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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Joe Butch Santana JIMINEZ, Defendant and Appellant.


Decided: December 19, 1986

Michelle Migdal Gee, Oakland, for defendant and appellant. John K. Van de Kamp, Atty. Gen., W. Scott Thorpe and Shirley A. Nelson, Deputy Attys. Gen., Sacramento, for respondent.


Defendant was charged with two counts of murder (Pen.Code, § 187) 1 allegedly occurring on May 18, 1984.   The multiple murder circumstance was alleged.   Defendant was convicted by jury of second degree murder of one of the victims and voluntary manslaughter of the other.   The jury found the special circumstance allegation to be not true.   Defendant appeals from the murder conviction on the ground of instructional error.   We find the trial court did not err in instructing the jury and affirm the judgment.


On May 18, 1984, defendant accompanied by Raquel Gonzales Ruiz (Gonzales Ruiz) and her two-year-old daughter Nereyda Gonzales de Oca (Nereyda) visited Lupe Retamoza at Retamoza's mobilehome in Visalia.   Shortly after defendant's arrival between 4 and 5 p.m. Retamoza and Gonzales Ruiz purchased chicken and french fries at a nearby fast-food market.   Gonzales Ruiz had been shopping earlier in the day and showed Retamoza about $100 wadded up in her hand.   The group sat around talking, drinking Budweiser beer and eating for two to three hours.   During the visit Retamoza teased defendant about his association with Gonzales Ruiz and with another woman.

Sometime during the visit, Nereyda was leaning against the door of Retamoza's trailer when the door suddenly opened and the child fell backwards from the trailer onto the pavement.   Retamoza described the accident as a pretty hard fall.   Retamoza had not observed any arguments or harsh words between defendant and Gonzales Ruiz until defendant announced he was ready to leave at about 7 p.m.   Gonzales Ruiz was not ready to go, and although the two disagreed, the argument was not a heated one.

Also present at Retamoza's home during defendant's visit on May 18 was Angelita Lewis, a neighbor of Retamoza's in the trailer park.   Lewis testified there had been no problems between defendant and Gonzales Ruiz before they got ready to leave although defendant might have been angry because Gonzales Ruiz was paying too much attention to Retamoza's 19– to 20–year-old son, Martin.   Gonzales Ruiz, who had initially objected to leaving, entered the pickup before defendant and became angry when he did not immediately join her since it had been his idea to leave.   Lewis thought defendant was also upset because he was having some trouble starting the pickup.   Lewis had made arrangements to meet Gonzales Ruiz at a bar the next evening.   She had invited Gonzales Ruiz to spend the night in her trailer because Lewis wanted to socialize with Gonzales Ruiz and also because Lewis was “kind of worried about her” since defendant was angry and had been drinking.

On May 19, 1984, the bodies of Gonzales Ruiz and Nereyda were discovered about one-quarter mile south of the town of Seville off a dirt road which connected Road 156 to the railroad tracks.   After this discovery was reported to the Tulare County Sheriff's Office, Harold Jones, a detective in the violent crimes unit, responded to the scene of the deaths.

According to Jones the dirt on the road near the location of the bodies was very hard and crusty, but on either side of the road the field was freshly plowed.   Jones could see a faint impression of tire tracks in the plowed ground, indicating to Jones that a vehicle had left the road, proceeded through a small area of dry brush and olive trees, and circled back to the road.   Jones also observed the two bodies lying side by side, with the child apparently placed under her mother's right armpit.   Jones discovered a house key with a cloverleaf design lying between the bodies and saw about four Budweiser beer cans lying in the area.

Ralph Diaz, also with the Tulare County Sheriff's Office violent crimes unit, noted that Gonzales Ruiz had scratches on her right jaw and cheek, a scratch over her left eyebrow, and scratches on one elbow and on her thigh.   It looked like “somebody had grabbed her from the throat or around the chin towards the throat.”   Apart from a small scratch on one hip and a small scratch on her back, Diaz observed nothing remarkable about Nereyda's body.   He saw nothing to suggest what had caused Nereyda's death.

