a black Trans Am shortly after their telephone conversation. Officers also seized Aguirres personal computer from her home with her permission. Defendant had minor marks on his face, hands and wrists when he was booked into jail, but he had no marks or injuries on his neck or throat.

Police searched defendants residence[3] on December 23, 2003. They seized various knives from the kitchen and pantry, a pepper spray canister from defendants bedroom, packaging for a different kind of pepper spray from a recycling container, and a receipt for the pepper spray showing that it was purchased the morning of December 22, 2003. They seized a piece of paper with the name Atondo R. and Atondos phone numbers on it in defendants handwriting from the bookcase in defendants bedroom, and a computer that had a name tag of Ruby Aguirre and Aguirres expired drivers license attached to it from defendants bedroom. The computer revealed that the December 22, 2003 early morning e-mail message to Atondo signed Always Ruby had been sent from it at 2:51 a.m. that morning.

Sunnyvale detectives interviewed defendant on the evening of December 23, 2003. The interview was videotaped, and an edited DVD of it, exhibit No. 45, was played for the jury. After waiving his Miranda rights,[4] defendant told the detectives that he was not in Sunnyvale the night before and acted surprised to hear that Atondo was dead. Defendant said that he needed to talk to Aguirre. Officers arranged for and taped the telephone conversation and a CD of it, Exhibit No. 48, was played for the jury. During his conversation with Aguirre, defendant said, I just found out about the end result of what happened. He attacked me. I was popping off at the mouth. I tried to leave. Then we started fighting. I was leaving. I was leaving. He was choking me out. We were fighting in the kitchen. He was choking me out. He would [have killed me]. I did not mean to bring this down on you. But I did, but it wasnt intentional. We started fighting in the kitchen. I fell. We slipped, we both fell. He started choking me out. I reached for whatever was there. I didnt know what had happened. I just left. It all happened so fast. I know I, I I know I had, I know [I] had hit him. I left. I was scared. I just left. It wasnt intentional. I didnt go there for any of that. I didnt mean to make him suffer. I didnt mean for any of that to happen. I went over there with good intentions. Not for any of this crap. You gotta believe me on that part. I didnt go over there to do that to him. I want you to understand that I didnt go over there with the intentions to hurt this man.

Officers searched the black Trans Am on December 24 and 26, 2003. They found a briefcase containing defendants drivers license and his California ID, as well as defendants day-planner and mail addressed to him. They seized a small red sheath often used to hold pepper spray canisters that was consistent with the pepper spray can found in Atondos apartment, a box of latex gloves, and a piece of notepad paper that had an address and telephone number on it in Aguirres handwriting. The piece of paper said From the desk of Ruby E. Aguirre, and the handwritten address was for the vacant apartment 7 next door to Atondo.[5] Officers also collected a blood sample from the left rear corner of the drivers side floor mat. Test results of the sample indicated that Atondo was the source of the blood.

A couple weeks after defendant was arrested, Aguirre received a letter from him that she turned over to officers. The letter gave the same version of the events on December 22, 2003, that defendant had previously given Aguirre.[6]

The Defense Case

Patricia Aboud lived downstairs from apartment 7 in Atondos complex in December 2003. Sometime around 1:00 a.m. on December 23, 2003, she heard several thuds against the walls upstairs and two loud, angry voices. The noises lasted around five minutes. About one minute later she heard Raymond running around and screaming.

The parties stipulated that when officers interviewed Jesalia on December 26, 2003, she said that she had been awakened by the sounds of talking between her father and a man. She also said that, while in her bedroom, she heard her father say Give me that.

Verdict, Findings on Priors, and Sentencing

On March 25, 2005, the jury found defendant guilty of first degree murder (187). The jury further found that the murder was intentionally committed and that it involved the infliction of torture ( 190.2, subd. (a)(18)), and that defendant personally used a deadly or dangerous weapon, a knife, in the commission of the offense ( 12022, subd. (b)(1)). On March 28, 2005, the court found all strike priors alleged in the indictment to be true. ( 1170.12.) On May 27, 2005, the court sentenced defendant to the indeterminate term of life without the possibility of parole, consecutive to the determinate term of one year.

