Sonoma County Super. Ct. No. SCR552973
The opinion of the court was delivered by: Richman, J.
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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 ...