Like Detective Jones, Diaz observed tire tracks and saw the key ring later established to hold Gonzales Ruiz's house keys, a single crumpled dollar bill, and four Budweiser beer cans which appeared not to have been there long.

James Schwabenland, the criminalist who worked on the case, testified he lifted fresh fingerprints from one of the Budweiser beer cans and took fresh tire track impressions.   He concluded that both the fingerprint and the tire tracks were not more than 24 hours old.   Later, Vernon Hensley, the sergeant supervisor of the criminal laboratory with expertise in analysis of both tire impressions and fingerprints, testified the tire track impressions could have been made by either of the two front tires on defendant's pickup and the print lifted from the beer can matched the fingerprint of defendant's left ring finger.

Dr. Leonard Miller, a pathologist, performed autopsies on both victims on May 20, 1984.   He concluded that the cause of Gonzales Ruiz's death was suffocation associated with alcohol intoxication;  Gonzales Ruiz had a blood alcohol level of 0.19.   Miller opined that this blood alcohol level would make the victim easier to suffocate, and based on the appearance of her face he concluded that “some object was held over the nose and mouth, interfering then with the mechanics of breathing.”   This object could have been a hand, based on facial abrasions and bruises.   Analysis of Gonzales Ruiz's stomach contents revealed that she had eaten chicken within three hours of her death.

Following the autopsy of Nereyda, Miller concluded she had choked to death on her own vomit.   After learning that her face was clean when her body was found, he opined that her mouth had been covered to prevent any vomit from escaping through her mouth.

Detective Jones was recalled and testified that he Mirandized defendant and took a statement from him on May 21.   After advising defendant of the deaths of Gonzales Ruiz and Nereyda on Friday night or early Saturday morning, Jones asked defendant when he had last seen the victims.   Defendant responded he had not seen either of them since he took Gonzales Ruiz to the market at her request a week and two days prior to the interview.   He testified he had last seen the two in Seville the preceding Thursday, but they were in someone else's car, not his.

The prosecution's last witness was defendant's daughter, Rosemary Jiminez, who testified she had spoken to her father about his relationship with Gonzales Ruiz prior to her death.   Defendant told his daughter Gonzales Ruiz had said, “she would do whatever she had to get money from him, say anything to get money from him.”   On cross-examination Jiminez acknowledged she had initiated other conversations with her father about “those women” because of Gonzales Ruiz's reputation as a prostitute, a child abuser, a drug addict, and an alcoholic.   Gonzales Ruiz had threatened to make false allegations about defendant to the police.

Defense Case

Apart from recalling Angelita Lewis and impeaching her with testimony that she had told a defense investigator defendant and Gonzales Ruiz were not arguing on May 18, defendant's only other witness was Dr. Thomas Nelson, a forensic patholgist.   Dr. Nelson had not examined the bodies of Gonzales Ruiz and Nereyda, but he had reviewed Dr. Miller's findings and reports.   The crux of Dr. Nelson's testimony was his conclusion that Nereyda had probably suffered a concussion as the result of the fall she had earlier taken from Retamoza's trailer onto the pavement.   Nelson went on to testify that it was not uncommon for the victim of a concussion to later suffer a convulsion which could easily include vomiting and cause the victim to choke to death on the vomit.


Although defendant attacks the issue from several angles, the sole issue presented by defendant on this appeal is whether the trial court erred in instructing the jury with the standard form of CALJIC No. 8.40 (4th ed. 1986 pocket pt.) 2 defining voluntary manslaughter.   The court first instructed the jury with CALJIC No. 8.37 (4th ed. 1979) and followed it with CALJIC No. 8.40 as follows:

“The crime of manslaughter is the unlawful killing of a human being without malice aforethought.   It is not devided [sic ] into degrees, but is of two kinds, namely, voluntary manslaughter and involuntary manslaughter.  [CALJIC No. 8.37 (4th ed. 1979).]