DISCUSSION

CALJIC No. 5.54

Without objection, the trial court gave the following instructions on the general principles concerning self-defense: CALJIC Nos. 5.50 (Self-defenseassailed person need not retreat), 5.51 (Self-defenseactual danger not necessary), 5.52 (Self-defensewhen danger ceases), 5.53 (Self-defense not an excuse after adversary disabled), 5.54 (2004 Re-revision)(Self-defense by an aggressor), 5.55 (Plea of self-defense may not be contrived), and 5.56 (2004 Re-revision)(Self-defenseparticipants in mutual combat).[7] On appeal, defendant contends that the court prejudicially erred by giving CALJIC No. 5.54, as it is an incorrect statement of the law. Specifically, he objects that the instruction improperly restricts the right of the original aggressor to use self-defense to when the original aggressor commits a simple assault and the victim responds with a deadly and sudden counterassault.

In reviewing a claim of error in jury instructions in a criminal case, this court must first consider the jury instructions as a whole to determine whether error has been committed. [Citations.] We may not judge a single jury instruction in artificial isolation, but must view it in the context of the charge and the entire trial record. [Citation.] An appellate court cannot set aside a judgment on the basis of instructional error unless, after examination of the entire record, the court concludes that the error has resulted in a miscarriage of justice. [Citation.] A miscarriage of justice occurs only when it is reasonably probable that the jury would have reached a result more favorable to the appellant absent the error. [Citations.] (People v. Moore (1996) 44 Cal.App.4th 1323, 1330-1331; accord, Estelle v. McGuire (1991) 502 U.S. 62, 72.)

The trial court has a duty to instruct sua sponte on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary to the jurys understanding of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) The trial court is required to instruct on a theory of the case only if it is supported by substantial evidence. (People v. Beardslee (1991) 53 Cal.3d 68, 97.)

As stated above, in instructing on the general principles of self-defense, the court instructed on the right of self-defense by an initial aggressor (CALJIC No. 5.54) and the right of self-defense by a person who engages in mutual combat (CALJIC No. 5.56). Both of these instructions were revised following People v. Quach (2004) 116 Cal.App.4th 294 (Quach), to include optional second paragraphs. The trial court included the optional second paragraphs in both instructions to the jury in this case.

In Quach, a case where the jury could have concluded that there was mutual combat, the appellate court found that the prior version of CALJIC No. 5.56 omitted the concept of a sudden and perilous counterassault. The court noted that in People v. Hecker (1895) 109 Cal. 451, 463-464, our Supreme Court stated:  If . . . the counter assault be so sudden and perilous that no opportunity be given to decline or to make known to his adversary his willingness to decline the strife, if he cannot retreat with safety, then as the greater wrong of the deadly assault is upon his opponent, he would be justified in slaying, forthwith, in self-defense.  (Quach, supra, 116 Cal.App.4th at pp. 301-302.) The Quach court then noted that in People v. Sawyer (1967) 256 Cal.App.2d 66 (Sawyer), an earlier version of CALJIC No. 5.56 had been revised by the trial judge to avoid this omission and the appellate court had found that the revised instruction was a correct statement of the law. (Sawyer, supra, 256 Cal.App.2d at p. 75; Quach, supra, 116 Cal.App.4th at p. 302.) That revision provided,  Where a person seeks or induces a quarrel which leads to the necessity in his own defense of using force against his adversary, the right to stand his ground and thus defend himself is not immediately available to him, but, instead he must first decline to carry on the affray, must honestly endeavor to escape from it, and must fairly and clearly inform his adversary of his desire for peace and of his abandonment of the contest unless the attack is so sudden and perilous that he cannot withdraw . . . .  (Sawyer, supra, 256 Cal.App.2d at p. 75, fn.2; Quach, supra, 116 Cal.App.4th at p. 302.)

