IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
December 29, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
BRET ARNOLD MATZ, DEFENDANT AND APPELLANT.
Sonoma County Super. Ct. No. SCR552973
The opinion of the court was delivered by: Richman, J.
P. v. Matz CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Bret Arnold Matz guilty of second degree murder involving the personal use of a deadly weapon (Pen. Code, §§ 187, 12022, subd. (b)(1)). The trial court sentenced him to state prison for a total term of 36 years to life. Defendant appeals, contending that CALCRIM No. 852, with which the jury was instructed, suffers from constitutional defect. We conclude otherwise, and affirm.
Beginning in May 2008, defendant commenced a romantic relationship with Robert Guess. In addition to living together, they shared an affinity for alcohol, which led to frequent arguments and violence. The violence was reciprocal, each giving as good as he got. Guess also had a history of alcohol-fueled violence and truculence with third parties.
Defendant testified that on January 1, 2009, he and Guess argued until the liquor was gone. Violence ensued. Household furnishings were thrown and broken. When defendant collected some of his effects and prepared to leave, the violence from Guess escalated. Defendant found himself on the ground "in a puddle of blood." As defendant got to his feet, Guess continued to hit defendant was various objects. When Guess grabbed defendant by his throat, defendant hit Guess's head three times with a table lamp. Remorse set in. Defendant thought of killing himself with a knife, but could not do it.
Defendant further testified that the next day he bought a bottle of vodka and drank it in a park. About noon, defendant staggered into a boutique, drunk and agitated. Then he lay down on the floor and slept for a couple of hours. When defendant awoke, he began crying and said "I hit him [Guess] with a lamp and I killed him." Defendant left the boutique, and bystanders heard him say "I killed my love," and "[my] man is dead and [I] killed him." Later that day, in a hospital, defendant told a police officer that "Yes, . . . I killed my man," and "this is for real, murder, murder is for real." The parties stipulated that defendant's blood alcohol level at 6:38 p.m. on January 2 was .30 percent.
The jury was instructed with CALCRIM No. 852 as follows:
"The People presented evidence that the defendant committed domestic violence that was not charged in this case, specifically an incident alleged to have occurred on or about October 1, 2008.
"Domestic violence means abuse committed against an adult who is a cohabitant.
"Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another in reasonable fear of imminent serious bodily injury to himself or herself or to someone else.
"The term cohabitant means two unrelated adults living together for a substantial period of time, resulting in some permanency of the relationship. Factors that may determine whether people are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same residence, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) the parties holding themselves out as husband and wife, (5) the parties' registering as domestic partners, (6) the continuity of the relationship, and (7) the length of the relationship.
"You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.
"If the People have not met this burden of proof, you must disregard this evidence entirely.
"If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from the evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit murder in violation of Section 187(a) of the Penal Code, as charged here. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of murder, in violation of Section 187(a) of the Penal Code. The People must still prove the charge beyond a reasonable doubt"
The event referred to in the instruction was one of the prior incidents between Guess and defendant. The jury heard evidence that Guess was hospitalized for seven-to-nine days in October 2008 with multiple rib fractures and a stab wound in the chest. Defendant testified that the wound was caused by a cake server, which he threw at Guess after Guess attacked him. He described the particulars as follows: "It started off as benign as throwing a cake. He threw cake at me, I threw the whole cake back at him. He threw his fork and stuck me in the back. And I turned around and I flung the cake server at him and it looks like it just flared off. It didn't look like it was that bad. He was coming at me with a plate and a knife, until I seen the blood, that's when I forced him down," which might have caused one of the broken ribs, but "All the others Robert said were caused by the police."
Defendant argues that the instruction violated due process by reducing the prosecutor's burden to prove defendant's guilt of the charged offense beyond a reasonable doubt. Specifically, the instruction is asserted to have conveyed the impression that defendant "had a disposition to commit murder and did commit murder." It also "failed to inform the jury of self-defense principles" and thus "lessened the prosecution's burden of proof by allowing the jury to infer Matz's state of mind from such evidence that did not rationally provide factual support for such an inference."
