PEOPLE v. TAPIA

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Luis Ramirez TAPIA, et al., Defendants and Appellants.

No. D000133.

Decided: September 29, 1988

David A. Kay, San Diego, Dennis A. Fischer, Santa Monica, John W. Bishop and Carlo Andreani, San Francisco, under appointment by the Court of Appeal, for defendants and appellants. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Rudolf Corona, Jr., Supervising Deputy Atty. Gen. and Yvonne H. Behart, Deputy Atty. Gen., for plaintiff and respondent.

Codefendants Luis Ramirez Tapia and Guillermo Licon Diaz were jointly charged with the murder of Frank V. “Ruben” Garcia.  (Pen. Code, § 187.)   They were tried separately.   A jury convicted Tapia of murder in the second degree with a true finding of gun use.   He was sentenced to a total of 17 years to life in prison.   Diaz was convicted of first degree murder with a true finding of firearm use.   He was sentenced to a prison term of 25 years to life plus 2 years for the firearm use.

Both defendants appeal.   Because we conclude the trial court erred in failing to instruct the jury on voluntary manslaughter based on a heat-of-passion theory, we reverse.

FACTS 2

Luis Tapia was an illegal entrant into the United States.   He came from Mexico in February 1982 seeking work.   Shortly after arriving in California, he met Manuel Mendoza who offered him a place to stay and introduced him to the use of heroin.   Tapia became an addict.

Guillermo Diaz was also an illegal alien and heroin addict who by 1982 had been living in this country for approximately 10 years.   After his common law wife of five years left him, Diaz also lived with Mendoza, who was his heroin supplier.

Ruben Garcia was released from jail during this time and came to live with Mendoza, Tapia and Diaz.3  Garcia was the chief of the “Sherman” gang whose violence and narcotics-related activities centered in the Sherman Heights area of San Diego.   Garcia himself was a heroin seller and user with a reputation as a violent bully.   He carried a gun and threatened people with it.   Garcia had been convicted of robbery with bodily injury and often robbed or extorted money from illegal aliens, many of whom lived in the Sherman Heights area.

Garcia ultimately forced Mendoza, Tapia and Diaz to leave their apartment.   He and his sidekick “Nacho” physically beat both Mendoza and Tapia and threatened them with a shotgun and other firearms.   Garcia knocked Mendoza's teeth out with the butt of a shotgun and threatened to kill him.   He threatened to kill both Tapia and Diaz if he saw them in “Sherman” again.   On two occasions, Nacho fired shots at Diaz as he was attempting to return home.   Diaz was told that Garcia had sent Nacho to kill him.

Following their expulsion, Tapia and Mendoza left the immediate Sherman Heights area and stayed with a friend of Mendoza's a short distance away.   Diaz went to stay with his brother, who lived in the same apartment building as Garcia.   Diaz was so scared of Garcia he would only venture outside at night.

Diaz was friendly with Michael Parker, a police informant.4  Approximately four days before Garcia was killed, Parker went to see Diaz, who told him about the constant threats by Garcia.   As he was leaving, Parker suggested Diaz accompany him and he would buy a six-pack of beer.   Diaz declined to leave because of his fear of Garcia but Parker insisted, promising to protect Diaz.   Diaz then gave Parker a .22 caliber revolver which Parker put in his jacket pocket.   As they walked to Parker's car, Garcia and Nacho approached with guns drawn demanding extortion money.   Diaz started screaming, “They're going to kill me Mike.   Help me.”   Unknown to Garcia, Parker had the revolver inside his pocket pointed at Garcia.   Parker testified, “I never came so close in my life to shooting someone as I did Ruben.”

The confrontation lasted about five minutes and ended when Diaz told Garcia and Nacho that Parker was a narcotics officer.   When they got to Parker's car, Diaz was shaking, stuttering and had tears in his eyes.   He asked Parker what he should do.   Parker suggested leaving the area but Diaz said he had nowhere to go.   Parker replied, “Then I suggest you blow their head [sic] off then because that's what I'd do.”

Two days before the killing, Parker again went to Diaz's apartment.   Diaz needed money and Parker had agreed to help him sell an automobile engine.   Parker drove Diaz to talk with someone who they thought might be interested in buying the engine.   As Parker waited in the car, Garcia and Nacho approached.   Garcia grabbed Diaz's sweater by the neck, placed his revolver against Diaz's right side and told him he was going to die.   Just then, a police car turned the corner and Garcia and Nacho put away their guns.   Diaz ran to Parker's car and jumped in, stuttering, “Did—did—did you see—did you see that?   They're going to kill me.   Let's get out of here.”   Commenting on both incidents, Parker stated, “If he hadn't told them I was a cop, and that other police officer didn't come by I believe somebody would have been dead.”