CALJIC No. 5.54 as given in this case states (with the optional language italicized): The right to self-defense is only available to a person who initiated an assault, if [] 1. He has done all the following: [] A. He has actually tried, in good faith, to refuse to continue fighting; [] B. He has by words or conduct caused his opponent to be aware, as a reasonable person, that he wants to stop fighting; and [] C. He has by words or conduct caused his opponent to be aware, as a reasonable person, that he has stopped fighting. [] After he has does these three things, he has the right to self-defense if his opponent continues to fight, or [] 2. If the victim of simple assault responds in a sudden and deadly counterassault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense. (See CALJIC No. 5.54 (2004 Re-revision).)

CALJIC No. 5.56 as given in this case states (with the optional language italicized): The right of self-defense is only available to a person who engages in mutual combat: [] 1. If he has done all the following: [] A. He has actually tried, in good faith, to refuse to continue fighting; [] B. He has by words or conduct caused his opponent to be aware, as a reasonable person, that he wants to stop fighting; and [] C. He has caused by words or conduct his opponent to be aware, as a reasonable person, that he has stopped fighting; and [] D. He has given his opponent the opportunity to stop fighting. [] After he has done these four things, he has the right to self-defense if his opponent continues to fight, or [] 2. If the other party to the mutual combat responds in a sudden and deadly counterassault, that is, force that is excessive under the circumstance, the party victimized by the sudden excessive force need not attempt to withdraw and may use reasonably deadly force in self-defense. (See CALJIC No. 5.56 (2004 Re-revision).)

CALCRIM No. 3471, which replaces both CALJIC Nos. 5.54 and 5.56, states (with the relevant optional language italicized): A person who engages in mutual combat or who is the first one to use physical force has a right to self-defense only if: [] 1. He/she actually and in good faith tries to stop fighting; and [] 2. He/she indicates, by word or by conduct, to his her opponent, in a way that a reasonable person would understand, that he/she wants to stop fighting and that he/she has stopped fighting[;/.] [] and 3. He/she gives his/her opponent a chance to stop fighting.] [] If a person meets these requirements, he/she then has a right to self-defense if the opponent continues to fight. [] [If you decide that the defendant started the fight using non-deadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself/herself with deadly force and was not required to stop fighting.]

Defendant contends that a reasonable interpretation of the evidence is that defendant initially assaulted Atondo with a stun gun, placed a knife next to Atondos neck and tied Atondos arms with zip-ties. Shortly thereafter, Atondo broke out of the zip-ties, yelled at defendant to give me that, and then suddenly and quickly assaulted defendant. Only then did defendant inflict the stab wounds upon Atondo. However, the erroneous instruction in question, limiting defendants initial encounter with[]Atondo merely to simple assault, if defendant were to acquire or regain the right to self-defense, without the need to withdraw from the affray, totally and completely precluded the jury from consideration of the above-described evidence as being a legitimate and legal basis for acquiring or regaining the right to self-defense, without a need to attempt to withdraw from the affray. Under the erroneous instructions as given, the jury would have rejected in full defendants claim of self-defense.

The Attorney General contends that defendant waived his claim by not raising it in the trial court; that no case law, statute or public policy supports defendants contention; that no substantial evidence supports the need for any different instruction in this case; that the instruction is a correct statement of the law; and that, even if there were facts and law to support defendants claim, any error was harmless.

We disagree with defendants contention. Under the reasonable interpretation of the evidence that defendant puts forth on appeal, defendant stabbed Atondo either while defendant and Atondo were engaged in mutual combat, or after Atondo used excessive force in a counterattack while defendant was attempting to withdraw after initially being the aggressor. Jesalia testified that she saw defendant, who was wearing a mask, zap Atondo on the chest with something, causing Atondo to fall, shortly after she woke up in the living room. Defendant then tied Atondos hands behind his back. After she went into her bedroom as instructed, she heard bumping and defendant and Atondo yelling at each other. She also heard Atondo yelling for help. Defendant stated in his letter to Aguirre that a full blown physical altercation occurred between Atondo and himself. Defendant told Aguirre in their telephone conversation that he first hit Atondo and then he tried to leave, but that he stabbed Atondo after Atondo attacked and tried to strangle him.