At first glance, defendant appears to be mounting the familiar "propensity" argument that has been repeatedly rejected following enactment of Evidence Code sections 1108 and 1109. Our Supreme Court has held that allowing a jury to hear evidence about uncharged sexual offenses--as authorized by Evidence Code section 1108--and to consider those offenses in determining whether an accused committed the charged offense, does not violate due process or reduce the prosecutor's burden of proving guilt beyond a reasonable doubt. (People v. Reliford (2003) 29 Cal.4th 1007, 1015-1016; People v. Falsetta (1999) 21 Cal.4th 903, 919-920.)
This court, among other Courts of Appeal, has reached similar conclusions regarding uncharged acts of domestic violence--as authorized by Evidence Code sections 1101 and 1109--and the correlative instruction. (People v. Johnson (2010) 185 Cal.App.4th 520, 529 and decisions cited; People v. Brown (2000) 77 Cal.App.4th 1324, 1331-1336.) As one Court of Appeal recently explained:
"CALCRIM No. 852 makes clear the evidence of uncharged acts of domestic violence may only be considered at all if it has been established by a preponderance of the evidence and explains what is meant by that burden of proof. The instruction also explains that if that burden is not met, the evidence must be disregarded entirely.
"[¶] . . . CALCRIM No. 852 explains that if the jury finds the defendant committed the uncharged acts, it may but is not required to conclude the defendant was disposed to or inclined to commit domestic violence and may also conclude that the defendant was likely to commit and did commit the crimes charged in the case. . . . CALCRIM No. 852 clarifies that even if the jury concludes the defendant committed the uncharged acts, that evidence is only one factor to consider, along with all the other evidence and specifies that such evidence alone is insufficient to prove the defendant's guilt on the charged offenses. CALCRIM No. 852 then goes on to state that the People must still prove each element of every charge beyond a reasonable doubt." (People v. Reyes (2008) 160 Cal.App.4th 246, 252; cf. People v. James (2000) 81 Cal.App.4th 1343 [prior version of CALJIC No. 2.50.02 (1997 rev.) which lacked No. 582's concluding clarifications unconstitutionally allowed for conviction based on preponderance standard of proof].)
The Attorney General is thus on sound ground in asking us to apply the principle that "[a] party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial." (People v. Hillhouse (2002) 27 Cal.4th 469, 503.)
Perhaps fearing defeat at the hands of this principle, defendant makes no direct challenge to the instruction in the abstract. But he does contend it needed to be tweaked before being used in his case. In his words, the instruction as given "failed to properly instruct the jury on the factual prerequisites it needed to find before it could use the October 2008 incident as evidence that Matz committed murder." As defendant sees it, the "factual prerequisites" are whether he acted in self-defense and, unless and until the jury made that determination, the October 2008 incident could not be validly considered by the jury. As he puts in his opening brief: "The jury should have been instructed that, unless the prosecution could prove that Matz did not act in lawful self-defense during the October 2008 incident, his conduct could not be used to conclude that he committed murder."
Defendant also attacks the instruction because "it prevented the jury from drawing the rational inference that, if he acted in self-defense in October 2008, it was likely that he acted in self-defense in January 2009." "If the jury found that Matz acted in self-defense in October 2008, then that incident would become evidence that Matz did not commit murder. In October 2008, Guess continued to come at Matz with a knife even though he had been stabbed in the chest. Based on the October 2008 incident, in which a large amount of force did not stop Guess, Matz would have known in January 2009 that even a serious injury would not stop Guess. If Matz had such knowledge, then use of a greater amount of force would be justified."
Defendant also charges the instruction with failing to advise the jury "that it needed to find that Matz acted with malice aforethought in October 2008 in order to infer that he had malice aforethought at the time of the killing" when "there was no rational reason why the October 2008 incident could not also be used as evidence that Matz committed manslaughter. . . . [¶] . . . [¶] The evidence of the October 2008 incident was sufficient for the jury to infer that Matz acted with the same mental state as that required for voluntary manslaughter or even that he acted in justifiable self-defense. If the jury had been required to make a finding regarding Matz's mental state in October 2008 before using it as evidence of murder, the jury could have concluded that the evidence of his mental state in October 2008 did not support a conclusion that Matz had the same mental state at the time of the killing as that needed for second-degree murder."
