People v. Aris

• Decision Date: 17 November 1989
• Docket Number: No. E005418,E005418
• Citation: 215 Cal.App.3d 1178,264 Cal.Rptr. 167
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Brenda Denise ARIS, Defendant and Appellant.

Page 167

264 Cal.Rptr. 167

215 Cal.App.3d 1178

PEOPLE of the State of California, Plaintiff and Respondent, v. Brenda Denise ARIS, Defendant and Appellant.

No. E005418.

Court of Appeal, Fourth District, Division 2, California.

Nov. 17, 1989.

Certified For Partial Publication. ¹

Review Denied March 1, 1990.

Appellate Defenders, Inc. and Roberta K. Thyfault, Staff Atty., San Diego, under appointment by the Court of Appeal, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Arnold O. Overoye, Acting Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Maxine P. Cutler and Frederick R. Millar, Jr., Supervising Deputy Attys. Gen., for plaintiff and respondent.

CAMPBELL, Presiding Justice.

A jury convicted the defendant of second degree murder of her husband in August 1986. (Pen.Code, §§ 187, 189.) ² The jury also found that the defendant personally used a firearm. (§ 12022.5.) Defendant was sentenced to 15 years to life and the firearm use enhancement was stayed.

Defendant contends that the trial court erred: (1) in excluding expert testimony that the defendant was a battered woman and how that affected her mental condition at the time of the killing; (2) in refusing to instruct the jury on self-defense; (3) in instructing the jury on unreasonable self-defense and refusing to give three pinpoint instructions on that issue; (4) in instructing the jury about "heat of passion" and "cooling off"; and (5) in excluding evidence of the victim's violent character. Defendant also asserts as grounds for reversal prosecutorial and juror misconduct.

I FACTS

The defendant testified that her husband had beaten her, often severely, and that she had left him many times during their ten-year relationship. By a mixture of threats and cajoling, he invariably convinced her to take him back. Numerous witnesses for the defense testified to the beatings.

On the night of the killing, defendant testified that her husband beat her and threatened that "he didn't think he was going to let me live till the morning." She believed he was "very serious." She waited about ten minutes to make sure he was asleep, then went next door to get some ice to ease the pain of the blows to her face. She found a handgun on the top of the refrigerator and took it "For protection." She testified she thought she needed it for protection because "I felt when I go back ... he'd probably be awake and he would start hitting me again." Walking back to her residence she was thinking, "that I was tired of it. I'd had it." She denied intending to kill her husband at that time. When she returned to the bedroom, "I then sat down on the bed and I felt that I had to do it. It would be worse when he woke up." She testified that she had to do it "Because I felt when he woke up that he was then going to hurt me very badly or even kill me."

Defendant then shot her husband five times in the back while he was asleep in the bed on his side. The victim died of the gunshot wounds.

II SELF-DEFENSE AND THE BATTERED WOMAN

This case requires us to apply the law of self-defense in the context of a battered woman killing the batterer while he slept after he had beaten the killer and threatened serious bodily injury and death when he awoke. We first decide that the settled law in California requires an honest belief that the killer is in imminent danger of death or great bodily injury from the victim for both perfect and imperfect self-defense. Next we deal with the defendant's asserted right upon request to an instruction on reasonable self-defense and find no basis for giving such an instruction given the California definition of imminence. We find error in the trial court's exclusion of expert testimony about a psychological evaluation of the defendant that she suffered from battered woman syndrome and about how her experiences as a battered woman affected her state of mind at the time of the killing. However, we hold that in the unique circumstances of this case that error was harmless.

Self-defense is the subject of statutory and case law. The relevant portions of section 197 state:

"Homicide is ... justifiable when committed by any person in any of the following cases:

"..........................

"3. When committed in the lawful defense of such person, ... when there is Section 198 makes an important qualification:

reasonable ground to apprehend a design to commit ... some great bodily injury, and imminent danger of such design being accomplished; ..."

"A bare fear of the commission of any of the offenses mentioned in subdivisions two and three of the preceding section, to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone."