CALJIC No. 5.54 correctly informed the jury that defendant had the right of self-defense, even if he were the initial aggressor, if the jury found either that defendant had stopped fighting before Atondo attacked him or that defendant committed a simple assault but was responding to a sudden and deadly counterassault by the victim. (Quach, supra, 116 Cal.App.4th at p. 302.) In addition, CALJIC No. 5.56 correctly informed the jury that defendant had the right of self-defense, even if he were engaged in mutual combat, if the jury found either that he had attempted to stop fighting and the victim continued to fight or that he was subjected to a sudden and deadly counterassault that was excessive under the circumstances and he used reasonably necessary force in self-defense. (Quach, supra, 116 Cal.App.4th at p. 302.) Thus, under the reasonable interpretation of the evidence that defendant puts forth on appeal, and the entire charge to the jury, the jury was not totally and completely precluded from the consideration of the above-described evidence as being a legitimate and legal basis for acquiring or regaining the right to self-defense, and the jury need not have rejected in full defendants claim of self-defense. No error has been shown.

Defendants contention at oral argument that CALJIC No. 5.54 improperly uses the term simple assault, while CALCRIM No. 3471 properly uses the term non-deadly force, does not change our analysis. The use of the term simple assault in CALJIC No. 5.54 cannot be viewed in isolation. (People v. Moore, supra, 44 Cal.App.4th at pp. 1330-1331.) We agree with the Attorney General that, in the context of the charge and considering the jury instructions as a whole, the term simple assault in CALJIC No. 5.54 has a similar meaning as the term non-deadly force does in CALCRIM No. 3471. CALJIC No. 5.54 correctly informed the jury, just as CALCRIM No. 3471 would have, that defendant could use reasonable deadly force in self-defense, even if he were the initial aggressor, if the victim of defendants simple or non-deadly assault responded in a sudden and deadly counterassault.

CALJIC No. 5.17

In addition to the instructions on the general principles concerning self-defense, the court gave CALJIC No. 5.17 (2004 Revision)(Actual but unreasonable belief in necessity to defendmanslaughter). The instruction informed the jury: A person who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully but does not harbor malice aforethought and is not guilty of murder. This would be so even though a reasonable person in the same situation and knowing the same facts would not have had the same belief. Such an actual but unreasonable belief is not a defense to the crime of voluntary or involuntary manslaughter. [] As used in this instruction, an imminent peril or danger means one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer. [] However, this principle is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversarys use of force, attack or pursuit. [] This principle applies equally to a person who kills in purported self-defense.

On appeal, defendant contends that, if, as the California Supreme Court noted in [People v.] Barton [(1995) 12 Cal.4th 186, 199-200 (Barton)], the sole difference between imperfect (unreasonable) self-defense and true self-defense is the aspect that imperfect self-defense does not require the defendants fear to be reasonable, then all of the ancillary rules of self-defense, such as the assailed person need not retreat (CALJIC No. 5.50), actual danger is not necessary (CALJIC No. 5.51) and the regaining of the right of self-defense by the initial aggressor, . . . are equally applicable to imperfect self-defense. However, in this case, these critical matters were never told to the jury by way of appropriate instructions from the trial court. That was error. [] Furthermore, the error in question was compounded by the fact that in [CALJIC No. 5.17] the jury was told that imperfect self-defense . . . is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversarys use of force, attack or pursuit. . . . While this portion of the instruction on imperfect self-defense is correct as far as it goes . . . it becomes an inaccurate, misleading and an erroneous statement of the law, where, as in the instant case, there is an evidentiary basis for giving, as the trial court did in his case for the true defense of self-defense, an instruction on the right of the initial aggressor to regain the availability of self-defense.

The Attorney General contends that defendants claim was waived due to his failure to request clarifying instructions; that there is no sua sponte duty to relate the three concepts of self-defense to imperfect self-defense, because the standard instructions properly explained the two concepts; and, that any error was harmless.