“The crime of voluntary manslaughter is the unlawful killing of a human being without malice aforethought when there is an intent to kill.   There is no malice aforethought if the killing occurred upon a sudden quarrel or heat of passion.

“In order to prove the commission of the crime of voluntary manslaughter, each of the following elements must be proved:  One, that a human being was killed;  two, that the killing was unlawful;  and three, that the killing was done with the intent to kill.  [CALJIC No. 8.40, emphasis added.]”

The emphasized portions of CALJIC No. 8.40 are those to which defendant objects and specifically claims error by the inclusion of specific intent to kill as an element of voluntary manslaughter.

The gist of defendant's argument is that because CALJIC No. 8.40 included as a necessary element of voluntary manslaughter the specific intent to kill, the instruction precluded the jury from considering whether defendant had been adequately provoked into committing the act resulting in the death of Gonzales Ruiz if the jury believed only that defendant had acted in conscious disregard for life but not with the specific intent to kill.   Defendant points out that the jury was also instructed with CALJIC No. 8.11, defining malice aforethought and differentiating between express malice “when there is manifested an intention unlawfully to kill a human being” and implied malice, which may be found in the doing of an intentional act knowing the life of another is endangered but nonetheless acting with conscious disregard for life.3

The effect of the quoted instructions, defendant argues, is that the jury was precluded from considering the mitigating effects of provocation unless they found defendant acted with the express intent to kill.   If the jury found such express intent but determined defendant had been adequately provoked, the express malice which is established by proof of a manifest intent to kill would be vitiated by proof of adequate provocation.   However, if defendant had not formed the express intent to kill but acted only in conscious disregard for human life, which establishes nothing more than implied malice, the mitigating effects of any provocation would be irrelevant, and the jury would be forced to find defendant guilty of second degree murder.   Defendant contends this is neither legally nor logically sound since the more blameworthy state of mind, i.e., express intent to kill, would result in a lesser punishment than that necessarily imposed for acts committed without an express intent and, consequently, a less culpable mental state.   Defendant points out that his complaint about the instructions to the jury in this case raises “an issue that is to [his] knowledge unique in the history of California law.”

The People first respond to the issue by noting the jury was instructed with standard approved CALJIC instructions.   Hence, defendant should have sought modification of those instructions from the trial court to preserve the issue for appeal.   The People rely on People v. Burrows (1968) 260 Cal.App.2d 228, 230, 67 Cal.Rptr. 28.   Defendant counters by arguing the trial court was obliged to instruct the jury correctly, and CALJIC No. 8.40 was incorrect as written.   On this basis defendant contends his failure to seek modification does not preclude raising the issue on appeal.

Since we believe CALJIC No. 8.40 is correct as written, subject to requested modification in an appropriate case, the People have the better argument.   However, because the correctness of CALJIC No. 8.40 cannot be demonstrated without an exploration of the merits of defendant's claim, we elect to resolve defendant's appeal on the merits rather than on a technicality.

Defendant argues that a killing done with conscious disregard for life and therefore with implied malice is a killing to which intent to kill is imputed or implied and is thus a proper subject for mitigation based on the adequate provocation of a sudden quarrel or of the heat of passion.   Defendant relies upon the decision of the California Supreme Court in People v. Doyell (1874) 48 Cal. 85.   In discussing homicides adjudged to be murder despite lack of a manifest intent to kill, the court includes those killings committed in the course of an unlawful act which naturally tends to destroy life or unlawful killings evidencing “an abandoned and malignant heart,” and concludes, “[i]n these, and in like cases, the malice aforethought is implied, the law attributing to the slayer the intent to kill, although such intent is not made manifest as a fact.”  (Id. at p. 95, emphasis added.)   Defendant also argues that since the statutory definition of voluntary manslaughter does not include intent to kill and since those cases which have defined voluntary manslaughter as requiring such intent have done so only by way of dictum, there is no impediment to finding CALJIC No. 8.40 erroneous as a matter of law.   We disagree.