For purposes of this opinion, self-defense may be analyzed as having two requirements: (1) the defendant's acts causing the victim's death were motivated by an actual (also referred to as "genuine" or "honest") belief or perception that (a) the defendant was in imminent danger of death or great bodily injury from an unlawful attack or threat by the victim and (b) the defendant's acts were necessary to prevent the injury; and (2) a reasonable person in the same circumstances would have had the same perception and done the same acts.

In California, perfect (also referred to as "reasonable" or "complete") self-defense requires both subjective honesty and objective reasonableness and completely exonerates the accused. Imperfect self-defense requires only subjective honesty and negates malice aforethought, reducing the homicide to voluntary manslaughter. (See People v. Flannel (1979) 25 Cal.3d 668, 674-680, 160 Cal.Rptr. 84, 603 P.2d 1.)

1. Instruction on Imminence

Defendant contends that the trial court erred in instructing the jury on the meaning of imminence as it relates to imperfect self-defense and in refusing to give three instructions requested by defendant related to that issue. Our resolution of this issue also affects our ruling on the trial court's refusal to instruct on perfect self-defense and the harmlessness of the exclusion of the expert testimony. There was no error in the court's instructions on imminence. Initially, the trial court instructed the jury pursuant to CALJIC No. 5.17 (4th ed., 1987 Pocket Part) as follows in pertinent part:

"A person who kills another person in the honest 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 cannot be found guilty of murder...."

Defendant does not contest the correctness of this instruction. The instruction follows the law as set forth in People v. Flannel, supra, that the defendant must actually believe that the danger is imminent--a belief that there is danger but that it is not imminent will not suffice. Although the Supreme Court in Flannel quotes from People v. Lewis (1960) 186 Cal.App.2d 585, 9 Cal.Rptr. 263 which is not altogether clear on this issue see 25 Cal.3d at p. 675, 160 Cal.Rptr. 84, 603 P.2d 1), the Supreme Court in Flannel and subsequent cases consistently requires an honest but unreasonable belief that the defendant is in imminent danger. (See, e.g.,: id., 25 Cal.3d at pp. 674, 160 Cal.Rptr. 84, 603 P.2d 1 ["An honest but unreasonable belief that it is necessary to defend oneself from imminent peril" (italics removed) ]; People v. Bloyd (1987) 43 Cal.3d 333, 354, 233 Cal.Rptr. 368, 729 P.2d 802 ["trial court instructed on voluntary manslaughter, correctly noting that 'there is no malice aforethought if the killing occurred ... in the honest but unreasonable belief in the necessity to defend oneself against imminent peril"].)

Throughout deliberations, the jury repeatedly requested clarification of the term "imminent." After several discussions with counsel and research by both counsel and the court, over objection by defense counsel, the trial court reread CALJIC No. 5.17, ascertained that this was the instruction with which the jury was having difficulty, and then gave the following instruction:

" 'Imminent peril,' as used in these instructions, means that the peril must have existed or appeared to the defendant to have existed at the very time the fatal shot The trial court then once again instructed the jury pursuant to CALJIC No. 1.01 (1979 Rev.) to remind them to consider the other instructions given about imperfect self-defense, of which the jurors had copies.

was fired. In other words, the peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with."

The jury adjourned to deliberate and soon returned with the verdict of second degree murder.

Defense counsel's objection was that the terms "imminent" and "immediate" must be differentiated, defining immediate as "something next in order, about to occur" and "more happening right away" and defining imminent as "more of a threatening and impending ... and impending is something that might or is about to occur."

The trial court's ultimate definition of imminence was based on the judge's scholarly review of the leading cases, and we agree with it. These authorities all defined imminence in the context of perfect self-defense; however, as pointed out above, the elements of the belief do not differ in perfect and imperfect self-defense, only the reasonableness of the belief differs. Thus, these cases are good authority for use in the present context of imperfect self-defense.

The definition of imminence in California has long been well settled. "A person whose life has been threatened by another, whom he knows or has reason to believe has armed himself with a deadly weapon for the avowed purpose of taking his life or inflicting a great personal...