Barton distinguished between the trial courts broad duty to instruct on lesser included offenses and its narrower obligation to instruct on particular defenses. (Barton, supra, 12 Cal.4th at p. 199.) Barton established that unreasonable self-defense is, . . . not a true defense; rather it is a shorthand description of one form of voluntary manslaughter. And voluntary manslaughter, whether it arises from unreasonable self-defense or from a killing during a sudden quarrel or heat of passion, is not a defense but a crime; more precisely, it is a lesser offense included in the crime of murder. Accordingly, when a defendant is charged with murder the trial courts duty to instruct sua sponte, or on its own initiative, on unreasonable self-defense is the same as its duty to instruct on any other lesser included offense: this duty arises whenever the evidence is such that a jury could reasonably conclude that the defendant killed the victim in the unreasonable but good faith belief in having to act in self-defense. (Id. at pp. 200-201.)

The California Supreme Court in People v. Randle (2005) 35 Cal.4th 987 (Randle), explained: In [In re] Christian S. [(1994) 7 Cal.4th 768 (Christian S.)], we observed, It is well established that the ordinary self-defense doctrineapplicable when a defendant reasonably believes that his safety is endangeredmay not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversarys attack or pursuit is legally justified. [Citations.] It follows, a fortiori, that the imperfect self-defense doctrine cannot be invoked in such circumstances. For example, the imperfect self-defense doctrine would not permit a fleeing felon who shoots a pursuing police officer to escape a murder conviction even if the felon killed his pursuer with an actual belief in the need for self-defense. (Christian S., supra, 7 Cal.4th at p. 773, fn. 1.) (Randle, supra, at p. 1001.)

Defendant was entitled to invoke the doctrine of imperfect self-defense because, although defendants criminal conduct certainly set in motion the series of events that led to the fatal stabbing, a retreat by defendant would have extinguished the legal justification for Atondos attack on defendant. (Randle, supra, 35 Cal.4th at p. 1002.) And, as defendant argues, the record would support a conclusion that Atondo was taking the law into his own hands when he attacked defendant in the kitchen as defendant was attempting to retreat. (Ibid.) Defendant told Aguirre both in their telephone conversation and in his letter that he was attempting to leave when Atondo attacked him in the kitchen.

CALJIC No. 5.17 as given informed the jury that defendant was entitled to invoke the doctrine of imperfect self-defense in order to reduce the charge of murder to manslaughter as long as defendant did not create the circumstances which justified Atondos attack on him. If defendant was retreating at the time of Atondos attack, he was no longer creating circumstances which justified Atondos attack on him. Thus, the trial court properly instructed on the doctrine of imperfect self-defense, including telling the jury when it was not available.

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. [Citation.] (People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012.) In this case the trial court gave the standard instruction defining the doctrine of imperfect self-defense, and defendant did not ask the court to modify or amplify the instruction. Accordingly, defendants claim of error is waived unless his substantial rights were affected by the standard instruction. That is, if defendant was prejudiced by the instruction as given, then no request for amplification or modification was required. ( 1259; People v. Hannon (1977) 19 Cal.3d 588, 600; People v. Croy (1985) 41 Cal.3d 1, 12, fn. 6.)

In this case we conclude that defendant was not prejudiced by the instruction, CALJIC No. 5.17, as given. It is well established that [an] instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. [Citation.] (Estelle v. McGuire, supra, 502 U.S. 62, 72.) The trial court fully instructed the jury on defendants theory of defense, that he stabbed Atondo in self-defense and with no intent to kill him. The courts instructions fully covered the concept of self-defense and the doctrine of imperfect self-defense. By finding that the killing was intentional and involved the infliction of torture ( 190.2, subd. (a)(18)), the jury necessarily rejected the defense theories of self-defense and imperfect self-defense. Based on the entire record on appeal, including the evidence and the entire charge to the jury, we cannot say that, had the court amplified or modified CALJIC No. 5.17 as defendant now claims, it is reasonably probable that a more favorable result would have occurred. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)

CALJIC No. 8.73

When instructing the jury on its duty in finding the degree of the crime charged, the court gave CALJIC Nos. 8.70 (Duty of jury as to degree of murder), 8.71 (Doubt whether first or second degree murder), 8.72 (Doubt whether murder or manslaughter), 8.74 (unanimous agreement as to offensefirst or second degree murder or manslaughter), and 8.75 (jury may return partial verdicthomicide). The court did not give CALIC No. 8.73 (Evidence of provocation may be considered in determining degree of murder), and there is nothing in the record indicating that defendant requested the instruction.[8]