The next day, Mendoza called Diaz to tell him that Garcia and Nacho had been arrested.   They took the opportunity to go to their old apartment to retrieve some clothes.   Diaz found a .38 caliber handgun of Garcia's and took that as well.   That evening or the following morning, both Diaz and Tapia talked with Mendoza about what to do.   According to Diaz, Mendoza told him Tapia was going to kill Garcia and he (Mendoza) wanted Diaz to go along in case there was trouble.   Mendoza threatened to cut off Diaz's heroin supply if he didn't accompany Tapia.   Tapia testified that all three discussed the situation together and both he and Diaz agreed to participate in killing Garcia.

In the meantime, Garcia and Nacho had been released from jail.   Mendoza gave Tapia a .22 caliber handgun.   Diaz already had Garcia's .38 caliber gun.   Tapia and Diaz painted their faces black as an attempted disguise and drove with another friend of Mendoza's, Francisco “Pancho” Guisar, to the area near 19th and K Streets in Sherman Heights.   Mendoza had given Guisar $25 to purchase heroin from Garcia.   Following instructions, Guisar told Garcia that Mendoza was outside selling heroin.

Tapia and Diaz waited about 40 minutes.   As they were waiting, they were recognized by Adrian Leon, the manager of the apartments at 1911 K Street.   Leon asked Tapia and Diaz what they were doing.   They said they were going to kill Garcia and told Leon to get his friends out of the way.   Leon left to alert his friends.   He also intended to warn Garcia but Garcia was not immediately found.

A few minutes later, however, Garcia approached Leon and asked if he had seen Mendoza.   Because Diaz and Tapia were close—about 23 feet away—Leon did not tell Garcia about the impending danger.   Instead, he replied he had not seen Mendoza.   Leon then walked away, seeking to take himself out of the line of fire.   Tapia approached Garcia from behind and fired three shots into his back.   After Garcia fell, Diaz shot him once in the face.   Tapia and Diaz fled.   Garcia died at the scene a short time later.

DISCUSSION

I

Defendants' principal contentions in this appeal center on the trial court's failure to instruct the jury on voluntary manslaughter, a lesser included offense of murder.   The trial court concluded such instructions were not warranted by the evidence.   Defendants disagree, arguing that a verdict of voluntary manslaughter would have been supported on any of several different theories.   They rely on well-established law which requires the trial court to instruct sua sponte on necessarily included offenses where there is evidence from which a reasonable jury could find the defendant is only guilty of the lesser offense.  (People v. Wickersham (1982) 32 Cal.3d 307, 324–325, 185 Cal.Rptr. 436, 650 P.2d 311;  People v. Ramos (1982) 30 Cal.3d 553, 582, 180 Cal.Rptr. 266, 639 P.2d 908.)

A

 Both Tapia and Diaz requested voluntary manslaughter instructions based on a heat-of-passion theory.   Tapia's counsel analogized the situation to a battered wife who preemptively kills the batterer-spouse to prevent further beatings.   In rejecting the theory, the trial court concluded that because the last confrontation between the defendants and the victim had taken place two or more days before the killing, there was insufficient evidence to demonstrate that either Tapia or Diaz was acting under the influence of passion when they shot Garcia.

Traditionally and stereotypically, the heat-of-passion theory applies where the victim provokes the defendant to intense anger and the defendant kills as a result.  (See 2 LaFave & Scott, Substantive Criminal Law (1986) § 7.10, p. 255.)   The defense is unavailing, however, if the defendant had a sufficient “cooling off” period to allow his anger to subside.  (Id. at p. 265;  Perkins, Criminal Law (3d ed. 1982) p. 99.)   It is well-established in California that intense emotions other than anger may support a heat-of-passion theory.  (People v. Borchers (1958) 50 Cal.2d 321, 329, 325 P.2d 97.)   In particular, fear has been recognized as a motivation for an intentional killing which may mitigate the defendant's culpability.  (People v. Logan (1917) 175 Cal. 45, 49, 164 P. 1121;  see also Stevenson v. United States (1896) 162 U.S. 313, 321–322, 16 S.Ct. 839, 842, 40 L.Ed.2d 980;  Perkins, supra, at p. 98 (“Terror, for example, is one of the passions which may dethrone judgment and mitigate a killing to the level of voluntary manslaughter.”).)   Given the trial court's conclusion, the circumstances of this case require us to consider how a “cooling off” period should be analyzed in the context of defendants who were arguably motivated to kill by an intense fear that otherwise the victim would soon kill them.