We do not agree with defendant's arguments, which suffer from a number of flaws.
It is fairly obvious that defendant is attempting to get around his trial counsel's failure to request modification of the instruction by trying to place the onus on the trial court for failing to make the modifications on its own initiative. However, as shown above, the general point of defendant's constitutional argument has already been resolved against him. We take it as established that CALCRIM No. 852 does not subvert the prosecution's burden of proof. Ingenuity in reframing the particulars of his contention should not be allowed to reopen a settled issue of law.
In addition, "not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is ' "whether the ailing instruction . . . so infected the entire trial that the resulting conviction violates due process." ' [Citation.] ' "[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.' " [Citation.] If the charge as a whole is ambiguous, the question is whether there is a ' "reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.' " (Middleton v. McNeil (2004) 541 U.S. 433, 437; accord, People v. Huggins (2006) 38 Cal.4th 175, 192.) Defendant's approach essentially treats CALCRIM No. 852 in splendid solitude. But we are required to consider not just No. 852, but all of the instructions. The jury knew about this integrative approach because it was instructed "Pay careful to all of these instructions and consider them together." (Italics added.) We presume that the jury followed this instruction, and all others. (E.g., Francis v. Franklin (1985) 471 U.S. 307, 325, fn. 9; People v. Jablonski (2006) 37 Cal.4th 774, 834.)
Defendant does note, in a footnote in his brief, that the jury was instructed with CALCRIM No. 505 ("Justifiable Homicide: Self-Defense or Defense of Another"), but he nevertheless continues to fault the trial court because No. 505 "did not instruct the jury that self-defense could apply to other, uncharged acts that were not murder." No. 505 did advise the jury that "If you find that Robert August Guest threatened or harmed the defendant in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable. [¶] If you find that the defendant knew that Robert August Guess had threatened or harmed others in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable. [¶] Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measures against that person." The jury was also instructed with CALCRIM Nos. 570 and 571 that if they concluded defendant acted in either sudden quarrel/heat of passion provocation or the use of imperfect self-defense, he would be guilty of no more than voluntary manslaughter.
What defendant relegates to a footnote--the instruction on self-defense--was in fact the heart of the defense argument. In her closing argument, defense counsel hewed closely to the excerpts of CALCRIM No. 505 quoted above: "In the face of deadly violence or a serious threat . . . deadly force is justified. Not tentative slight force, deadly force is justified. This is what the law tells you. I urge you to spend some time looking over CALCRIM 505 and to consider the history that was presented to you, not as a distraction, but to consider it exactly the way CALCRIM 505 tells you. The history of violence by Robert [Guess] can be considered in assessing Bret's fear during this fight. [¶] You heard that Robert ha[d] a mean temper when he [was] drunk. He lashed out and . . . could be quite aggressive and quite combative. [¶] This history between Bret and Robert can also be considered in assessing Bret's fear, CALCRIM 505 tells you that. They fought, they had a relatively short relationship, and they fought a lot in that time. . . . As time went on it got worse and they fought more . . . and had injuries that were visible . . . . Bret is covered with wounds in various states of healing telling you they are from different fights on different dates at different points in times."
The fact that defense counsel asked the court to instruct with CALCRIM No. 852 thus assumes an entirely sensible construction. Apart from perhaps anticipating that the instruction would be given at the prosecutor's request, it provided a distinct advantage for the defense because it broadened the scope of the combative relations between defendant and the victim beyond the night of the killing. The instruction allowed the defense to point to a previous incident involving deadly force where Guess had been the aggressor. It therefore put legitimate substance behind the defense argument that defendant's actions on the night on January 1, 2009, had to be seen in the perspective of the entirety of the relationship.
Appellate counsel faults trial counsel for not requesting the clarifications now identified in the opening brief, concluding that this inaction amounted to constitutionally ineffective assistance. However, a valid possible tactical justification is apparent. Trial counsel could decide not to ask for pinpoint instructions, trusting in the belief that the jury would have an easier time absorbing a broadbrush approach, and that the jury could connect the dots for themselves.
Instructions are examined from the standpoint of how a reasonable jury is likely to have understood the instruction. (E.g., People v. Smithey (1999) 20 Cal.4th 936, 963; People v. Welch (1999) 20 Cal.4th 701, 766.) There was nothing in the instructions which, as defendant puts it, "prevented the jury from drawing the rational inference that, if he acted in self-defense in October 2008, it was likely that he acted in self-defense in January 2009." Phrased differently, there was nothing in the instruction that prevented the jury from making the logical assumption that the self-defense principles applicable to the January 2009 homicide would be equally applicable to the October 2008 incident. We believe this is how a group of reasonable jurors would have construed the entirety of the instructions. And it certainly appears to have been the premise of defense counsel's argument that the jury should examine the combative history of the defendant and the victim.
And, although defendant is understandably reluctant to acknowledge the point, there was a tendency in reason to the previous incident. The October 2008 incident between defendant and Guess was treated for purposes of the CALCRIM No. 852 as "domestic violence," yet it could certainly be viewed as a near-homicide committed by defendant. It would therefore be relevant to a murder charge because it clearly possessed "some tendency in reason to show that the defendant is predisposed to engage in conduct of the type charged." (People v. Earle (2009) 172 Cal.App.4th 372, 397.) Similarly, defendant's final point, that No. 852 did not advise the jury "that it needed to find that Matz acted with malice aforethought in October 2008 in order to infer that he had malice aforethought at the time of the killing," is something sensible trial counsel could very legitimately choose to down play. Directing the jury's attention to a prior instance where defendant may have displayed malice was hardly compatible with the defense strategy of unintended death in the course of alcoholic self-defense.
After a careful examination of defendant's arguments, we believe that perhaps they proceed from a misapprehension as to the scope of what the instruction permits. CALCRIM No. 852 does not condition use of the uncharged act only if it has passed through the ordinary process of a criminal trial. Most obviously, it permits the jury to consider the uncharged offense "only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged domestic violence." This would seem contrary to defendant's insistence that the jury would have to consider and reject possible defenses before accepting the uncharged offense as proven and thus qualified for the jury's consideration in conjunction with the charged offense. There is also a very practical objection to imposing a sua sponte responsibility for modifying the instruction to include possible defenses--how is the trial court to know what defenses to the uncharged offense the defendant wants the jury to consider? This is one of the reasons there is no general obligation to instruct on defenses unless requested by the defense itself. (E.g., People v. Breverman (1998) 19 Cal.4th 142, 157; People v. Barton (1995) 12 Cal.4th 186, 195.) This would be even more sensible when the defense is, like self-defense, dependent on the defendant's mental state, evidence of which would ordinarily come from the defendant. It would seem anomalous to impose a sua sponte requirement for uncharged offenses that is more onerous than imposed for charged offenses. We decline to recognize such an obligation.
There is one other matter that requires mention.
Near the end of trial, the court was advised that the prosecutor on the previous day had "a contact with a different public defender client who they are not inclined to name, who is not Mr. Matz, and in the course of that interview that unnamed person revealed some conversation with Mr. Matz about Mr. Matz's case." The defense requested discovery, and further advised the court that the prosecutor "would be seeking to invoke the privilege under Evidence Code Section 1040 and asking the Court to approve of them not disclosing it at this time." The conversation mentioned was preserved on a CD, and after the court listened to it in chambers, counsel were informed that the court "did not find anything discoverable on that disk." Defendant asks this court to review the disk, which the trial court placed under seal, "to determine whether disclosure of the information is required under state or federal law." We have reviewed the disk, and we agree with the trial court.
The judgment of conviction is affirmed.
Haerle, Acting P.J.
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