On appeal, defendant contends that the court prejudicially erred in failing to give CALJIC No. 8.73 sua sponte, particularly in light of the fact, . . . the trial court gave a full set of instructions on how provocation can reduce murder to voluntary manslaughter. In People v. Wickersham [(1982)] 32 Cal.3d 307, 329-330, the California Supreme Court specifically held that a trial court has a sua sponte duty to give an instruction, such as CALJIC No. 8.73, on provocation reducing first degree murder to second degree murder.

The Attorney General contends that any error was waived; that there is no sua sponte duty to give CALJIC No. 8.73; that there was no substantial evidence to support the giving of CALJIC No. 8.73; and, that any error was harmless.

[U]nder the principles expressed in CALJIC No. 8.73, provocation is relevant only to the extent it bears on the question whether defendant premeditated and deliberated. (People v. Saille [(1991)] 54 Cal.3d [1103,] 1119.) Because CALJIC No. 8.73 relates the evidence of provocation to the specific legal issue of premeditation and deliberation, it is a pinpoint instruction as that term was defined in People v. Saille, supra, 54 Cal.3d at pages 1119-1120, and need not be given on the courts own motion. [Citations.] (People v. Rogers (2006) 39 Cal.4th 826, 878-879; accord, Use note to CALJIC No. 8.73 (Fall 2006 ed.).) Wickersham . . . held only that an instruction on second degree murder must be given when the evidence supports the theory that the defendant killed in response to provocation and thus without premeditation and deliberation. Wickersham did not state that the trial court must explain the principles spelled out in CALJIC No. 8.73. (People v. Rogers, supra, 39 Cal.4th at p. 879.)

In this case, the court instructed the jury with CALJIC No. 8.30 on unpremeditated murder of the second degree. Defendant did not request that the court give CALJIC No. 8.73. As CALJIC No. 8.73 is a pinpoint instruction that need not be given on the courts own motion, no error has been shown.

Sufficiency of the Evidence ofTorture

The court instructed the jury pursuant to CALJIC No. 8.81.18 as follows: To find that the special circumstance referred to in these instructions as murder involving infliction of torture is true, each of the following facts must be proved: [] 1. The murder was intentional; and [] 2. The defendant intended to inflict extreme cruel physical pain and suffering upon a living human being for the purpose of revenge, extortion, persuasion or for any sadistic purpose, and [] 3. The defendant did in fact inflict extreme cruel physical pain and suffering upon a living human being no matter how long its duration. [] Awareness of pain by the deceased is not a necessary element of torture.

On appeal, defendant contends that there was insufficient evidence to support the jurys finding that the murder of Atondo involved torture under section 190.2, subdivision (a)(18). Specifically, it is defendants position that there is no substantial evidence in the record that at any time during the attack on Raymond Atondo, did defendant have the necessary intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion or for any sadistic purpose. The Attorney General contends that defendants argument is without merit.

In reviewing a challenge to the sufficiency of the evidence under the due process clause of the Fourteenth Amendment to the United States Constitution and/or the due process clause of article I, section 15 of the California Constitution, we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidencethat is, evidence that is reasonable, credible, and of solid valuefrom which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citations.] (People v. Cole (2004) 33 Cal.4th 1158, 1212.)

[F]or purposes of proving murder by torture, the intent to inflict extreme pain may be inferred from the circumstances of the crime, the nature of the killing, and the condition of the victims body. [Citation.] But we also have cautioned against giving undue weight to the severity of the victims wounds, as horrible wounds may be as consistent with a killing in the heat of passion, in an explosion of violence, as with the intent to inflict cruel suffering. [Citation.] (People v. Cole, supra, 33 Cal.4th at pp. 1213-1214.) [T]he prosecution was not required to prove that the acts of torture inflicted upon [the victim] were the cause of his death. [Citation.] (People v. Bemore (2000) 22 Cal.4th 809, 843. Section 190.2, subdivision (a)(18) requires only some proximity in time [and] space between the murder and torture. [Citation.] The statute obviously does not apply where no connection between the two events appears. [Citation.] (People v. Bemore, supra, 22 Cal.4th at p. 843.)