In assessing whether the defendant acted under the “heat of passion,” California juries are instructed that “[t]he question to be answered is whether or not, at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.”  (CALJIC No. 8.42 (4th ed. 1979);  see People v. Logan, supra, 175 Cal. at p. 49, 164 P. 1121.)   But “if sufficient time elapsed between the provocation and the fatal blow for passion to subside and reason to return,” the defendant is guilty of murder.  (CALJIC No. 8.42, supra.)   Thus, the concept of a “cooling off” period fits nicely into the typical heat-of-passion case in which some event or series of events provokes the defendant to anger.   Anger, at least once provoked to a boiling point, generally diminishes with time so that over time, one expects “passion to subside and reason to return.”

Where passion is the result of fear rather than anger, however, the typical pattern of explosive provocation followed by abating emotional intensity is not necessarily applicable.   While anger is essentially a retrospective emotion, focussing back on the source of the provocation, fear has a significant prospective component, looking forward to what might happen.  (See Fiora–Gormally, Battered Wives Who Kill (1978) 2 Law & Human Behavior 133, 140.)   Because fear can feed on itself, the emotion can actually intensify over time as the feeling of impending doom imposes an increasing psychological burden.5

There is no question in this case that the series of beatings, assaults and threats to which Tapia and Diaz were subjected, coupled with their knowledge of Garcia's reputation for violence, was such as to make any rational person fear for his life.   Moreover, the facts are certainly susceptible of the interpretation that defendants' decision to kill Garcia was a product of such a fear.   The evidence indicates the killing took place within two days after Diaz was nearly killed by Garcia and Nacho.   Although Tapia's last confrontation with Garcia was more remote, he was aware of the later incidents involving Diaz and could reasonably believe the same fate awaited him the next time he encountered Garcia.

 The Attorney General suggests that manslaughter instructions should not be available because defendants killed Garcia only after they voluntarily confronted him.   This argument confuses distinct heat-of-passion and self-defense theories.   It is true that justification by way of self-defense and mitigation by way of imperfect self-defense are not available if the use of deadly force was not necessary given the circumstances as they existed (self-defense) or as the defendant subjectively believed them to be (imperfect self-defense).6  In contrast, however, a defendant acting under the “heat of passion” often actively seeks out the victim with the intent to kill him.   By definition, the use of deadly force is not necessary in such situations.   Yet the killing is mitigated because the defendant's decision to kill was the product of an emotional reaction caused by the victim's “adequate provocation.”

 Of course, in assessing whether the fear engendered by Garcia's actions was such as might cause a reasonable person to act emotionally rather than rationally, the jury would certainly be entitled to consider the alternatives available to Tapia and Diaz.   That issue, however, is not subject to resolution as a matter of law.   Both defendants were illegal aliens and heroin addicts and both testified they felt they had no one to turn to and nowhere else to go other than the Sherman Heights area which Garcia and his gang terrorized.   Such evidence would be appropriately evaluated by the jury in the context of the applicable “reasonable person” standard.

The analogy to battered wives suggested by Tapia's counsel at trial is not an altogether inapt one.7  Often the fear which eventually leads a woman to kill her husband is the product of repeated threats and beatings which occur over a long period of time.  (See Note, Partially Determined Imperfect Self–Defense:  The Battered Wife Kills and Tells Why (1982) 34 Stan.L.Rev. 615, 619;  Comment, The Battered Wife Syndrome:  A Potential Defense to a Homicide Charge (1978) 6 Pepperdine L.Rev. 213, 226–227.)   Although abused wives theoretically have several options short of resorting to violence, the viability of such options as a practical matter may be severely limited.  (See, e.g., Note, The Battered Wife's Dilemma:  To Kill or To Be Killed (1981) 32 Hastings L.J. 895, 901–902, 929;  Comment, Self–Defense:  Battered Woman Syndrome on Trial (1984) 20 Cal.Western L.Rev. 485, 488–490.)   One commentator has characterized the situation as follows:  “[T]he battered wife is constantly in a heightened state of terror because she is certain that one day her husband will kill her during the course of a beating.   The battered wife thus is literally faced with the dilemma of either waiting for her husband to kill her or striking out at him first.”  (Note, supra, 32 Hastings L.J. at p. 928;  see also Fiora–Gormally, supra, 2 Law & Human Behavior at p. 155 (“What is the cooling-off period in a situation where the beatings may be daily or weekly, increasingly more brutal, frequent, and unpredictable and where the fear intensifies cumulatively?”).)

Significantly, courts in several states have required instructions on a heat-of-passion theory in battered wife cases even where the wife chooses to kill the husband at a point in time where there is no imminent threat of physical harm.   In State v. Felton (1983) 110 Wisc.2d 485, 329 N.W.2d 161, for example, after a stormy relationship which included beatings and threats over many years, the abused wife shot her husband while he slept.   The Wisconsin Supreme Court held that trial counsel rendered ineffective assistance by failing to pursue a heat-of-passion theory.  “While it is true that a defendant's background is not in general relevant to the objective test for heat of passion, the question is how an ordinary person faced with a similar provocation would react.   The provocation can consist, as it did here, of a long history of abuse.   It is proper in applying the objective test, therefore, to consider how other persons similarly situated with respect to that type, or that history, of provocation would react.”  (Id. 329 N.W.2d at p. 172.)

A similar pattern, but with a less egregious history of abuse, was present in State v. Guido (1963) 40 N.J. 191, 191 A.2d 45.   There, the defendant's testimony if believed established that “although there were only a few incidents of actual injury, there was the constant threat of it from a man who had to have his way and who would not let go of a woman who had had her fill.”  (Id. 191 A.2d at p. 48.)   The evening of the killing saw threats and a verbal altercation between the defendant and the victim but no physical abuse.   After her husband fell asleep watching television, the defendant obtained his gun and contemplated suicide.   After deciding against it, she went to put the gun away.   Instead, she fired the weapon at her husband until it was empty.  (Ibid.)  The court held the jury should have been instructed on a heat-of-passion voluntary manslaughter theory.  “It seems to us that a course of ill treatment which can induce a homicidal response in a person of ordinary firmness and which the accused reasonably believes is likely to continue, should permit a finding of provocation.   In taking this view, we merely acknowledge the undoubted capacity of events to accumulate a detonating force, no different from that of a single blow or injury.”  (Id. 191 A.2d at p. 56;  accord State v. Kelly (1984) 97 N.J. 178, 478 A.2d 364, 384.)

 By analogy, we think the analysis in these cases and commentaries supports the giving of heat-of-passion instructions in this case.   Under California law, “the conduct of the defendant is to be measured by that of the ordinarily reasonable man placed in identical circumstances․”  (People v. Logan, supra, 175 Cal. at p. 49, 164 P. 1121.)   The Supreme Court has made clear on more than one occasion that the cumulative effect of a long series of provocatory acts may be considered by the jury in assessing the defendant's culpability.  (People v. Borchers, supra, 50 Cal.2d 321, 328–329, 325 P.2d 97;  People v. Berry (1976) 18 Cal.3d 509, 515–516, 134 Cal.Rptr. 415, 556 P.2d 777.)   There is no question but that Tapia and Diaz were terrorized by Garcia in the weeks before his death.   Whether their terror was such “as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection ․”  (People v. Logan, supra, 175 Cal. at p. 49, 164 P. 1121) and whether their decision to kill him was the product of such terror are questions for the jury to determine.8

Thus, applying well-settled principles of California homicide law to a fact situation the Supreme Court has recognized can give rise to a heat-of-passion defense, we conclude reversal is mandated.

B

 Tapia and Diaz also contend the trial court erred in failing to give manslaughter instructions on the theory that voluntary intoxication due to drug usage may negate the specific mental state required for murder.  (CALJIC No. 4.21 (4th ed. 1981).) 9  In the course of deliberations during Tapia's trial, the jury specifically asked, “Is there a California state law recognizing diminished capacity due to heroin usage?”   Over defense counsel's objection, the court responded there was no factual basis for the jury to even discuss voluntary intoxication.

The record reflects that both defendants were heroin addicts.   Tapia had injected heroin the day of the killing.   His first act after killing Garcia was to obtain another dose of heroin.

Diaz had been an addict for six years.   His habit required a fix every few hours.   On the day of and prior to the killing, Diaz ingested heroin and cocaine four times, including approximately an hour before the killing.   He testified, “I didn't really feel like going but I was really crazy on account of the drugs․”

Diaz's ex-wife Barbara Holdren testified that Diaz was “a different person” after taking drugs.  “[H]e's (pause) in a daze.   Like he's not even the same person.   Like he's another part of him coming out.”   She spoke with him by phone shortly after the shooting and testified she believed he was under the influence of drugs at that time.   Michael Parker, himself a former heroin addict, testified about Diaz's heroin addiction and its effects.   Parker confirmed that Diaz was “strung out” on heroin the day of the shooting.   According to Parker, a person with a heroin habit as significant as Diaz's would need a fix “every couple hours.”   Without it, “[y]ou get very sick, very nervous, antsy.   Your muscles start hurting, your stomach cramps up, you vomit orange bile from your stomach.   You sweat.”   Parker testified that the need for heroin affects the addict's judgment and ability to think clearly.

The trial court correctly ruled that no instruction concerning the effect of intoxication on mental state was warranted in Tapia's case.   There was no evidence from which a reasonable jury could conclude that Tapia's use of heroin affected his mental processes such that he did not entertain malice.10  (See People v. Flannel, supra, 25 Cal.3d at p. 684, 160 Cal.Rptr. 84, 603 P.2d 1.)

The issue with respect to Diaz is different because the evidentiary record is different.   Diaz testified that his decision to participate in killing Garcia was affected by his use of drugs.   This testimony was partially corroborated by Holdren and Parker who described how heroin affected Diaz and testified that Diaz was under the influence of the drug at or about the time of the shooting.  (Compare People v. Flannel, supra, 25 Cal.3d at pp. 685–686, 160 Cal.Rptr. 84, 603 P.2d 1 (all five eyewitnesses testified defendant was not drunk;  defendant's testimony on effect of alcohol was equivocal);  People v. Williams (1988) 45 Cal.3d 1268, 1311–1312, 248 Cal.Rptr. 834, 756 P.2d 221 (sole evidence was codefendant's testimony that defendant was “being kind of jumpy” and “acting like he was on LSD”).)   Moreover, Parker's testimony regarding Diaz's need for heroin coupled with Diaz's testimony that Mendoza threatened to cut off his drug supply presented an additional factual question as to whether Diaz entertained the requisite mental state.   On retrial assuming a similar factual record, Diaz would be entitled to CALJIC No. 4.21 or a similar instruction concerning the possible effect of drug usage on mental state, which would of course apply to both malice and premeditation.

II *

DISPOSITION.

JUDGMENT REVERSED.

I respectfully dissent.

On the record in this case and under the law there is no basis for a reversal.   I am concerned with the impression of the defendants' supposed isolation and ongoing terrorized mental state attempted to be conveyed by the majority's presentation of the facts.   In support of the judgment, I recite certain important facts leading to the conclusion the killing of Garcia was a carefully planned, deliberate execution of a drug dealer who was attempting by force and threat of force to remove Mendoza, a rival dealer, and his assistants from Garcia's selling territory in the Sherman district.

FACTS

Two days before the killing, Mendoza discussed the subject with Diaz and Tapia as well as Guisar.   Both Diaz and Tapia agreed to help Mendoza and go kill Garcia.   Tapia obtained a gun from Mendoza, and Diaz obtained bullets for his gun from Mendoza.   Mendoza told them what to do during the murder.   Tapia and Diaz carried out the killing as planned.

The killing on Thursday, May 20, 1982, occurred in the nighttime after Guisar lured Garcia out of his apartment by telling him Mendoza was selling drugs outside.   The well-armed defendants with blackened faces hid in the dark for 40 minutes before Garcia came out.   The defendants approached Garcia from the rear.   According to Tapia, Diaz called out Garcia's name and Tapia immediately commenced firing.   Diaz testified there was no warning.   Tapia shot Garcia in the back three times using the .22 caliber firearm at a distance of two to three feet.   When Garcia fell to the ground, Diaz stepped to within three feet of him and shot him in the face with the .38 pistol.   Garcia was unarmed.

Previously, after Garcia and his confederate Nacho had thrown Mendoza and Tapia out of the K Street apartment the first time, knocking out Mendoza's teeth and hitting Tapia in the back, Tapia returned to the same apartment and with Mendoza continued living with Garcia for a time.   A second violent outburst by Garcia, who hit Mendoza in the face with a gun, resulted in Tapia leaving the apartment permanently ten days before the killing.   Due to these events and threats by Garcia, Tapia was afraid of him.   After the other threats and assaults were made on Diaz, he too was both mad at and afraid of Garcia.

Diaz talked to informant Parker the Sunday before the killing.   Parker noted Diaz was armed with a snub-nosed .22 he carried under his shirt and later reported to police that Diaz “was always armed.”   Diaz told Parker about Garcia and his companion extorting money and heroin and said he was the only one standing up to them.   Diaz mentioned that his brother told him to return to Mexico, but he said he could not do that because his home and family were here and there was nothing for him in Mexico.   Then Diaz said, “I have to kill him.”

Parker testified Diaz, in the conversation with Parker on Sunday, spoke the first words about killing Garcia.   Diaz then asked Parker what he would do and Parker agreed that killing Garcia was his only alternative.   Parker was with Diaz when Garcia threatened him again on each of the next two days.   Parker took the .22 gun from Diaz on Monday before the attack on Diaz by Garcia and Nacho.   When discussing the threat that occurred Tuesday while trying to sell the motor, Diaz told Parker, “[I] need the gun back because I've got to kill him.”   He was referring to Garcia and he said this more than once.   Parker did not see Diaz after the Tuesday preceding the killing, although he talked to him by telephone each evening before the shooting occurred.

DISCUSSION

There is no doubt Garcia and his henchman were toughs whose threats against Mendoza, Tapia and Diaz instilled fear in them.   Nor do I doubt that the defendants were heroin users.   However, it seems clear from the above-recited facts many of which are taken from the testimony of the defendants themselves, that they were not in any position akin to a battered woman experiencing a syndrome involving “unique psychological and behavioral reactions to th[o]se common factors which are exhibited by a person who is living in a violent relationship.”  (Comment, Self–Defense:  Battered Woman Syndrome on Trial (1984) 20 Cal.Western L.Rev. 485, 486.)   Unlike the individual, one-on-one characteristics of the battered woman situation, this killing of Garcia was a group effort, planned well in advance under circumstances leaving plenty of time for reflection and consideration of alternative courses of action, including leaving the area.   That the minds of Diaz and Tapia were not unduly impacted by the use of heroin for purposes of criminal responsibility is evidenced not only by their accurate implementation of the execution plan but by their relatively clear and consistent recall of the events before, during and after the murder.

With respect to the battered woman syndrome-heat of passion analysis of the majority, I cannot accept any parallel application in this case.   That concept involves unique attributes of an ongoing, male-female relationship having no bearing on this case.   In a planned murder factual context there is no basis for concluding a defendant is entitled to a heat of passion instruction based on the battered woman analogy whenever the defendant testifies he feared his dead victim because of some observed threatening conduct by the victim at some time in the past.   Such a conclusion invites perjured testimony of “fearful” events.   It may well encourage the very type of conduct here under review by engendering hopes or expectations of manslaughter in situations that are clearly planned murders.

In this case there is no evidence of “sudden quarrel or heat of passion. ”   (Pen.Code, § 192, subd. (a), emphasis added.)   The heat of passion mitigation defense requires testing the defendant's reason “at the time of the killing.”  (CALJIC No. 8.42.)   The last threatening event, against Diaz, took place two days before the killing.   There was ample time for him to reflect on his wrought up emotions and to consider alternative courses of action.   Instead, he met with Mendoza, Tapia and Guisar and the four of them carefully charted the murder plan.   In Tapia's case, the direct source of any fear of Garcia was very remote in time, 10 days before the date of the killing, and was based on observation or hearing of Garcia's threats toward others.   It is to be noted he returned to the apartment to live with Garcia and Mendoza after Garcia knocked out Mendoza's teeth.   Tapia's claim of ongoing fear based on that act by Garcia was thus weakened if not eliminated.   Even assuming the existence of the ongoing fear the majority attributes to the defendants, it can be said as a matter of law in the case of both Tapia and Diaz that “sufficient time elapsed between the provocation and the fatal blow for passion to subside and reason to return․”  (CALJIC No. 8.42.)

Moreover, from the facts of this case there simply is no evidence to support a conclusion that at the time of the killing the defendants were acting “rashly and without deliberation and reflection, and from passion rather than from judgment.”  (Ibid.;  People v. Logan (1917) 175 Cal. 45, 49, 164 P. 1121.)   To the contrary, the evidence is overwhelming that even though the emotions of fear and anger may have existed in the minds of the defendants, each defendant acted “deliberately and from choice following his own reasoning howsoever good or bad it may be.”  (CALJIC No. 8.44.)   There is here no substantial evidentiary support for giving the heat of passion instruction.  (See People v. Gaulden (1974) 36 Cal.App.3d 942, 951–952, 111 Cal.Rptr. 803.)   I entertain no doubt as to this conclusion.  (See People v. Flannel (1979) 25 Cal.3d 668, 685, 160 Cal.Rptr. 84, 603 P.2d 1.)

Concerning the question of whether the trial court was required to instruct on voluntary intoxication negating specific intent for murder (CALJIC No. 4.21), I agree with the majority's conclusion in Tapia's case that no instruction was warranted because the evidence would not support a reasonable jury's conclusion his heroin use affected his mental processes such that he did not entertain malice.  (People v. Flannel, supra, 25 Cal.3d at p. 684, 160 Cal.Rptr. 84, 603 P.2d 1.)

However, I also believe the same conclusion attends in Diaz's case.   Diaz's testimony he was “really crazy on account of the drugs,” and that he took heroin and cocaine in unspecified amounts “[i]n the morning, at noon, around 3:00, and about half an hour before we went out there to kill him” does not constitute substantial evidence of intoxication.   If anything this testimony shows he was mentally capable of remembering when he took drugs the day of the killing and it demonstrates mental competency in the sense of his awareness of his purpose that day of going out to kill Garcia.

Parker's testimony was about the effect of not taking heroin, particularly on Diaz.   Parker had not seen or contacted Diaz since two days before the killing and thus his opinion Diaz was “strung out” on heroin the day of the killing cannot be viewed as substantial evidence or corroborative of that fact.

Diaz's ex-wife never actually saw him inject heroin and in the phone call on the day of the killing she testified she felt he was under the influence because “he had like a certain tone in his voice, real mellow tone in his voice when he's on drugs, you know.   But he was talking kind of fast.”   This testimony cannot be viewed as substantial evidence of Diaz's intoxication the day of the offense.   Nor does it corroborate any other evidence of intoxication.

As in People v. Williams (1988) 45 Cal.3d 1268, 1312, 248 Cal.Rptr. 834, 756 P.2d 221, the evidence of Diaz's intoxication was at most minimal and did not obligate the court to instruct on voluntary intoxication.   In Williams, the court said “[t]here is no evidence whatever going to the issue whether as a result of his alleged consumption of an undetermined amount of LSD defendant failed to form the requisite criminal intent, nor is the matter of common knowledge to the ordinary juror.”  (Ibid.)  That is the case here.

With respect to the interpreter-borrowing problem which the Supreme Court directed us to consider in light of People v. Rodriguez (1986) 42 Cal.3d 1005, 232 Cal.Rptr. 132, 728 P.2d 202, I am of the view that the error is harmless beyond a reasonable doubt.   First, there is overwhelming evidence of guilt in each case, including testimony by each defendant essentially amounting to a confession each committed murder.   Second, there is no hint of an objection to the borrowing procedure or any problem either defendant may have actually experienced during the trial.   Rather, the record of each trial leads to the contrary conclusion.

In Tapia's trial, for example, before the interpreter was borrowed for purposes of providing her service during the testimony of defense witness Reyna Ruano, Tapia personally consented to the procedure.1  Similarly, in Diaz's trial his counsel told the court he did not see any prejudice to Diaz in the borrowing, and Diaz personally told the court he heard the questions and answers given in Spanish.   After his counsel stated Diaz heard everything, Diaz said, “Everything is all right.”   Later, Diaz personally consented to a borrowing of the interpreter.

Under these circumstances there is no showing “the deprivation actually affected any of the defendant's rights ․ [or resulted in] an interference in consultations between counsel and defendants or in defendants' ability to comprehend fully the witnesses' testimony․”  (People v. Rodriguez, supra, 42 Cal.3d at p. 1015, 232 Cal.Rptr. 132, 728 P.2d 202.)   Accordingly, there is no reversible error based on interpreter borrowing.

I agree with the majority's conclusions the tape recording was properly authenticated and the proffered evidence of Garcia's reputation for violence was not erroneously excluded.   Likewise, as previously mentioned, I agree that there was no evidentiary basis for instructing on imperfect self-defense.   There is no other assertion that furnishes a basis for a reversal.

In view of the foregoing, I would affirm.

FOOTNOTES

2.   The broad outlines of the facts in this case are largely undisputed.   However, because the central issues in this appeal involve the sufficiency of the evidence to support instructions, as to specifics we depart from our usual practice of reciting only those facts which support the judgment.

3.   The record is not totally clear on the precise living arrangements during this period.   Both Tapia and Diaz testified they lived with Manuel and were forcefully expelled from their residences by Garcia, yet neither mentions living with the other.   Although it is not critical to an understanding of the case, we assume for the sake of convenience that all three were living together at this point in time.

4.   Diaz was apparently unaware of Parker's connections with the police.   Eventually, Parker obtained tape recorded admissions from Tapia and arranged for the arrests of both Diaz and Tapia.

5.   Commentators have expressed legitimate concern with the extent to which courts are willing to base legal decisions on assumptions about scientific or social scientific “facts” made with little or no foundational research or expertise in the subject area.  (See generally, e.g., Davis, “There Is a Book Out ․”:  An Analysis of Judicial Absorption of Legislative Facts (1987) 100 Harv.L.Rev. 1539.)   While we have not engaged in extensive readings on the psychology of fear, we nonetheless feel comfortable premising our conclusions on the assumption that fear can intensify over time not only because it is consistent with our own personal and what we believe is universal human experience, but also because the validity of the conclusion does not depend on an empirical testing of the hypothesis.   We are simply acknowledging the possibility that fear can build on itself.   It remains for a jury—often we suspect with the aid of expert psychological testimony—to determine on the facts of a particular case whether a fear of impending doom increased over time to the point of debilitating the defendant.

6.   We have considered and rejected defendants' contention they were entitled to voluntary manslaughter instructions based on an imperfect self-defense approach (see generally People v. Flannel (1979) 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1) because we feel defendants' theory of the case fits best under the heat-of-passion doctrine.   The concept of imperfect self-defense is designed to deal with the situation in which the defendant honestly but unreasonably believes it is necessary to use force to prevent imminent physical harm.   While one can envision situations in which a history of threats and physical abuse might be relevant to show that a defendant honestly but unreasonably (or indeed even reasonably) believed that bodily injury was imminent, here there was no evidence to indicate that either Tapia or Diaz subjectively believed they were in imminent danger when they decided to confront and kill Garcia.

7.   The dissent mistakenly reads the opinion to argue that because Tapia and Diaz were like battered wives, they were entitled to instructions on heat-of-passion voluntary manslaughter.   Defendants were entitled to the instructions because California law has long recognized debilitating fear as a basis for heat-of-passion and the evidence at trial would support the conclusion that a series of provocatory events had created such a fear in defendants.There are both similarities and differences between defendants' situation and that of the typical battered wife.   While they are by no means identical, the cited cases and commentaries provide support by analogy because they discuss the effect of a long series of fear-engendering incidents and reject the notion that a previously battered individual who strikes back at the aggressor is not entitled to a voluntary manslaughter instruction simply because, at the time of the actual killing, there was no threat of imminent harm.

8.   As we read Justice Todd's dissent, our fundamental point of departure is not the legal theory of this case but whether the evidence at trial was sufficient to support the giving of the requested voluntary manslaughter instructions.   Our presentation of the facts was not calculated to create any misleading impressions but, as we explained earlier (ante, fn. 2), we felt obligated to consider the facts in the light most favorable to the defendants and then determine whether such facts were sufficient to support the giving of the requested instructions.  (See People v. Lemus (1988) 203 Cal.App.3d 470, 249 Cal.Rptr. 897.)The facts recited in the dissent accurately describe portions of the evidence at trial and suggest plausible inferences to be drawn from such evidence.   To that extent, they present a more complete picture of the issues which the jury was required to resolve.   But some of the facts referred to are inconsistent with the defendants' testimony and, to that extent, cannot be relied on to support the trial court's decision not to instruct on legal theories which were consistent with such testimony.   As the court explained in People v. Burnham (1986) 176 Cal.App.3d 1134, 1143, 222 Cal.Rptr. 630, “The fact that evidence may be incredible, or is not of such a character to inspire belief, does not authorize the refusal of an instruction based thereon, for that is a question within the exclusive province of the jury.”  (Accord People v. Flannel (1979) 25 Cal.3d 668, 684, 160 Cal.Rptr. 84, 603 P.2d 1;  People v. Lemus, supra, 203 Cal.App.3d at p. 477, 249 Cal.Rptr. 897.)   Thus, even if defendants' version of the events were incredible, which we do not believe it is, a jury question would be presented requiring the giving of appropriate instructions.

9.   CALJIC No. 4.21 reads as follows:“In the crime of _ of which the defendant is accused [in Count _ of the information], a necessary element is the existence in the mind of the defendant of the [specific intent to _] [mental state of _].“If the evidence shows that the defendant was intoxicated at the time of the alleged offense, the jury should consider his state of intoxication in determining if defendant had such [specific intent] [mental state of _].“If from all the evidence you have a reasonable doubt whether defendant formed such [specific intent] [mental state], you must give the defendant the benefit of that doubt and find that he did not have such [specific intent] [mental state].”

10.   We do not mean to preclude Tapia on retrial from presenting testimony, expert or otherwise, demonstrating that his use of heroin did affect his judgment and perception.  (See, e.g., People v. Hayes (1985) 172 Cal.App.3d 517, 218 Cal.Rptr. 362.)

FOOTNOTE.   See footnote 1, ante.

1.   “MS. FRANCO [Defense Counsel]:  Your Honor, perhaps the interpreter can be interpreting this for my client.   I would be willing to try proceeding with the microphone very close to Miss Ruano so my client can hear her testimony in the Spanish language, then, of course, the interpreter translating Spanish into English for the jury.   It simply requires Miss Ruano to keep her voice up so my client can hear.“THE COURT:  For the record, let's have Mr. Tapia concur with that proceeding.(Ms. Franco spoke off-the-record to Mr. Tapia.)“DEFENDANT TAPIA:  Está bien.“MISS RIOS:  (Interpreting for defendant) That's fine.“MS. FRANCO:  I have explained to him the procedure that I am attempting.   He indicates that is satisfactory.“THE COURT:  Do we need anything further for the record, Mr. Carpenter?”

WIENER, Acting Presiding Justice.

WORK, J., concurs.