 Considering first the decisional law, apart from those cases specifically discussed by defendant, as recently as its decision in People v. Wickersham (1982) 32 Cal.3d 307, 185 Cal.Rptr. 436, 650 P.2d 311, the California Supreme Court has reiterated, albeit in passing, the intentional element of voluntary manslaughter.   Discussing the offenses necessarily included in a charge of murder, the court in Wickersham noted that “[n]ormally, an intentional killing is at least second degree murder, but such a killing is voluntary manslaughter if ‘shown to have been committed in a heat of passion upon sufficient provocation․’ ”  (Id. at p. 325, 185 Cal.Rptr. 436, 650 P.2d 311, emphasis added.)   Of course, such a comment is easily characterized as dictum, but this particular dictum, if such it is, has necessarily gained a certain respectability with age since it appears to be a common legal assumption, never questioned and therefore never discussed.   Moreover, a dictum of the Supreme Court has been considered binding on the Court of Appeal in the same manner as an express holding.  (Hickman v. Mulder (1976) 58 Cal.App.3d 900, 902, 130 Cal.Rptr. 304.)

In People v. Valentine (1946) 28 Cal.2d 121, 169 P.2d 1 the court was faced with a challenge to the accuracy of jury instructions given in a murder prosecution.   In concluding that the instructions were, in fact, erroneous, the court identified one basis of error in that “[t]he jury were told that the existence of a specific intent to kill (which, of course, exists in voluntary manslaughter and in second degree murder as well as in some types of first degree murder) constitutes a homicide murder of the first degree;  ․”   (Id. at pp. 130–131, 169 P.2d 1, emphasis added.)   The court in Valentine went on to conclude that it is the deliberate intent to kill which is not an essential element of murder in general but only of that species of first degree murder identified as willful, premeditated and deliberate.

Similarly, in People v. Forbs (1965) 62 Cal.2d 847, 44 Cal.Rptr. 753, 402 P.2d 825, the court commented on the mental elements of voluntary manslaughter only after deciding defendant's conviction must be reversed based on erroneous admission of defendant's incriminating statements.   Although the court's comments on the sufficiency of the evidence were, technically, unnecessary to its holding that the conviction be reversed and thus subject to be characterized as dictum, the comments, like those in Valentine, obviously contribute to the body of “dictum” which underlies CALJIC No. 8.40.   In Forbs, the court addressed the defendant's contention that her conviction of voluntary manslaughter was not supported by sufficient evidence since the prosecution failed to prove she intended to kill her child.   The court stated, “Penal Code section 192 defines voluntary manslaughter as ‘the unlawful killing of a human being, without malice ․ upon a sudden quarrel or heat of passion.’   It ‘is a wilful act, characterized by the presence of an intent to kill engendered by sufficient provocation and by the absence of premeditation, deliberation and (by presumption of law) malice aforethought.’  [Citations.]”  (Forbs, supra, 62 Cal.2d at p. 852, 44 Cal.Rptr. 753, 402 P. 825.)

Of the cases which defendant specifically discusses and characterizes as noncontrolling with respect to the intent element of voluntary manslaughter, People v. Germany (1974) 42 Cal.App.3d 414, 116 Cal.Rptr. 841 is a case decided by this court in which the defendants objected to modification of CALJIC No. 2.02 (3d ed. 1970) by substituting criminal intent for specific intent.   This court found error since “[v]oluntary manslaughter is a specific intent crime (People v. Gorshen (1959) 51 Cal.2d 716, 732–733 [336 P.2d 492] ․).”  (Id. at p. 418, 116 Cal.Rptr. 841.)   Defendant characterizes the Supreme Court's comments on the intentional element of voluntary manslaughter in People v. Gorshen (1959) 51 Cal.2d 716, 336 P.2d 492, on which this court relied in People v. Germany, supra, as “merely a passing reference, in no way essential to its ultimate holding, and clearly dictum.”   We think defendant's reading of the case is too strict and, in any event, ignores its binding effect on the lower court.

Admittedly, this court in People v. Germany was specifically concerned with the doctrine of diminished capacity resulting from voluntary intoxication insofar as such diminished capacity actually impacted upon an accused's ability to formulate the graduated mental states reflected in the varying degrees of homicide.   In its somewhat lengthy discussion, the Supreme Court in Gorshen discusses express and implied malice frequently in conjunction with the intent to kill and recognizes that while malice is a necessary element of murder of whatever degree, specific intent to kill is not a necessary element of second degree murder but only of first degree murder which is willful, premeditated, and deliberate, as well as “implicit in the statutory description of the kind of manslaughter which we are here discussing (‘the unlawful killing of a human being ․ Voluntary’;  Pen.Code, § 192.)”  (People v. Gorshen, supra, 51 Cal.2d at pp. 732–733, 336 P.2d 492.)   Moreover, in People v. Ray (1975) 14 Cal.3d 20, 28, 120 Cal.Rptr. 377, 533 P.2d 1017, the court stated, “The unlawful killing of a human being with malice aforethought is murder․   If because of diminished capacity the perpetrator is unable to entertain malice but nevertheless is found to be able to form the intent to kill the crime is voluntary manslaughter.   If because of his diminished capacity he additionally did not intend to kill, his crime, if any, is involuntary manslaughter.  [Citation.]”  (Emphasis added.)

 In addition, Witkin cites People v. Forbs, supra, 62 Cal.2d 847, 44 Cal.Rptr. 753, 402 P.2d 825 for the premise that both voluntary manslaughter and murder require the intent to kill.  (1 Witkin, Cal.Crimes (1985 supp.) Crimes Against the Person, § 331, p. 340.)   The court in People v. Valentine, supra, 28 Cal.2d 121, 169 P.2d 1 stated that intent to kill is an element of voluntary manslaughter;  the absence of discussion and explication does not render reliance on an established principle of law “mere dictum.”   (Id. at pp. 130–131, 169 P.2d 1.)   Thus, we conclude CALJIC No. 8.40 correctly defines voluntary manslaughter as encompassing the intent to kill and there was no error in the instructions to the jury in this case.

Even though defendant's argument might have merit in an appropriate case, we believe the correctness of the jury instructions given here is virtually unassailable in light of defendant's apparent theory of the case and the defenses offered.   As the court pointed out in People v. Wickersham, supra, the potential for prejudice to defendants is obvious “ ‘if instructions [are] given on defenses inconsistent with the theory relied upon.’  [Citation.]”  (People v. Wickersham, supra, 32 Cal.3d at p. 326, 185 Cal.Rptr. 436, 650 P.2d 311.)   The only defense to the charge of first degree murder of Gonzales Ruiz suggested by the evidence is the mitigating effect of adequate provocation, i.e., defendant's “theory of defense” is that he was only guilty of voluntary manslaughter in the death of Gonzales Ruiz.   Significantly, in his argument to the jury, defense counsel mentioned more than once that the death of Gonzales Ruiz was an intentional act.

Moreover, and of particular significance in light of defendant's argument on appeal, the jury was not instructed with CALJIC No. 8.31, which defines second degree murder based on implied malice arising (1) from an intentional act involving a high degree of probability that it will result in death when such act is done for a base and antisocial purpose or (2) from an intentional act dangerous to life committed in conscious disregard for human life.   The jury was instead instructed only with CALJIC No. 8.30 (4th ed. 1979) which defines unpremeditated murder of the second degree as “[m]urder of the second degree is also the unlawful killing of a human being with malice aforethought when there is manifested an intention unlawfully to kill a human being, but the evidence is insufficient to establish premeditation and deliberation.”

Although defendant argues in his reply brief that the People's discussion of the facts in this case is “specious,” we believe the manner of death in this case is significant.   Defendant killed Gonzales Ruiz by holding his hand over her nose and mouth until she suffocated.   As the People point out, such a death is hardly instantaneous, and under these circumstances intent to kill is apparent from the manner of death.   Therefore, with respect to Gonzales Ruiz, not only was the jury instructed that a verdict of second degree murder depended upon manifestation of an intent to kill, but defense counsel made clear, and reasonably so, that intent to kill was conceded.   There is nothing to suggest that defendant contended he was provoked into committing acts in conscious disregard for human life, and thus there is no basis for defendant's argument that the jury might have believed his acts were not intended to kill but simultaneously believed they were precluded from considering voluntary manslaughter because of an erroneous jury instruction.

 In an appropriate case, we believe a defendant could be entitled upon request of the court to a modification of CALJIC No. 8.40 and, possibly, CALJIC No. 8.31.   An appropriate case would be one in which the defendant's theory of the case is that he had been adequately provoked into acting with conscious disregard for human life, albeit not an intent to kill.   Since People v. Doyell, supra, 48 Cal. 85 does hold that acts such as those which give rise to an implication of malice also impute to the actor an intent to kill, a defendant who contends he was provoked into acting in conscious disregard for human life might request the trial court instruct the jury with the following modification of CALJIC No. 8.40:

“The crime of voluntary manslaughter is the unlawful killing of a human being without malice aforethought when there is an intent to kill or a conscious disregard for human life.

“There is no malice aforethought if the killing occurred upon a sudden quarrel or heat of passion, [or] [in the honest but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury].

“In order to prove the commission of the crime of voluntary manslaughter, each of the following elements must be proved:

“1. That a human being was killed,

“2. That the killing was unlawful, and

“3. That the killing was done with the intent to kill, or with a conscious disregard for human life.”

Likewise, the definition of second degree murder resulting from an unlawful act dangerous to human life, CALJIC No. 8.31, might be modified in a similar vein, to wit:  “When the killing is the direct result of such an act, it is not necessary to establish that the defendant expressly intended that his act would result in the death of a human being since intent to kill is imputed to his actions as a matter of law.”  (Emphasis added.)

These modifications would be warranted in a case in which defendant, having been adequately provoked, acts in conscious disregard for human life since the alternative, as defendant in the instant case argues, is to impute to such a defendant a higher degree of culpability than another defendant, similarly situated, whose mental state actually reaches an express intent to kill and is, therefore, more blameworthy.   There is, of course, an alternative, since a killing which is unintentional as well as without malice can be no more than involuntary manslaughter.  (See, e.g., People v. Ray, supra, 14 Cal.3d at p. 28, 120 Cal.Rptr. 377, 533 P.2d 1017;  see also CALJIC No. 8.45 defining involuntary manslaughter as “the unlawful killing of a human being without malice aforethought and without an intent to kill.”)   However, from a practical standpoint, it is improbable a jury would find that a defendant, operating under the heat of passion or on a sudden quarrel, who commits an act dangerous to human life with conscious disregard for such life is entitled to the degree of mitigation inherent in a conviction of involuntary manslaughter.   However, beyond this lack of practical appeal, the modified instructions proposed more accurately reflect the degree of culpability which should attach to conduct like that hypothesized, treating alike those defendants who kill another in the heat of passion whether they actually formulate the intent to kill or merely act in conscious disregard for whether they cause death or not.   We reiterate that this is simply not a proper case for the modifications discussed.

The judgment is affirmed.


1.   Further statutory references are to the Penal Code unless otherwise indicated.

2.   Further references to CALJIC are to the fourth edition, 1986 pocket part, unless otherwise noted.

3.   As actually instructed, the jury was told:“Malice may be either express or implied.   Malice is express when there is manifested an intention unlawfully to kill a human being.“Malice is implied when the killing results from an intentional act involving a high degree of probability that it will result in death, which acts done for base, antisocial purpose and with a wanton disregard for human life or when the killing results from intentional act, the natural consequences of which are dangerous to human life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life[.]  [W]hen it is shown that a killing resulted in the intentional doing of an act with expressed or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.“The mental state constituting malice aforethough [sic ] does not necessarily require any illwill [sic ] or hatred of the person killed.“Aforethought does not imply deliberation or the lapse of considerable time.   It only means that the required mental state must precede rather than follow the act.”

HAMLIN, Associate Justice.

FRANSON, Acting P.J., and BALLANTYNE, J., concur.