In this case, there was evidence that defendant used a stun gun on Atondo two or three times prior to inflicting the stabbing wounds that caused Atondos death. Jesalia testified that she saw defendant zap Atondo on the chest with something, causing him to fall. Raymond testified that he heard buzzing, like from a bug zapper, coming from Atondos apartment. Injuries consistent with a stun gun having been used on Atondo two or three times prior to his death were observed during his autopsy. In addition, there was evidence that a stun gun causes a tremendous amount of pain in a victim, but does not immobilize the victim, and that it is meant to cause so much pain that the victim will stop resisting. There was also evidence that defendant owned a stun gun at the time of Atondos death. This is substantial evidence that defendant intended to inflict extreme cruel physical pain and suffering for the purpose of revenge or persuasion, and that he in fact did so by use of a stun gun just prior to killing Atondo. Even though these acts did not actually cause Atondos death, substantial evidence supports the finding that the murder involved the infliction of torture within the meaning of section 190.2, subdivision (a)(18). (People v. Bemore, supra, 22 Cal.4th at p. 843.)

Instructions on Torture

Defendant separately contends, for the same reasons as he expressed above, that the trial court had a sua sponte duty to give an instruction such as CALJIC No. 8.73 on the relationship of provocation to the necessary mental state in the special circumstance of murder involving torture, and that the failure to do so was prejudicial error. This is particularly true, since, as pointed out [above], the trial court in fact gave the jury full and complete instructions on how provocation could reduce murder to voluntary manslaughter . . . . As we stated above, CALJIC No. 8.73 is a pinpoint instruction relating to premeditation and deliberation that need not be given on the courts own motion. Accordingly, the trial court had no duty to give such an instruction on the relationship of provocation to the special circumstance of murder involving torture.

DISPOSITION

The judgment is affirmed.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

__________________________

Mcadams, J.

_________________________

duffy, J.

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[1]All further statutory references are to the Penal Code.

[2]A copy of the e-mail message was admitted into evidence as exhibit No. 43. The message reads: ok, [] I couldnt help myself again. Guess youre not going to respond to my message, . . . just as I figured. Probably still pissed off at me for telling Jamie about you raping me, . . . WHICH YOU DID! Youre such a fucking pig, . . . I cant get that out of my mind. I thought . . . well, lets not go there. I see you have another piece of ass to fuck, huh? [] Yeah, . . . I saw Celia getting into her car with you in the white truck right behind her gold car. And dont even try to deny it because youll just continue to be nothing more that a fucking li[a]r, . . . as usual! Youre doing what you want. Im getting fucked by someone else too, . . . so I guess we[re] even there. I need to vent, so if you plan on responding back to my message, Ill just play along and do the dumbgirl part where I wont even know what youre talking about. Oh!, . . . but youll probably like that anyways because youre into fucking brainless women anyways; . . . or the ones that are at least easy for you to rape, that is! I feel so sorry for that little girl of yours because she has the kind of father that you are. Still think Im psyco? Oh, . . . or are you having you daughter take care of you in that way now? [] Always Ruby.

[3]Four other people also lived at defendants residence.

[4]Miranda v. Arizona(1966) 384 U.S. 436.

[5]Aguirre testified that she did not write the number 7 that was on the paper.

[6]The letter states in part: This whole ordeal is such a nightmare. None of this wasnt or shouldnt have happened as any of it was the furthest thing from my mind, at least my intentions. Youve got to believe that, babe. I only went there to simply talk to the man and nothing more. Cant also stop thinking about Salia [] the little girl. From an invitation to come in and talk calmly to a full blown physical altercation, I cant imagine what she must have thought what had gone wrong, but only how frightened that poor girl surely had to have been. My prayers have been constantly on her and her father, for you and our peanut, as well Ive been praying for too.

[7]Defendant originally objected to CALJIC No. 5.56, but withdrew the objection.

[8]CALJIC No. 8.73 states: If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation.